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Ret. Bd. of the Emples. Ret. Sys. of Providence v. Corrente

Supreme Court of Rhode Island

March 9, 2015

Retirement Board of the Employees' Retirement System of the City of Providence
v.
Frank E. Corrente and Angel Taveras, in his capacity as the Mayor of the City of Providence (intervenor) and the City of Providence (intervenor)

Providence County Superior Court. (PB 08-6508). Associate Justice Michael A. Silverstein.

For Plaintiff: Raymond A. Marcaccio, Esq.

For Defendant: John D. Plummer, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Justice Robinson, dissenting.

OPINION

Page 302

Suttell, Chief Justice

These cases arise from a decision of the Retirement Board of the Employees' Retirement System of the City of Providence (board) to reduce the pension of former city employee Frank E. Corrente. Corrente had been employed by the city during two separate time periods; following a federal investigation known as " Operation Plunder Dome," Corrente was convicted on six criminal charges stemming from his employment during the second time period. Pursuant to the " Honorable Service Ordinance" (HSO), Chapter 17, Article VI, § 17-189.1 of the City of Providence Code of Ordinances (as enacted in 1999),[1] the board voted to reduce Corrente's pension benefits and filed a miscellaneous petition in the Superior Court requesting that the court confirm its decision. The mayor and the City of Providence (intervenors) moved to intervene under Rule 24 of the Superior Court Rules of Civil Procedure.[2] After allowing the intervention, a Superior Court justice confirmed the board's decision to

Page 303

reduce Corrente's pension. The intervenors appealed the order of the Superior Court confirming the board's decision, and the board cross-appealed the trial justice's decision granting the intervenors' motion to intervene. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court and remand the matter to the Superior Court with instructions to conduct further proceedings, in the discretion of the trial justice, in a manner consistent with this opinion.

I

Facts and Procedural History

The underlying facts in this case are not in dispute. Frank E. Corrente was employed by the City of Providence from June 26, 1967 to April 12, 1987, first as a financial specialist and later as City Controller. Corrente retired in 1987 and began receiving a monthly pension of $1,852.61, based on a gross salary of $42,085.45 and twenty-five years of service. Corrente continued to receive this pension until he returned to employment with the city on December 31, 1990 as the Director of Administration under then-mayor Vincent A. Cianci, Jr.[3] On July 4, 1999, Corrente retired from this second period of employment and at that time began receiving a monthly pension benefit of $5,881.30 based on a gross salary of $91,656.58 and more than thirty-three years of service.

On June 24, 2002, following a federal investigation, Corrente was convicted of six felony counts, including: conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) statute; violation of the RICO statute; conspiracy to commit bribery; conspiracy to commit extortion; and two counts of attempted extortion. Corrente was sentenced to serve fifty-six months in prison.

On October 23, 2002, the board voted to suspend Corrente's pension benefits, subject to a hearing as to whether his pension should be permanently reduced or revoked. The board appointed Larry J. Ritchie, Professor of Law at Roger Williams University School of Law, to be the independent hearing officer for the matter. On November 2, 2006, Corrente was discharged from prison; thereafter, on December 27, 2007, a hearing was conducted pursuant to the HSO, § 17-189.1(a)(5).

Following the hearing, Prof. Ritchie issued a written report and recommendation to the board. The hearing officer found that all the crimes Corrente committed took place during the second period of his employment. He recommended that the board reduce Corrente's pension by revoking that portion of the benefit that was earned during the second period of employment, leaving the portion based on the first term of employment intact. Further, the hearing officer recommended that the board return the contributions that Corrente had made to the pension during the second period of employment. On August 13, 2008, the board voted to adopt the hearing officer's recommendations.

In accordance with § 17-189.1(a)(5), the board then filed a civil action in Superior Court to confirm its decision to reduce Corrente's pension. The action was styled as a miscellaneous petition, with Corrente named as the respondent. Corrente filed an answer to the board's miscellaneous petition, in which he also requested that the court confirm the board's decision.[4]

Page 304

On January 29, 2009, the mayor filed a motion to intervene as a matter of right pursuant to Rule 24(a), arguing that the interests of the mayor and the city were not adequately represented in the action. After a hearing on March 13, 2009, the trial justice granted the motion to intervene.

Shortly thereafter, the trial justice ordered that five related cases, including the board's case against Corrente, be consolidated[5] for purposes of addressing three common legal issues of first impression regarding the HSO: (1) whether a criminal conviction was needed before the board was authorized to take action to revoke or reduce municipal pensions pursuant to the HSO; (2) whether the Superior Court had jurisdiction to review civil actions filed by the board pursuant to the HSO; and (3) what was the appropriate standard of review to apply when reviewing civil actions filed by the board pursuant to the HSO. In September 2009, the trial justice issued a decision regarding these issues, finding that: (1) a criminal conviction was not a prerequisite to board action under the HSO; (2) the Superior Court had jurisdiction over civil actions filed by the board pursuant to the HSO under its general equity powers and its declaratory judgment powers; and (3) the appropriate standard of review was the standard used for administrative appeals, as set forth in the Administrative Procedures Act, G.L. 1956 § 42-35-15.

John Ryan, a plaintiff in one of the consolidated cases, appealed to this Court. See Ryan v. City of Providence, 11 A.3d 68, 70 (R.I. 2011). Ryan had filed a declaratory-judgment action against the board to determine his rights under the HSO and had not been convicted of any crimes related to his employment. Id. at 69. On appeal, this Court held that a criminal conviction was a prerequisite to board action under the HSO. Id. at 76. Because the disposition of that suit completely resolved Ryan's case, this Court did not reach the issues of jurisdiction and standard of review. Id.

Following our decision in Ryan, the board filed a motion for summary judgment in the Superior Court. The intervenors opposed the motion and filed a cross-motion for summary judgment. A hearing was held on June 23, 2011 and, thereafter, the trial justice issued a written decision denying the intervenors' motion for summary judgment and granting summary judgment to the board, confirming its decision to reduce Corrente's pension.[6] Judgment was entered on October 18, 2011; the intervenors filed a timely appeal, and the board then filed a timely cross-appeal of the order granting the motion to intervene. [7]

Page 305

Corrente did not file an appeal; consequently, he is not a party ...


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