Unfinished pension reform business; State panel supposed to look at public employee disability pensions.
When state lawmakers approved a final round of pension reforms nearly a year ago, they left some unfinished business, including making changes to public employee disability pensions.
But nine months after the governor signed the pension bill into law, a commission that was supposed to study what reforms were needed to accidental disability pensions has not only never met, but as of last week, its members still had not all been appointed.
For some, the recent news that retired state police Col. Marian J. McGovern of Millbury, 58, was approved for a disability pension after serving three years atop the force with a previously diagnosed heart condition has highlighted the need to look closely at the criteria for allowing public safety personnel to retire with tax-free disability pensions.
The former colonel surprised some observers by not mentioning the disability when she announced her retirement in June. It was disclosed late last month when the pension was approved by a medical board in a 2-0 vote with the state police superintendent's designee on the three-member panel abstaining.
The Massachusetts law that presumes that police officers, firefighters and correction officers who have heart disease incurred the condition while on the job has been on the books for decades, before the widespread availability of effective medications and therapies for heart problems and hypertension, said state Rep. Todd M. Smola, R-Palmer.
"These ideas about disability came about when science and technology isn't what it is today," said Mr. Smola, a member of the Legislature's Public Service Committee, which oversaw the pension reform. "What we have failed to do is to update this standard. It's long overdue."
Uniformed state police who retire on accidental disability receive 72 percent of their highest three years (five years for new employees) salary, tax free. The former colonel put in 33 years with the state police and made $209,000 as superintendent.
Former Col. McGovern will get an annual pension of about $163,000. Most public pensions in Massachusetts are state tax free because state employees do not receive Social Security, but by not paying federal taxes because hers is a disability pension, she will likely save about $25,000 a year, The Boston Globe reported.
Under the law, public safety personnel eligible for disability pensions must have successfully passed a physical examination that failed to reveal any evidence of such a heart condition. The employee must become incapacitated by the condition while working.
In former Col. McGovern's case, however, while state officials have acknowledged that Gov. Deval L. Patrick's administration knew about her heart condition before the governor made her the first-ever female top commander of the state police in 2009, the important distinction is that she was not hired, but rather elevated from the ranks.
"When she was promoted, she had already been a state trooper," said Michele E. Randazzo, a Boston lawyer who specializes in disability law and chairs the Massachusetts Bar Association's public law section.
Ms. Randazzo noted that while the condition did not prevent Col. McGovern from working until she retired in June, "like any condition, it can progress."
Ms. Randazzo also noted that, because of the presumption built into the law, there is little employers can do to rebut claims if the three-physician medical panel concurs that a serious condition exists.
"It's a legislative decision. It can be difficult to go against the presumption," she said.
State police spokesman David Procopio said former Col. McGovern was appointed because she was the most qualified person for the position.
"The gubernatorial administration, rightly, does not view pre-existing medical conditions as disqualifiers for appointed positions," Mr. Procopio said. "Further, the colonel's tenure leading the department was testimony to the fact that her medical condition - while quite serious and deemed job-related under the heart bill - nonetheless did not impede her professional performance in any way."
Other defenders of former Col. McGovern say they have no reason to doubt that her disability is genuine.
"I don't know her medical history, but I do know that it's legal for her to put in for a disability retirement," said Rep. John J. Binienda, D-Worcester, a longtime acquaintance of the former colonel. "Marian is a super upstanding person and would never do something that's not legal or on the up and up. As for her honesty and sincerity, you can't find a better person than Marian."
While former Col. McGovern is the most recent state police superintendent to go out on disability, she is not the first. Another former state police colonel who retired on disability, Thomas J. Foley of Worcester, said he had a heart condition originally caused by a lung infection he picked up on the job, which is now controlled by medication.
After retiring, former Col. Foley was elected to the Governor's Council and ran unsuccessfully for sheriff in 2009 in a race in which his disability pension became an issue. A longtime mentor and supporter of former Col. McGovern, he declined to comment for this story.
Meanwhile, with Massachusetts among 20 states that use the heart presumption for public safety personnel, and among six states that presume hypertension as job related for police and firefighters, there appears some movement to reform decades-old disability pension laws as states look at ways to trim escalating pension costs.
"There's concern in a lot of states about the rate of disability retirement and some attention is being given to fine-tuning the criteria for disability retirement to control the rate of retirement," said Ronald Snell, a senior fellow with the National Council of State Legislatures.
The issue may finally start to get some scrutiny.
Rep. John W. Scibak, D-South Hadley, House chairman of the Public Service Committee, said he expects the disability pension commission specified in the pension reform law to be organized soon and hold its first meeting in the fall. It remains to be seen if the commission's work will lead to legislation.
"The commission needs to examine closely how we take preventative measures to keep our public safety officials safe, so we see less of a need for disability pensions," said Rep. Ryan C. Fattman, R-Sutton, a member of the commission. "We also need to consider pre-existing conditions and presumptions when we are hiring people for high-stress, even dangerous, positions of authority."
A spokesman for the State Police Association of Massachusetts, the troopers' union, declined to comment.
Contact Shaun Sutner by email at firstname.lastname@example.org.
CUTLINE: Marian McGovern, who headed the state police for three years, was approved for a disability pension a month after she retired in June.
PHOTOG: JOHN FERRARONE file photo