Essex Regional Retirement Board v. Swallow State Board of Retirement v. O'Hare , 481 Mass. 241 ( 2019 )

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SJC-12458
SJC-12511
ESSEX REGIONAL RETIREMENT BOARD vs. JOHN SWALLOW & others.1
STATE BOARD OF RETIREMENT vs. BRIAN O'HARE & others.2
Essex. Suffolk. October 1, 2018. - January 18, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
Retirement. Pension. Public Employment, Retirement, Forfeiture
of pension, Police. Police, Retirement, Regulations.
State Police.
Civil action commenced in the Superior Court Department on
July 14, 2015.
The case was heard by James F. Lang, J., on motions for
judgment on the pleadings.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Civil action commenced in the Superior Court Department on
January 29, 2015.
The case was heard by Peter M. Lauriat, J., on motions for
judgment on the pleadings.
1 Justices of the Salem Division of the District Court
Department of the Trial Court.
2 Justices of the Cambridge Division of the District Court
Department of the Trial Court.
2
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Thomas C. Fallon for John Swallow.
Eric B. Tennen for Brian O'Hare.
Michael Sacco for Essex Regional Retirement Board.
David R. Marks, Assistant Attorney General, for State Board
of Retirement.
CYPHER, J. 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.
3 These cases were paired for oral argument and combined for
purposes of this opinion because they raise essentially
identical questions of law. Our analysis and decision apply
equally to both.
3
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
4
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)
5
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 app1icable to that position. Swallow also
argued that forfeiture violated the excessive fines clause of
the Eighth Amendment to the United States Constitution. On
4 A search of the house revealed a considerable collection
of firearms and ammunition in the home, including hundreds of
weapons that Swallow was storing for a friend who was on a
military deployment. The police determined that three of the
firearms observed in the house were not properly secured.
6
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 (2017). Accordingly, the court reversed and remanded the
matter to the District Court for consideration of the Eighth
Amendment issue. Id. at 761.
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.
7
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
8
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 (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 (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 (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
9
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 certain specified offenses, i.e., those set
forth in either G. L. c. 268A, § 2 ("Corrupt gifts, offers or
promises to influence official acts; corruption of witnesses"),
or G. L. c. 265, § 25 ("Attempted extortion; punishment").
Subsection (4), inserted by St. 1987, c. 697, § 47, and
entitled "Forfeiture of pension upon misconduct," provides that
"in no event" shall any member of the State retirement system be
entitled to a retirement allowance "after final conviction of a
criminal offense involving violation of the laws applicable to
his office or position."5 This subsection was enacted in
reaction to this court's decision in Collatos v. Boston
Retirement Bd., 396 Mass. 684 (1986). See Gaffney v.
5 Retirement contributions are returned to the member.
G. L. c. 32, § 15 (4) (§ 15 [4]).
10
Contributory Retirement Appeal Bd., 423 Mass. 1, 3 (1996). In
Collatos, we determined that the Legislature intended subsection
(3A) to result in forfeiture only if the employee was convicted
of two specific State crimes. Collatos, supra at 687. As a
result, a Federal conviction under the Hobbs Act, although
arguably equivalent to a State offense enumerated in the
statute, did not compel forfeiture. Id. at 687-688. Shortly
after that decision, the Legislature inserted § 15 (4)
"providing for an intermediate level of pension forfeiture in a
broader array of circumstances." Gaffney, supra.
b. Application of § 15 (4). Our first substantive
decision considering the applicability of § 15 (4) was Gaffney,
423 Mass. 1. In that case, the superintendent of the Shrewsbury
water and sewer department pleaded guilty to stealing money and
property from the town over the course of several years. Id. at
2. We reiterated our position in Collatos that pension
forfeiture provisions are penal in character and must be
construed narrowly. Gaffney, supra at 3. We considered this in
tandem with the Legislature's apparent intention to expand the
circumstances leading to pension forfeiture. Id. at 3-4 ("In
using a broad phrase to describe the condition precedent to
forfeiture, the intent clearly is to avoid having the precise
form of the criminal enforcement action make a difference with
respect to the pension forfeiture issue. Further evidence of
11
this stems from the title of § 15 [4] -- 'Forfeiture of pension
upon misconduct'"). In that case we rejected an approach that
would have § 15 (4) operate "only in cases of violations of
highly specialized crimes addressing official actions, while not
providing the same when officials engage in criminal activities
in the course of their duties." Id. at 4. We reasoned that the
Legislature did not intend for forfeiture to necessarily follow
"any and all criminal convictions" and that the "substantive
touchstone" is "criminal activity connected with the office or
position" (emphasis added). Id. at 4-5 (emphasizing that
§ 15 [4] targets "[o]nly those violations related to the
member's official capacity"). In sum, we concluded that
"[l]ooking to the facts of each case for a direct link between
the criminal offense and the member's office or position best
effectuates the legislative intent of § 15 (4)." Id. at 5.
