nation

Hundreds of Minnesota police officers and firefighters have used a loophole in state law to win lucrative disability pensions meant for those who get shot, fall through burning roofs or otherwise suffer career-ending injuries protecting the public.

Many had held down jobs in police and fire departments for years following their injuries, but were allowed to elect early retirement, sometimes going on to work similar jobs in the private sector, and still collect disability payments.

Officers and firefighters have cited everything from weak knees to bad backs to racquetball injuries in order to gain lifetime pensions and other costly benefits.

The trend is dramatically depleting a state pension fund and threatening to cost taxpayers millions.

Those collecting disability payments include a St. Paul City Council member, two fire department trainees who flunked out of the firefighters' academy, a state senator and his wife, and a former firefighter whose disability did not prevent his becoming a finalist to play the robust "Brawny Man" for a popular brand of paper towels.

Recently, a St. Paul officer under a felony indictment in connection with stolen property was awarded a disability pension he could collect even in prison.

St. Paul, by far, leads the way on expensive "in-the-line-of-duty" medical retirements. At least 54 St. Paul police and fire workers - some in high-ranking posts in their departments - have won lifetime disability pensions the past four years that come complete with free survivor benefits and subsidized health insurance until age 65.

The Public Employees Retirement Association (PERA), St. Paul city officials and the League of Minnesota Cities say that the pension rolls are becoming over-burdened by police and firefighters exploiting a generous and flawed new retirement option created by the Legislature in 1997.

The way the law is written, PERA says, the new breed of applicants needs only a doctor to say they have a job-related malady that prevents them from doing 100 percent of a front-line job as a baton-swinging street officer or ladder-climbing firefighter.

As a result, the rush of applicants for the new, top-of-the-line retirement benefits has commonly included desk bound police and fire administrators with chronic ailments who might have otherwise waited for normal retirement at age 55. It also includes applicants with injuries suffered from such activities as working out at the gym, under the justification that part of the duty of police officers and firefighters is to stay fit.

"I believe the intent of the law is being violated, terribly," said Ron Guilfoile, director of St. Paul's risk management office.

Jeffrey Kane, 33, joined the St. Paul Police Department in 1999. He was indicted late last year on federal charges that he transported and concealed a stolen Bobcat loader. He has pleaded not guilty.

But when Kane left the police force on Feb. 9, it wasn't because federal prosecutors were trying to put him behind bars. Instead, Kane left with an in-the-line-of-duty disability pension that promises to pay him at least 60 percent of his officer's salary and city-subsidized health care until he is 65. Police Department spokesman Paul Schnell wouldn't comment on the case, but he said the disability pension was related to injuries that Kane suffered several years ago in a squad car accident. Neither Kane nor his lawyer could be reached for comment.

Schnell said Kane returned to work after his crash in a lighter-duty role as a graffiti investigator. After his indictment, Kane was assigned to the police impound lot pending an internal investigation.

A PERA spokeswoman said approving Kane's disability pension was an open-and-shut case. Even if Kane spends time in a federal prison camp, his monthly pension checks will keep coming, she said.

Statewide, the numbers of disability claims have skyrocketed in a few years under the new law. In 1998, the first full year of availability for the enhanced, duty-related pensions, PERA's police and fire plan paid out $5.9 million to 314 disability benefit recipients. In the fiscal year ending June 30, 2003, it paid out more than four times as much to 614 recipients.

Officials have no clear explanation for why St. Paul has experienced a spike of more than 50 in-the-line-of-duty disability retirements in police and fire ranks since the law changed. In the same time period, only a handful of Minneapolis police and firefighters have taken the so-called "medical outs." Some believe word of the new disability provisions has spread unusually widely among St. Paul officers. Others contend an aging workforce nearing retirement age finds the benefits especially attractive.

St. Paul Mayor Randy Kelly and his deputy mayor, Dennis Flaherty, spearheaded the 1998 law change when Kelly was a state senator and Flaherty was chief lobbyist for the statewide police federation.

As the two men now question what went wrong, PERA is contemplating an across-the-board hike in the cash contributions from covered cities and individuals that fund pensions. In St. Paul, for instance, the city's cost to support police and fire pensions could jump 35 percent, from about $6 million a year to $8.1 million, Guilfoile said. Meanwhile, the duty-related medical retirements also have increased the city's annual health insurance obligations.

