Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Cheating and Loyalty Do Not Mix – SBG Daily Blog 1

Investigated fire chief drops disability claim

Friday’s Today’s Boston Globe reports that a Boston fire chief who has been on injured leave for nearly two years awaiting approval of his disability retirement claim suddenly withdrew his application this week after two witnesses recanted their initial statements about his injury and the recent disappearance of the his medical file from department headquarters. Federal investigators were pursuing an inquiry into dozens of questionable injury claims, including his.

James J. Famolare was the Boston Fire Department’s district chief of administration when he reported injuring his back while moving a box at fire headquarters in June 2006, records show. Famolare filed an application for disability retirement four months later, and the two witnesses signed it, according to officials. However, when fire officials reviewing Famolare’s case in recent weeks asked the witnesses what they saw, they said they did not see anything but merely placed their signatures on a narrative the chief had written and asked them to endorse, said the officials, who were briefed on the case and spoke on condition of anonymity. The firefighters both said they could no longer vouch for Famolare and signed new written statements saying they did not witness the injury, the public officials briefed on the case said. A Fire Department employee who spoke with one of the witnesses this week said the firefighter signed the application because Famolare asked him to. “He said, ‘You’re not going to say no when a chief asks you to do something,’ ” said the employee, who spoke on condition of anonymity for fear of retribution from superiors. “He had to recant, he had to change it, because he didn’t physically see it.”

Fire officials were preparing to ask the Boston Retirement Board to deny the chief’s disability pension application at a hearing scheduled for Wednesday when Famolare notified the board that he no longer wanted a disability retirement and applied for a regular pension instead, the officials said. In his letter to the Boston Retirement Board, Famolare said he was withdrawing his disability claim because he did not believe he could get a fair hearing.

From the time of the reported injury until he withdrew his application, Famolare collected roughly $300,000 in tax-free injured-leave pay, records show. It was unclear whether the city will try to recoup the injury pay collected by Famolare or whether he or the witnesses will face further department investigation. The US attorney’s office launched the probe of questionable injury claims after a Globe report in January found that 74 percent of Boston firefighter retirements between 2005 and 2007 were due to accidental disability, more than twice the rate of similarly sized cities. Federal authorities launched a parallel investigation last month after the medical files of three firefighters who had applied for disability pensions, including Famolare, disappeared from Fire Department headquarters.

Sam’s take:
Well, one can put whatever spin one wants to on a story. The fact is that both Famolare and the two unnamed firefighters could be facing criminal charges. Often, a witness will change his testimony when having to choose between maintaining fidelity (plus a criminal prosecution) and suddenly “seeing the light” and aiding the prosecutors ( thus avoiding either heavy penalties or the criminal prosecution itself).

Certain financial mechanisms have been put in place in order to assist or “make whole” someone in their time of need. However, the intentional providing of false information in that process in order to profit, or to help someone else to do so, is a crime. The information provided on the disability forms in this story involve such a claim. It is a crime if Famalore knowingly provided false information and if the two unnamed firefighters knowingly signed the document knowing the information was false (which they seem to be saying they did) they could be charged with conspiracy, thereby making them criminally liable for Famalore’s actions as well. Needless to say, “loyalty to the chief” is not a legal defense.

This is a case where the allegations are pretty clear. However, someone making such a claim that they actually believe to be true, or signing such a form, could lead someone into the same danger should the government believe it to be untrue. Such misunderstandings or mistakes often lead to the threat of criminal prosecution. This is why it is absolutely critical for a person to engage an attorney at the first sign of an investigation. In many cases, it could mean the difference between simply clearing up the issue quietly or facing the nightmare of criminal prosecution.

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, P.C. A former prosecutor in New York, he has worked as a defense attorney in Boston over 18 years. He frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network

The full article of this story can be found on Boston.com at
http://www.boston.com/news/local/articles/2008/08/15/investigated_fire_chief_drops_disability_claim/?page=full

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