Boston Police Patrolmen's Ass'n, Inc. v. City of Boston

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; BRAUCHER
• Citation: 367 Mass. 368,326 N.E.2d 314
• Decision Date: 09 April 1975
• Parties: BOSTON POLICE PATROLMEN'S ASSOCIATION, INCORPORATED et al. 1 v. CITY OF BOSTON et al. 2

Page 314

326 N.E.2d 314 367 Mass. 368 BOSTON POLICE PATROLMEN'S ASSOCIATION, INCORPORATED et al.¹
v.
CITY OF BOSTON et al. ² Supreme Judicial Court of Massachusetts, Suffolk. Argued Feb. 4, 1975.
Decided April 9, 1975.

Page 316

[367 Mass. 369] Marilyn L. Sticklor, Corp. Counsel, Boston, for the City of Boston and another.

Henry Wise, Boston, for the Boston Police Patrolmen's Ass'n, Inc., and another.

Before [367 Mass. 368] TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

[367 Mass. 369] BRAUCHER, Justice.

In June, 1971, a Boston policeman became a candidate for the office of city councillor. On July 2, 1971, the police commissioner adopted a rule that a member of the police department, on becoming a candidate for elective office, must take a leave of absence without pay. The policeman and an association of which he is a member challenged the validity of the rule, and a judge of the Superior Court held that it was unenforceable because contrary to G.L. c. 31, § 46E. We hold that the rule is valid and enforceable.

This case was consolidated for hearing in the Superior Court with O'HARA V. COMMISSIONER OF PUB. SAFETY, --- MASS. ---, 326 N.E.2D 308^A and was heard on a statement of agreed facts amounting to a case stated, which we summarize. The plaintiff association is the collective bargaining representative of Boston patrolmen, and the individual [367 Mass. 370] plaintiff Corbett is a Boston patrolman. On June 16, 1971, Corbett subscribed his candidacy and applied for nomination papers as a candidate for the office of city councillor in the city of Boston. On June 29, 1971, he received nomination papers for that office for the preliminary election to be held September 14, 1971.

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On July 2, 1971, the commissioner issued General Order No. 351, amending the Rules and Regulations of the police department of the city of Boston by inserting Rule 34, § 4(f). ³ Before issuing the order, he knew that Corbett was running for the office of city councillor. On July 26, 1971, Corbett was certified by the election commission as a candidate for city councillor. By letter dated July 26, 1971, he was charged by the commissioner with violation of Rule 34, § 4(f). After a hearing on August 11, 1971, he was found guilty of a violation of the rule and was suspended without pay from August 16, 1971, until failure of nomination or withdrawal of candidacy. He survived the preliminary election, but failed of election at the final election held November 2, 1971, and was thereupon reinstated as patrolman. Meanwhile, he had lost salary, other economic benefits and status.

The plaintiffs sued for declaratory and injunctive relief. The judge found that Corbett was a member of a quasi military organization, subject to strict discipline, hazardous duty and call to action at all hours, with correlative powers of interrogation and arrest of citizens. The commissioner could reasonably infer that permitting him to remain on duty while campaigning for elective office [367 Mass. 371] could create a conflict of interest which could impede his efficient performance of his duty and could undermine and impair the integrity and discipline of the law enforcement agency. For example, he might be reluctant to interrogate fully, to arrest, or otherwise to enforce the law against a citizen who might have the power to affect substantially the outcome of the campaign. The judge cited for comparison G.L. c. 268A, § 25. He ruled that St.1906, c. 291, § 11, as appearing in St.1962, c. 322, § 1, ⁴ apparently gave the commissioner authority to promulgate the rule, but that the rule was unenforceable because contrary to the second paragraph of G.L. c. 31, § 46E, inserted by St.1965, c. 703, § 1. ⁵ A final decree was entered declaring that the rule was unenforceable against Corbett and that Corbett should be reinstated without loss of benefits. The defendants appealed, and the case was transferred from the Appeals Court to this court under G.L. c. 211A, § 10(A).

1. Application of the rule. Apart from the question whether the rule conflicts with the statute, discussed below, we agree with the judge that the authority granted to the commissioner is broad enough to cover the challenged rule as one 'needful . . . for the efficiency of said police.' St. 1906, c. 291, § 11, as appearing in St.1962, c. 322, § 1. Limitations on the political [367 Mass. 372] activities of policemen are not at all novel. Such a limitation gave rise to Mr. Justice Holmes's famous aphorism: 'The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.' McAuliffe v. Mayor & Aldermen of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). See Milton v. Civil Serv. Commn.,

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--- Mass. ---, --- - ---, ^b 312 N.E.2d 188 (1974). Cf. Murgia v. Commonwealth of Mass. Bd. of Retirement, 376 F.Supp. 753, 754 (D.Mass.1974), app. pending U.S. (1975). ^c

The rule could not literally be applied to Corbett 'upon becoming a candidate,' since he became a candidate before the rule was promulgated. The rule had no retroactive application, but it obviously contemplated a leave of absence 'continuing until . . . election . . . failure of nomination . . . or . . . withdrawal. . . .' There can be here no claim of unfair suddenness or surprise. The rule was promulgated on July 2, 1971; on July 16, 1971, Corbett refused to comply. On July 26, 1971, Corbett was certified as a candidate, and by letter dated July 26, 1971, he was charged with violation of the rule. After a hearing on August 11, 1971, the commissioner suspended him without pay, effective August 16, 1971. Thus no question is presented of suspension before notice and hearing. We think the application of the rule was proper.

2. Conflict with statute. The plaintiffs contend, and the judge ruled, that the rule is contrary to G.L. c. 31, § 46E, since the rule is more restrictive than the statute. The mere existence of statutory provision for some matters possibly within the purview of the rule does not render...