Massachusetts appellate decisions over the next decade
reflect consistent application of § 15 (4) where members had
engaged in criminal activities in the course of their duties,
often resulting in at least one violation of a statute expressly
applicable to public employees or officials. See, e.g., MacLean
v. State Bd. of Retirement, 432 Mass. 339, 340 (2000) (member of
Legislature convicted of violating State conflict of interest
law); Robinson v. Contributory Retirement Appeal Bd., 62 Mass.
App. Ct. 935, 936 (2005) (police officer convicted of, inter
12
alia, conspiring with his partner to embezzle, steal, or obtain
by fraud or otherwise significant sums of money that were under
care and custody of their department); Fidelity & Deposit Co. of
Md. v. Sproules, 60 Mass. App. Ct. 93, 94 (2003) (police chief
convicted of larceny of controlled substance; attempting to
procure perjury; intimidation of witness; and fraud or
embezzlement by city, town, or county officer).
The opinion of Bulger, 446 Mass. at 179, which appears to
rest on a broader interpretation of the statute, presented a
novel set of facts. In that case, a clerk-magistrate was
convicted of perjury and obstruction of justice in the context
of an arguably personal matter. The convictions were
unconnected factually to his position, and neither conviction
expressly applied to public officials or employees. However,
this court reasoned that "laws" applicable to clerk-magistrates
included the Code of Professional Responsibility for Clerks of
the Courts (code), S.J.C. Rule 3:12, as amended, 427 Mass. 1322(1998). Bulger, supra at 177-178. Because the clerk-
magistrate's perjury and obstruction of justice convictions
clearly violated the code, a law applicable to his position,
they resulted in forfeiture of his pension. Id. at 179.
Notably, we recognized that not every code violation would
compel forfeiture: "the language of the code enunciating the
high standards to which clerks are held is broad, whereas the
13
language of . . . § 15 (4) . . . is narrower, no doubt due to
the severity of pension forfeiture as a sanction for dereliction
of duty by a member."6 Id. at 178. "Depending on the misconduct
at issue, there may be instances when removal of a clerk-
magistrate from office is mandated by G. L. c. 211, § 4, because
it serves the public good, but pension benefits are not
concomitantly terminated because the misconduct at issue does
not fall within the purview of G. L. c. 32, § 15. For example,
a member may be convicted of a criminal offense that does not
involve any violation of the laws applicable to his office or
position." Id. at 179. We emphasized that in that case the
clerk-magistrate's commission of perjury and obstruction of
justice "violated the fundamental tenets of the code." Id.
Therefore, forfeiture was required. See Retirement Bd. of
Somerville v. Buonomo, 467 Mass. 662, 671 (2014) (forfeiture
required where register of probate's convictions violated code
6 We also rejected the argument that we should consider
whether the clerk-magistrate's convictions, had they occurred
while he was still employed as a clerk-magistrate, would have
resulted in removal: "such an analysis is too broad, and it
fails to recognize that the standards for a member's removal
from office and for a member's forfeiture of a retirement
allowance are different." State Bd. of Retirement v. Bulger,
446 Mass. 169, 178 (2006). "[The] parameters for entering or
remaining in the profession are not the same as the standard for
forfeiting a pension to which an employee has contributed and
that he or she earned over the course of many years of public
service." Garney v. Massachusetts Teachers' Retirement Sys.,
469 Mass. 384, 391 (2014).
14
as well as at least one law plainly applicable to public
officers).
