Essex Reg'l Ret. Bd. v. Swallow
| Decision Date | 18 January 2019 |
| Docket Number | SJC-12511,SJC-12458 |
| Citation | 114 N.E.3d 581,481 Mass. 241 |
| Parties | ESSEX REGIONAL RETIREMENT BOARD v. John SWALLOW & Others. State Board of Retirement v. Brian O'Hare & Others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas C. Fallon for John Swallow.
Eric B. Tennen, Boston, for Brian O'Hare.
Michael Sacco for Essex Regional Retirement Board.
David R. Marks, Assistant Attorney General, for State Board of Retirement.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
These two cases present closely related questions concerning the scope of G. L. c. 32, § 15 (4) ( § 15 [4] ), which provides that no member of a public employee retirement system shall be entitled to a retirement allowance after conviction of a criminal offense involving a violation of the laws applicable to his or her office or position.3
John Swallow was a police sergeant for the town of Manchester-by-the-Sea on administrative leave when he was charged with several crimes related to the discharge of his personal firearm, charges to which he admitted to sufficient facts to convict. Brian O'Hare was a police sergeant for the State police when he was charged with the Federal crime of using the Internet to entice a person under eighteen years of age to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty.
In these cases, there are neither factual connections between the criminal activity and the officers' respective positions nor apparent violations of any laws expressly applicable to their positions. Notwithstanding, the Essex Regional Retirement Board (Essex board) and the State Board of Retirement (State board) each concluded that the officers' respective convictions violated the fundamental tenets of their positions as trusted law enforcement officials and denied the officers a retirement allowance under § 15 (4) as a result.
We conclude that, while the officers' conduct was entirely reprehensible, in view of the narrow interpretation that we have given to § 15 (4), requiring the forfeiture of their pension allowances was in error. Consequently, we affirm the decisions of the Superior Court judges allowing the officers' respective motions for judgment on the pleadings and vacating the boards' decisions otherwise.
Background. The facts are undisputed in both cases.
1. Swallow. Swallow was a police sergeant for the town of Manchester-by-the-Sea from March 1, 1989, until his termination on January 4, 2013. Following a string of personal tragedies in 2011 and 2012, Swallow began drinking heavily and struggled with significant depression. In June 2012, Swallow was placed on administrative leave pending investigation of an abuse allegation unrelated to this matter. He was required to return his badge and service weapon at that time but retained his license to carry a firearm.
The incident that gave rise to Swallow's convictions took place in October 2012. Swallow and his wife, Lauren Noonan, were at their home; Swallow was drinking heavily and acting erratically. The couple argued, initially because Noonan was concerned that Swallow might drive his car while under the influence of alcohol, and the argument escalated. At one point, Noonan stated that she wanted Swallow to leave the home. Swallow refused, and Noonan indicated that if he did not leave she would testify against him regarding the abuse allegation. Swallow grabbed Noonan by the shirt, yelled at her, and waved a handgun in her face. Noonan left the home and began to walk to a neighbor's home. While in the neighbor's driveway, she heard a single gunshot.
Swallow, apparently contemplating suicide, had fired what he called a "brave shot," i.e., a shot meant to determine whether he had the courage to commit suicide. The bullet grazed his hand. Swallow was arrested by the Beverly police that evening and ultimately pleaded guilty to (1) assault and battery, (2) discharge of a firearm within 500 feet of a building, (3) assault by means of a dangerous weapon, (4) multiple counts of improper storage of a firearm,4 and (5) intimidation of a witness.
Swallow committed his crimes while on administrative leave and with a personal firearm. He did not use his position as an officer or police resources to facilitate his crime. Nonetheless, the Essex board determined that Swallow's convictions required forfeiture of his pension under § 15 (4) because his offenses "strike at the heart of the duties of a police officer and simply cannot be separated from his position as a law enforcement officer," and his actions "were a violation of the public's trust as well as a repudiation of his official duties."
