Notwithstanding G.L. c. 32, §91A, or any other general or special law to the contrary, Daniel J. Brophy shall continue to be paid the retirement allowance to which he is entitled pursuant to G.L. c. 32, §16(1)(c) without offset related to any income he receives as a police officer in Florida.

The Public Employment Retirement Administration Commission is hereby directed to report to the Committee the identity of every individual, involuntarily retired pursuant to G.L. c. 32, §16, it has deemed to have received excess income under G.L. c. 32, §91A and the amount of excess earnings it has ascribed to the individual so identified over the five year period preceding the effective date of this state.

In its report, the Public Employment Retirement Administration Commission may make any recommendations for legislative changes it deems appropriate to ensure that individuals who are retired involuntarily, as opposed to those who themselves seek disability retirement, are not unduly limited with respect to future earnings.

G.L. c. 32, §91A does not apply to Daniel Brophy because he was forced into involuntary retirement pursuant to G.L. c. 32, §16, which is not “a general or special law for disability, including accidental disability.”

The provisions of G.L. c. 32, §91A requiring refund of so-called excess earnings and holdings one’s pension or retirement allowance as security therefore cannot be constitutionally applied to persons forced into involuntary retirement.

The particular circumstances of, Daniel Brophy’s forced retirement and subsequent employment in Florida preclude application of the refund/security provisions of §91A.

The provisions of G.L. c. 32, §91A contemplate an annual process and refund provisions of the law apply only to the immediately preceding year.  Even if §91A applies to those retired under §16 and can be applied in the particular circumstances of Daniel Brophy’s forced retirement, the Board may not now seek a refund for excess earnings reported prior to 2015.

The calculation of the base line in this case should be based on the definition of the phrase “regular compensation” in G.L. c. 32, §1 at the time Daniel Brophy was forced into involuntary retirement.