After Bulger, Massachusetts appellate courts continued to
uphold pension forfeitures in a narrow set of circumstances:
those where a member had either (1) engaged in criminal activity
factually connected to his or her position or (2) violated a law
expressly applicable to public employees or officials. See
State Bd. of Retirement v. Finneran, 476 Mass. 714, 722-723
(2017) (forfeiture required where Speaker of House's conviction
of felony obstruction of justice resulted from false testimony
he provided concerning his participation as Speaker in
redistricting planning process); Buonomo, 467 Mass. at 672
(forfeiture required where register of probate convicted on
multiple counts of breaking into depository [workplace cash
vending machine]; larceny; and embezzlement by public officer);
Dell'Isola v. State Bd. of Retirement, 92 Mass. App. Ct. 547,
553-554 (2017) (forfeiture required where correction officer's
conviction of possession of cocaine resulted from officer's on-
duty communications with inmate in custody); Durkin v. Boston
Retirement Bd., 83 Mass. App. Ct. 116, 119 (2013) (forfeiture
required where police officer used department-issued firearm to
shoot fellow officer while intoxicated and off duty); Maher v.
Justices of the Quincy Div. of the Dist. Court Dep't, 67 Mass.
App. Ct. 612, 616-617, 621 (2006) (forfeiture required where
15
chief plumbing and gas inspector broke into city's personnel
office, destroyed city property, and stole documents from his
own personnel file with aim of removing documents criticizing
his performance as chief inspector to improve his chances of
reappointment).
By contrast, our appellate courts declined to uphold
forfeitures where there were neither factual connections nor
violations of laws expressly applicable to public employees or
officials.7 See Garney, 469 Mass. at 387 n.7, 394-395
(forfeiture not required as result of teacher's convictions of
purchase and possession of child pornography where teacher
committed his crimes outside of school, without using school
resources or otherwise using his position to facilitate his
crimes, and without involving students in his illicit
activities); Retirement Bd. of Maynard v. Tyler, 83 Mass. App.
Ct. 109, 109, 112-113 (2013) (firefighter's sexual abuse
convictions did not support forfeiture where acts occurred off
7 We also have declined to require forfeiture pursuant to
§ 15 (4) where total forfeiture would violate the excessive
fines clause of the Eighth Amendment. See Public Employee
Retirement Admin. Comm'n v. Bettencourt, 474 Mass. 60, 78–79
(2016) (§ 15 [4] could not be enforced against police officer
who violated laws applicable to his position by illegally
accessing personnel files of fellow officers while on duty in
his official capacity as watch commander, on department
premises, and while using department computer, because complete
forfeiture of retirement benefits was not proportional to
gravity of underlying offenses of which he was convicted).
16
duty outside fire house and firefighter did not use "his
position, uniform, or equipment for the purposes of his indecent
acts"); Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct.
538, 543 (2011) (forfeiture not required as consequence of
library employee's convictions of possession of child
pornography where there was no evidence that employee used his
position or library resources to facilitate crime); Herrick v.
Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 653-655
(2010) (forfeiture not required where housing authority
custodian committed indecent assault and battery on daughter
because offense was not committed on housing authority property
or against any residents there, and offense did not bear other
connection to custodian's position).
In short, our precedent requires a "direct link" between
the criminal offense and the member's office or position, either
"factual" or "legal." Finneran, 476 Mass. at 720. In cases
involving factual links, a public employee's pension is subject
to forfeiture only "where there is a direct factual connection
between the public employee's crime and position." Id. at 720-
721, and cases cited. In cases involving legal links, a public
employee's pension is subject to forfeiture only "when a public
employee commits a crime directly implicating a statute that is
specifically applicable to the employee's position." Id. at
721, citing Buonomo, 467 Mass. at 664-666, and Bulger, 446 Mass.
17at 177-180. The requisite legal link is shown "where the crime
committed is 'contrary to a central function of the position as
articulated in applicable laws.'" Finneran, supra, quoting
Garney, 469 Mass. at 391.
3. Analysis. Neither Swallow's nor O'Hare's conduct was
factually connected to his position as a police officer. In
addition, none of their convictions expressly applied to public
officials or employees. The question then is whether the
convictions nevertheless constituted violations of "the laws
applicable" to their positions. G. L. c. 32, § 15 (4).