Swallow sought review in the District Court, arguing that forfeiture was unjustified where there was no reference to public employment in the criminal statute under which he was convicted, no direct factual link between his conduct and his position as a police officer, and no violation of any identifiable law applicable to that position. Swallow also argued that forfeiture violated the excessive fines clause of the Eighth Amendment to the United States Constitution. On cross motions for judgment on the pleadings, a judge in the District Court vacated the Essex board's decision, concluding that Swallow's conduct and subsequent convictions were not connected sufficiently to his position to warrant forfeiture. That decision was subsequently affirmed by a judge of the Superior Court. Thereafter, the Appeals Court concluded that Swallow's use of a gun to threaten another's life violated the public's trust and was a repudiation of his official duties. Essex Regional Retirement Bd. v. Justices of the Salem Div. of the Dist. Court Dep't of the Trial Court, 91 Mass. App. Ct. 755, 760, 79 N.E.3d 1090 (2017). Accordingly, the court reversed and remanded the matter to the District Court for consideration of the Eighth Amendment issue. Id. at 761, 79 N.E.3d 1090.
2. O'Hare. O'Hare served as a trooper for the State police from 1986 until his resignation in October 2006. For several months in 2005 and 2006, O'Hare communicated online with, and eventually arranged to meet with, an individual whom he believed to be a fourteen year old boy but was actually an undercover agent with the Federal Bureau of Investigation (FBI). The FBI arrested O'Hare in February 2006. O'Hare subsequently resigned from his position and pleaded guilty to a charge of using the Internet to attempt to coerce and entice a child under the age of eighteen years to engage in unlawful sexual activity.
O'Hare did not use his position or State police resources to facilitate his crime; he used his personal computer and did not communicate with the undercover agent while on duty. The foregoing notwithstanding, the State board determined that Swallow's conviction required forfeiture of his pension under § 15 (4) because it constituted a violation of the core tenets of his position and went "directly to the heart" of his responsibilities and obligations as a State police trooper.
O'Hare sought review in the District Court, arguing that forfeiture was not warranted where his conviction was not related to his position as a State police trooper. The State board argued that his misconduct, although private, went to the heart of his obligation to enforce the criminal laws and, as a result, forfeiture was required. On cross motions for judgment on the pleadings, a judge in the District Court vacated the State board's decision, concluding that O'Hare's criminal conduct did not warrant forfeiture because it was wholly independent of his job as a State police trooper. That decision was subsequently affirmed by a judge in the Superior Court. Thereafter, the Appeals Court reversed, concluding that forfeiture was required because O'Hare's conduct violated the fundamental tenets of his role as a State police trooper, where the protection of the vulnerable, including children, is at the heart of a police officer's role, and this repudiation of his official duties violated the public's trust and the integrity of the State police. State Bd. of Retirement v. O'Hare, 92 Mass. App. Ct. 555, 559, 91 N.E.3d 677 (2017).
Discussion. 1. Standard of review. General Laws c. 249, § 4, "provides for limited judicial review in the nature of certiorari to correct errors of law in administrative proceedings where judicial review is otherwise unavailable." State Bd. of Retirement v. Bulger, 446 Mass. 169, 173, 843 N.E.2d 603 (2006). We may correct "only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff" and "rectify only those errors of law which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public" (citation omitted). Garney v. Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 388, 14 N.E.3d 922 (2014).
2. Pension forfeiture pursuant to G. L. c. 32, § 15. a. Origins of § 15 (4). General Laws c. 32, § 15, contains four subsections that generally govern the consequences that result from the commission of certain criminal offenses to retirement rights of public employees. Subsection (1) applies to those situations in which a member of the retirement system "has been charged with the misappropriation of funds or property of any governmental unit" in which he or she was employed. Three other subsections establish the consequences of convictions of certain criminal offenses.
Subsections (3) and (3A) are both entitled "Forfeiture of rights upon conviction." Subsection (3) denies a retirement allowance after final conviction of such member "of an offense involving the funds or property of a governmental unit or system referred to in subdivision (1) of this section," and does not permit the return of retirement contributions "unless and until full restitution for any such misappropriation has been made." Subsection (3A) applies only in circumstances where a member has been convicted of...
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