Mary Vanek, executive director of PERA, the agency that grants pensions from the $4.7 billion Police and Fire Pension Fund, said the high number of St. Paul cases is "unbelievable" compared to other municipalities.

Retired St. Paul police officer Thomas Collins, once the department's designated security guard and driver for former Mayor Norm Coleman, now works under contract for the U.S. Marshals Service as a guard at the federal courthouse in St. Paul. Collins took a duty-related disability pension at age 46 and looked for a second job "because it wasn't a fat enough pension to sit home and do nothin'."

Collins, who receives a monthly disability payment of $3,851, readily admits that he could have looked for a desk job in the police department following his mayoral assignment, but instead he exercised his legal rights to a duty-related disability because he had physical restrictions from a back injury suffered in a June 1995 road accident in the mayor's Crown Victoria .

Collins said he had a "very tenuous relationship" with Police Chief Bill Finney and didn't want to risk getting an undesirable new assignment. If it hadn't been for the availability of a duty-related medical pension that would also pay a portion of his health insurance, Collins said, he would have had to continue working in the department.

"I was 46 years old," Collins said. "I wouldn't have been able to leave otherwise."

System's generosity

No one has come forward with an example that breaks the law, but other cases further illustrate the system's generosity.

• Former St. Paul firefighter Doug Friberg was approved for a duty-related medical pension in May 2002 and left the department with a $39,000-a-year pension and subsidized health care benefits. He resurfaced later that year as a contest finalist in a national promotion for "rugged, tough, dependable and strong" Brawny paper towels. In vouching for him as a worthy candidate to be Georgia-Pacific's new "Brawny Man," Friberg's neighbors in Oakdale raved about his volunteering to shovel their snow.

The 46-year-old Friberg, a former football nose guard for the University of Minnesota, said his involvement in the Brawny "publicity stunt" was all about physical appearance, not physical ability. He said he injured his back in 1993, lifting a stretcher in a narrow stairway. Because the injury was never properly treated, he said, it lingered until he could no longer perform all the duties of a firefighter and medic. The snow-shoveling testimonials were from days long ago when he was healthy, said Friberg, who said he now works in a job that doesn't require heavy lifting.

-• Although neither Julie Tossey nor Kathleen O'Connor worked a single day in a St. Paul fire station, both have been collecting in-the-line-of-duty disability pensions since 2001. Their attorneys, Dan Boivin and Sandra Kensy, said the pensions are for injuries that Tossey and O'Connor suffered during six weeks of recruit training in the city's firefighter academy. The two were notified midway through the academy that they were unqualified, but they were technically employed as firefighters during the training period.

Boivin and Kensey said PERA contested Tossey's case, in which she reinjured her back during a firefighter training exercise. The original injury was from an off-the-job horseback-riding accident, but Tossey had recovered enough to pass the physical exam to qualify as a firefighter recruit, the lawyers said.

After Tossey prevailed, the lawyers said, PERA didn't contest O'Connor's claim that she suffered mental anguish and depression as a result of emotional abuse at the academy. According to state pension records, Tossey receives a monthly pension of $2,738, while O'Connor receives $1,626. Tossey and O'Connor are still pursuing a lawsuit against St. Paul for age and sex discrimination, claiming the training academy was rigged against them.

• State Sen. Mike McGinn and his wife, Lisa, were both with the St. Paul Police Department until they retired under disabilities. Together, they receive $135,000 a year in disability checks.

Besides the disability payments and his Senate salary, Mike McGinn, who had a heart attack in 1991 and retired in 2000 with a nonduty related disability, also works part time as a law enforcement consultant. McGinn said the stresses are more manageable in his political career than they were in police work.

"In politics, there are winners and losers, but no one is losing their life," he said.

Lisa McGinn retired last year at 50 with an in-the-line-of duty disability from injuries she received in several auto accidents. She has not found full-time employment. She said the injuries from the duty-related car crashes resulted in chronic pain that limited her ability to do police work. As a watch commander in her final year on the force, she said she was unable to qualify at the firing range because the recoil from a shotgun might injure her neck.