The boards argue that the officers' convictions violated
the fundamental tenets of their positions such that there are
sufficient legal links to merit forfeiture. In reaching this
conclusion, they emphasize that police officers voluntarily
undertake to adhere to a higher standard of conduct than do
ordinary citizens, that as law enforcement officials they hold a
position of special public trust, and that each officer's
conduct blatantly violated that trust. Specifically, the Essex
board argues that this case is analogous to Durkin in that
Swallow's convictions are inconsistent with his position's
obligations and the requirement that he "behave in a manner that
brings honor and respect for rather than public distrust of law
enforcement." In a similar vein, the State board argues that
O'Hare's convictions undermined the central role of a State
18
police trooper as articulated in the rules and regulations of
the State police and undercut public confidence in the integrity
of the State police.
a. Violation of special public trust. The Essex board
argues that under Durkin forfeiture is required where a police
officer's violation of the law demonstrates a "violation of the
public's trust" and a "repudiation of his official duties."
Durkin, 83 Mass. App. Ct. at 119. Indeed, both boards posit
that the special position of trust police officers occupy in our
society must factor into the determination whether an officer
has violated a law applicable to his or her position. The State
board goes so far as to suggest that the commission of any crime
is contrary to the central functions of a law enforcement
official's position as a result of their "special position" in
our society and thus might result in forfeiture. We disagree.
First, the Essex board's reliance on Durkin for the
proposition that where a police officer violates the public
trust and shirks his or her official duties forfeiture is
mandatory is misplaced. In that case, forfeiture was required
where a police officer was convicted of assault and battery by
means of a dangerous weapon for shooting another officer with
his department-issued firearm. Id. at 117. Although the court
discussed the fundamental nature of the police officer's
position and noted that the officer had violated the public
19
trust by "engag[ing] in the very type of criminal behavior he
was required by law to prevent," forfeiture was ultimately
grounded on the factual connections between the officer's
position and the criminal activity. Id. at 118-119. Cf. Tyler,
83 Mass. App. Ct. at 112-113 (forfeiture not required where
firefighter's offenses lacked any factual connection to his
position). In short, Durkin is not a "legal link" case. Accord
Finneran, 476 Mass. at 720.
Second, we are not persuaded by the State board's argument
that law enforcement officials are an exception to the
proposition that pension forfeiture should not follow "as a
consequence of any and all criminal convictions" because of
their "special position" in our society. See Gaffney, 423 Mass.
at 5. Indeed, the State board posits that "given the nature of
the positions that troopers hold, the commission of any crime is
contrary to the central functions of their positions to enforce
the law and protect the public." This is precisely the kind of
unfettered breadth that we have consistently avoided. See id.
("Yet it is also apparent that the General Court did not intend
pension forfeiture to follow as a sequelae of any and all
criminal convictions"); Durkin, 83 Mass. App. Ct. at 119 n.5
("Notwithstanding the high standards placed on firefighters and
police officers, not every off-duty illegal act qualifies as a
violation of the laws applicable to his office or position"
20
[quotation and citation omitted]); Tyler, 83 Mass. App. Ct. at
112 (§ 15 [4] as currently written is "not so broad" as to
"engulf nearly every public official, especially police officers
and firefighters, convicted of any crime"). Regardless of the
high standards placed on police officers, "not every off-duty
illegal act qualifies as a violation of the laws applicable to
his office or position" (quotation and citation omitted).
Durkin, supra. Accord Tyler, supra. Indeed, § 15 (4) "requires
something more specific than a violation of a special public
trust in the particular public position." Garney, 469 Mass. at
393 (criminal conduct insufficient to justify forfeiture where
it is "merely inconsistent with a concept of special public
trust placed in the position or defiant of a general
professional norm applicable to the position, but not violative
of a fundamental precept of the position embodied in a law
applicable to it"). Were we to adopt the State board's
position, we would "expand the parameters" of § 15 (4) "well
beyond what the Legislature intended for it to encompass." Id.
Every legal link must be "embodied in a law." Finneran, 476
Mass. at 721, quoting Garney, supra.
b. Applicable "laws" under § 15 (4). Section 15 (4) is
clear and unambiguous: the Legislature intended that pension
forfeiture result only where criminal conduct underlying a
particular conviction involved a violation of the "laws"
21
applicable to the member's office or position. In determining
what this limitation means, we must give the language effect
consistent with its plain meaning and refrain from reading into
the statute "a provision which the Legislature did not see fit
to put there" or "words that the Legislature had an option to,
but chose not to include" (citation omitted). Canton v.
