Brittle v. City of Boston

Armstrong, C.J.

In July, 1994, police Sergeant Wilbur Brittle was suspended without pay from the Boston police department due to a pending indictment charging that he had stalked (G. L. c. 265, § 43[tz]) and threatened (G. L. c. 275, § 2) a former girlfriend, Laverne Cotton. As a result of the decision the following month in Commonwealth v. Kwiatkowski, 418 Mass. 543, 546-547 (1994), holding the stalking statute as theretofore applied unconstitutionally vague, the Commonwealth dismissed the stalking count of the indictment. The threats count remained pending until November 19, 1996, when the district attorney’s office filed a nolle prosequi. In the meantime, however, on June 13, 1996, a Federal grand jury had returned indictments charging Brittle with several drug offenses, including conspiring with Cotton and others to import and distribute heroin. The Federal charges were resolved by guilty pleas filed on November 5, 1997, and Brittle was sentenced to ten years’ imprisonment. He resigned from the police force the same day. Brittle thereafter demanded his withheld pay for the period he was under suspension,¹ and he brings the present appeal from a decision on a motion for summary judgment, ruling that he is not entitled to repayment.

The governing statute is G. L. c. 268A, § 25, which provides for the suspension of municipal officers or employees who are under indictment for misconduct while in office. Like a sister statute, G. L. c. 30, § 59, providing for the suspension of State employees while under indictment, the employee under suspension “shall not receive any compensation . . . during the period of such suspension . . . [but i]f the criminal proceedings . . . are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall forthwith be removed, and he shall receive all compensation or salary due him for the period of his suspension.” Madden v. Secretary of Pub. Safety, 412 Mass. 1010, 1010-1011 (1992), quoting from G. L. c. 30, § 59.

In the Madden case, a Capitol police officer was suspended under § 59 on State indictments charging larceny, conspiracy, and receiving stolen goods. Id. at 1010. Those charges were dropped on the entry of a nolle prosequi, but the Secretary of Public Safety refused to remove the suspension because the officer was thereafter indicted on Federal charges of conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and conspiracy to commit mail fraud. Madden ultimately pleaded guilty to the mail fraud charge. Id. at 1011.

On those facts, the court held that Madden was entitled to his back pay for the period of his suspension, up to the point at which the secretary refused to remove the suspension due to the Federal charges (which the court treated as the start of a second suspension):

“The language of G. L. c. 30, § 59, is unambiguous. The statute provides for payment of back compensation and benefits if none of the ‘charges on which [the employee] was indicted’ results in a finding or verdict of guilty. G. L. c. 30, § 59. The phrase ‘charges on which he was indicted’ clearly refers to the charges found in the indictments that gave rise to the suspension. In the present case, the charges that gave rise to the suspension in question were those brought by the Commonwealth. As these charges did not result in a finding or verdict of guilty, the plaintiff is entitled to back pay for the period of the suspension.” Ibid.

We are bound similarly to apply the identical language of G. L. c. 268A, § 25, to the present case, because the charges on which Brittle was suspended, stalking and threats, were dismissed without a finding or verdict of guilt.²

None of the points of difference argued by the Commonwealth seems sufficient to support a different result. It is true that the Federal indictments in this case were returned prior to the entry of the nolle prosequi on the last of the State charges (that for threats), whereas in Madden, there was a period of several weeks between entry of the nolle prosequi of the State indictments and the return of the Federal indictments. Madden, 412 Mass. at 1011. Thus Brittle, unlike Madden, was continuously under indictment until the time of his conviction. But the rationale of Madden makes the difference immaterial. Madden was entitled to back pay not because there existed a temporal “gap” between the State and Federal charges, but because the charges that formed the basis of his suspension did not result in a finding or verdict of guilt. Ibid. Brittle could not have been suspended under § 25 on the basis of Federal indictments until at least June, 1996, when those indictments were returned. Reading § 25 to deny Brittle his back pay because he was found guilty under indictments that could not have formed the basis of his July, 1994, suspension would abrogate Madden’s central holding.