"There's no place I would rather be than still be working at the St. Paul Police Department," she said.

Trend spreads

While the trend started in St. Paul, it is spreading throughout the state.

"Others have figured it out. The word is out," PERA's Vanek said. "You can't ignore the actuaries. Contributions to the fund need to be increased or benefits decreased."

The potential for an increase in contributions to the pension fund has caught the eye of current police and fire members, whose own individual contributions to the retirement plan could go up $250 to $400 a year or more to make up for the reimbursements to the disabled retirees.

Bill Gillespie, executive director of the Minnesota Police and Peace Officers Association, said many of those filing for in-the-line-of duty disabilities are using injuries that are not the kind for which the new benefit was intended. Active members, he says, are registering complaints.

"Their objection is primarily one of a sense of justice, what's right and fair," he said.

PERA officials say they are hamstrung by the law and they are pushing a bill at the Legislature that would restrict the availability of duty-related medical pensions. Other benefit plans for non-police and fire personnel often require a "total and permanent" disability that means the inability to perform any gainful activity for the same level of benefits.

Former St. Paul police commander Debbie Montgomery was elected to the St. Paul City Council last fall. She retired from the police department in 2003 with a $63,000 a year in-the-line-of-duty medical pension that the city contested. According to state workers' compensation records, Montgomery's doctor said she developed injuries to both of her knees from years of getting in and out of squad cars, kneeling at the firing range and falling down on her kneecaps while a street officer.

Montgomery's injuries didn't prevent her from working her administrative job as a commander, but she said she deserved an in-the-line-of-duty disability pension because she could no longer do everything a uniformed officer might be called upon to do.

"Your job title says that you have to be able to perform all the duties of a police officer," she said. "It doesn't say "commander." It says "police officer.' "

As long as they do not go back to working as licensed police officers or firefighters, those with in-the-line-of-duty disabilities are free to find other work, even in security-related fields.

Former St. Paul police officer David Mars is co-owner of Twin City Lawmen, Inc., an Oakdale private security firm. His back was injured in a squad car accident in the late 1970s, he said. He missed months of work, but returned as a patrolman in the rough Frogtown area for many years, even though he was still troubled by a degenerating disc problem.

Mars said he was "fed up with the administration" of the police force at age 50 and also worried more about his back. But instead of taking normal early retirement, he received a richer, duty-related medical retirement that pays him a higher monthly pension and a subsidy on his health insurance.

"I'd be stupid if I didn't take it," said Mars, who adds that his role at Twin City Lawmen is primarily administrative.

Change in state law

Mayor Kelly and Deputy Mayor Flaherty pushed hard for the change in state law that opened up the flood of disability claims. They said at the time and continue to maintain that the intent of the legislation was to protect officers and firefighters facing increasing dangers.

Initially, the state was to reimburse cities for the additional costs, but those funds have been severely restricted under budget cuts.

Flaherty said it was never his intention for the new benefit to be used in this way. He testified before a House committee in 1997: "I don't want you to think that we're talking about a large number of people. Fortunately, it's a very finite group."

Others remember Flaherty's role differently. Dave Johnson was a state senator at the time of the law change. He is now the attorney for the union that represents St. Paul firefighters.

Johnson said that Flaherty could have acted in 1997 to narrow the availability of the new benefit he was proposing as a police lobbyist by using a "hot pursuit" standard instead of the broader "in the line of duty" language.

There is plenty of blame to go around. The police association's Gillespie and other police groups blame PERA for failing to enforce the law. So does St. Paul's Flaherty. PERA points to the courts, which have upheld the broad interpretation of the law.

PERA has no investigators in the field to determine if someone claiming a disability is still unable to work. It relies instead on reports sent in by the claimants themselves. Now it wants greater accountability from those making claims.

The Minnesota Department of Health has a retired doctor working a few days a week with part-time help to review disability claims. Of the 368 disability determinations the Department of Health has conducted with benefit effective dates after 1999, it has denied only one application.

Mark Brunswick is at mbrunswick@startribune.com and Tony Kennedy is at tonyk@startribune.com.