Commissioner of the Mass. Highway Dep't, 455 Mass. 783, 789, 794
(2010) (statutory language should not be "enlarged or limited by
construction unless its object and plain meaning require it"
[citation omitted]). Moreover, because § 15 (4) is penal in
nature, its language must be construed narrowly, "not stretched
to accomplish an unexpressed result." Finneran, 476 Mass. at
719–720, quoting Bulger, 446 Mass. at 174-175.
The State board urges us to conclude that the "laws"
applicable to the office or position of State police trooper
include the State police rules and regulations, issued by the
colonel of the State police pursuant to G. L. c. 22C, §§ 3 and
10, which function as a code of conduct. These regulations
require, among other things, that troopers avoid conduct that
brings the State police into disrepute and obey all of the laws
of the United States and of the local jurisdiction in which the
trooper is present. We decline to do so.
First, there is no indication that the Legislature intended
§ 15 (4) to be triggered by a violation of a rule, regulation,
22
professional oath, code of conduct, or other internal practice
or policy that does not have the force of law. Had the
Legislature so intended, it certainly could have included
language to that effect, as it did in a preceding section. See
G. L. c. 32, § 10 (2) (c) ("Any member who is removed or
discharged for violation of the laws, rules and regulations
applicable to his office or position . . . shall not be entitled
to the termination retirement allowance provided for in this
subdivision"). We will not conclude that such language is
implied where the Legislature has excluded it. See Canton, 455
Mass. at 789 ("where the Legislature has carefully employed a
term in one place and excluded it in another, it should not be
implied where excluded" [citation omitted]); State Bd. of
Retirement v. Woodward, 446 Mass. 698, 706 (2006) (language
appearing in one section of statute should not be read into
another section where it does not appear).
Second, the State board's reliance on Bulger and Buonomo
for the proposition that codes of conduct might serve as the
applicable "law" because they establish the standards governing
the norms of conduct and practice is misplaced. In Bulger, we
concluded that the "laws" applicable to the office or position
of clerk-magistrate include the code because "it establishes the
very standards governing the norms of conduct and practice
associated with such office," and the code has "the force of
23
law," i.e., it is just as binding on the court and the parties
as would be a statute. See Bulger, 446 Mass. at 177–178;
Buonomo, 467 Mass. at 671. See also Opinion of the Justices,
375 Mass. 795, 813 (1978) (Supreme Judicial Court has "the
authority by rule to establish standards of conduct for judicial
employees and officials"); Empire Apartments, Inc. v. Gray, 353
Mass. 333, 337 (1967) ("Rules of court have the force of law
. . ."); Berkwitz, petitioner, 323 Mass. 41, 47 (1948) (rules of
court "have the force of law and are just as binding on the
court and the parties as would be a statute"). The code of
conduct relied on by the State board is neither a court rule nor
a statute. Cf. G. L. c. 22C (applicable to State police). In
short, it is not a "law" for purposes of § 15 (4).
While the officers' actions were clear and serious
violations of the law, it does not automatically follow that
they are subject to loss of their retirement allowance by virtue
of either their heightened obligation to uphold the law or their
special position of trust in our society. Our case law is
consistent on this point -- a legal link requires in the first
instance a violation of an expressly applicable "law." See
Finneran, 476 Mass. at 721 (criminal conduct must directly
implicate statute that is specifically applicable to employee's
position); Garney, 469 Mass. at 391 (criminal conduct must be
contrary to central function of position as articulated in
24
applicable laws). See also Buonomo, 467 Mass. at 670-671
(sufficient legal link between convictions and office where
public official's criminal conduct violated fundamental tenets
of code); Bulger, 446 Mass. at 179 (same). In this case,
neither board has identified a law expressly applicable to
police officers that either Swallow or O'Hare can be said to
have violated. Thus, "[t]he critical alignment of crime and
office through an applicable law, as required by this narrow
statute, is simply not present." Garney, supra at 395. We
conclude that in these cases, where there are neither factual
links nor legal links between the officers' positions and their
convictions, forfeiture of their pension allowances is not
legally tenable.
Conclusion. We affirm the decisions of the Superior Court
judges affirming the District Court judges' decisions and
vacating the boards' decisions.
So ordered.