Second, the Commonwealth argues that Madden should not apply because the State charges against Brittle that were dismissed were factually related to the Federal Ccharges on which he was convicted. That is to say, the complainant in the State charges, Láveme Cotton, was an unindicted coconspirator in the heroin smuggling and distribution operation that was the subject of the Federal charges, and it was a dispute over Brittle’s claim for a share of the proceeds that underlay the acts of threatening and stalking alleged in the State indictments. That said, nothing of relevance follows. The State and Federal charges were legally distinct; the only sense in which they overlapped was that for a brief period both sets of charges were pending. Offenses are not related merely because they were committed by the same defendant, even on the same day. Commonwealth v. Green, 52 Mass. App. Ct. 98, 102 (2001).³ Although the assistant district attorney in entering the nolle prosequi asserted that the State and Federal charges were “directly related” and that Láveme Cotton could be called to give testimony in both, no reason was suggested why the pending State threats charge constituted an impediment to prosecution of the Federal charges. In any event, whatever the reason for the dismissals, the city is bound by the mandate of § 25 to restore the withheld pay because the charges were terminated without a finding or verdict of guilt.

The more difficult issue concerns the period for which Brittle is to receive his back pay. Brittle’s resignation from the police department on November 5, 1997, as matter of law ended the period of his suspension, and the fact that the police commissioner failed to issue a new suspension letter based on the return of the Federal indictments, coupled with a failure by the city to end the suspension at any earlier time, makes it arguable that Brittle could be owed back pay to November 5, 1997. It is equally arguable, however, that Brittle should be deemed estopped from recovering back pay beyond the date when the threats charge was dismissed, due to his delay in seeking reinstatement and back pay, on the theory that he should not benefit from delay in asserting his rights. (Madden, by contrast, promptly demanded his back pay upon the dismissal of the State charges. Madden, 412 Mass. at 1011.) Brittle’s delay in asserting his claim until after he had been sentenced on the Federal charges⁴ prejudiced the city by not alerting it to the fact that the State charges had been dropped at a time when the police commissioner could have sent a new suspension letter or reconfirmed the existing letter based on the pending Federal charges.⁵

Whether estoppel should apply need not be decided. Brittle did not include his claim letter in the record appendix, and his complaint in the Superior Court did not specify the date to which back pay was claimed. Brittle’s brief in this court seeks back pay “from July 13, 1994, to November 5, 1997; or alternatively from July 13, 1994, to the date of the Federal indictment in June, 1996.” Brittle does not argue concerning the appropriate terminal date for the back pay. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). As it is clear that Brittle is owed his back pay at least to the earlier of the two dates, and Brittle argues for no longer period, there is no need for us to consider his possible entitlement to back pay in the larger amount.

The judgment is reversed, and a new judgment is to be entered declaring that Brittle is to be paid his regular compensation from July 13, 1994, the date he was placed on suspension, to June 13, 1996, the day that the Federal indictments were returned.

So ordered.

1 Brittle submitted his resignation to the Boston police department on the same day he pleaded guilty and was sentenced. He demanded his back pay in December, 1997.

2 It is trac, as the dissent points out, that the decision in Bessette v. Commissioner of Pub. Works, 348 Mass. 605, 608 (1965), characterized the statute as “protecting] the suspended employee upon his vindication,” but nothing in Bessette suggests that “vindication” envisioned something more than the statutorily specified “termination] without a finding or verdict of guilty on any of the charges on which he was indicted.” It is unpalatable to restore back pay to a police officer convicted of drag dealing, but our role as a court is to enforce the terms of the statute as it is written, not as we with the benefit of hindsight would add to its terms.

3 One can imagine cases involving dual prosecutions, wherein the State and Federal prosecutions are for the same conduct or course of conduct that violates the laws of both sovereignties, as in, for example, Commonwealth v. Cepulonis, 374 Mass. 487, 490 (1978). If we assume, without so deciding, that in such a case, the Federal prosecution could be treated as identical to the State prosecution for purposes of § 25, perhaps by analogy to a grand jury indictment that supercedes a District Court criminal complaint for the same conduct, then in such a case we could conclude that the letter of suspension should be treated as extending equally to the later brought but essentially identical Federal charges, with the result that the Federal conviction would justify not returning pay for the whole period of the suspension, regardless what became of the original State charges. In the present case, however, there is no such identity of State and Federal indictments.

4 At sentencing on the Federal conviction, Brittle, without divulging his potential claim for back pay, argued that he should not be fined on the ground that he had no resources.

5 Indeed, nothing we say should be read to preclude the possibility that the suspension letter issued with the State indictments in mind, without any fuiJ- ,er act of renewal as reconfirmation, might suffice to cover any subsequent indie iment from the date it was handed down.