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Paul J. DURKIN vs. BOSTON RETIREMENT BOARD
Paul J. DURKIN vs. BOSTON RETIREMENT BOARD. No. 12-P-741. Bristol. Dec. 4, 2012. - Jan. 18, 2013. Police, Retirement. Pension. Public Employment, Forfeiture of pension, Police. Municipal Corporations, Pensions, Police. CIVIL ACTION commenced in the Taunton Division of the District Court Department on October 13, 2011. The case was heard by Francis J. Marini, J. After the filing of an action in the nature of certiorari in the Supreme Judicial Court for the county of Suffolk, the case was transferred to the Appeals Court. Joseph G. Sandulli for the plaintiff. Timothy J. Smyth for the defendant. Present: Kantrowitz, Katzmann, & Hanlon, JJ. KANTROWITZ, J. In this pension forfeiture matter, we hold that the criminal actions of Paul J. Durkin were directly linked to his position as a police officer. As such, we affirm the decision of a judge of the District Court that determined that the Boston retirement board (board) correctly decided that Durkin's pension was forfeited. Facts. Durkin was a Boston police officer. On June 21, 2006, after finishing his afternoon shift, he went to an evening cookout at the Dorchester Yacht Club. He attended the cookout in civilian clothes and carried his department-issued firearm in his off-duty holster on his hip, as was permitted. Sometime after midnight, after consuming alcohol at the cookout, Durkin left and drove to a lounge in the Dorchester area of Boston, where he continued to drink. As Durkin was leaving the lounge, a fellow police officer, Joseph Behnke, believing Durkin too intoxicated to drive, suggested that Durkin sleep at Behnke's house in the West Roxbury area of Boston. Durkin agreed. Upon their arrival at Behnke's house, Durkin, who had fallen asleep during the drive, woke up, left the car, and started walking "in a highly intoxicated state" in a direction away from Behnke's house. Behnke followed Durkin on foot, asking him to come back to the house. In response, Durkin, from a distance of five to six feet, pulled out his weapon and fired one shot at Behnke, striking him near his hip. In response, Behnke shouted, "I've been shot, Paul, you shot me!" Durkin walked away, and while leaving the scene called a friend on his cellular telephone and asked to be picked up and driven away. On April 23, 2007, Durkin pleaded guilty to assault and battery by means of a dangerous weapon. [FN1] On March 31, 2009, he applied to the board for deferred superannuation retirement. Upon receiving no response, he requested a hearing. At the subsequent July 15, 2011, board hearing, Durkin acknowledged, among other things, that "the most important duty of a police officer is to protect life." On September 22, 2011, the board voted, pursuant to G.L. c. 32,

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