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16-P-1158 Appeals Court
ESSEX REGIONAL RETIREMENT BOARD vs. JUSTICES OF THE SALEM
DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT1
& another.2
No. 16-P-1158.
Essex. March 8, 2017. - July 12, 2017.
Present: Grainger, Blake, & Neyman, JJ.3
Public Employment, Retirement, Forfeiture of pension. Police,
Retirement. Pension. Constitutional Law, Public
employment, Excessive fines clause. County, Retirement
board. Practice, Civil, Action in nature of certiorari.
District Court, Appeal to Superior Court.
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.
Michael Sacco for the plaintiff.
Thomas C. Fallon for John Swallow.
1
As nominal parties.
2
John Swallow.
3
Justice Grainger participated in the deliberation on this
case and authored this opinion prior to his retirement.
2
GRAINGER, J. The plaintiff, Essex Regional Retirement
Board (board), appeals from a judgment allowing a motion for
judgment on the pleadings in favor of defendant John Swallow.
The board determined that Swallow's convictions of various
criminal offenses committed in October, 2012, while on
administrative leave, render him ineligible to receive a
retirement allowance pursuant to G. L. c. 32, § 15(4). We
agree, and conclude that Swallow's convictions fall within the
purview of § 15(4). We remand the case for consideration of the
constitutionality of the assessed penalty under the Eighth
Amendment to the United States Constitution.
Background. We summarize the procedural history and the
underlying relevant facts which are undisputed. In June, 2012,
Swallow was placed on administrative leave from his duties as a
sergeant in the Manchester police department. At that time he
was also suspended from a second job he held as a paramedic with
Northeast Regional Ambulance Service. Although Swallow left his
badge and his service handgun at the police station, his license
to carry a firearm was not suspended at that point. After being
placed on administrative leave, Swallow experienced significant
depression and began drinking heavily on a daily basis.
On the afternoon of October 26, 2012, Swallow was at home
with his wife, Lauren Noonan. He was drinking heavily and the
3
couple began arguing, initially because Noonan was concerned
that Swallow might drive his car. The quarrel escalated; Noonan
went to her bedroom and sat on the bed with one of her dogs.
Swallow then entered the room with a .45 caliber handgun, and
grabbed Noonan by the shirt. He began screaming at her, and
waved the gun in her face. He then pointed the gun at the dog
and threatened to kill it. Noonan stood up, pushed past Swallow
and left the house, walking to her next door neighbors' house.
While in the neighbors' driveway, she heard a gunshot and
telephoned the police from the neighbors' house.
Swallow apparently had fired the gun into a door, then put
the gun down, walked outside, and sat on the front steps of the
house. The Beverly police arrived in response to Noonan's
summons and placed Swallow under arrest. The police recovered
the fired bullet in the upstairs bedroom. A search of the house
revealed numerous guns and other weapons in the bedroom.4
As a result of this incident, Swallow admitted to
sufficient facts on the following charges: (1) assault and
battery, in violation of G. L. c. 265, § 13A(a), (2) discharge
of a firearm within 500 feet of a building, in violation of G.
L. c. 269, § 12E, (3) assault by means of a dangerous weapon, in
4
In the basement, the officers observed hundreds of rifles
and thousands of rounds of ammunition. Most of these apparently
belonged to a friend of Swallow's who was deployed in
Afghanistan.
4
violation of G. L. c. 265, § 15B(b), (4) three counts of
improper storage of a firearm, in violation of G. L. c. 140, §
131L(a) and (b), and (5) intimidation of a witness, in violation
of G. L. c. 268, § 13B.
The board determined that Swallow's criminal convictions
were violations of laws applicable to the office or position of
a police officer as defined in G. L. c. 32, § 15(4), thus
requiring forfeiture of his pension. Swallow appealed the
board's decision to the District Court; on cross motions for
judgment on the pleadings, the District Court judge reversed the
board's decision, finding that there was "no evidence of any
direct link" between Swallow's criminal convictions and his
employment. The board's petition to the Superior Court was
certified pursuant to G. L. c. 249, § 4. A judge of the
Superior Court affirmed the District Court judge's decision,
finding that the narrow scope of § 15(4) did not require pension
forfeiture on this record. The board timely appealed.
Discussion. In our review, we are limited to a
determination whether the board's decision was unsupported by
substantial evidence or was an error of law that either resulted
in manifest injustice to Swallow or would have adversely
affected real interests of the general public. See Garney v.
Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 388
(2014); Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct.
5
538, 542 (2011) ("Certiorari allows a court to correct only a
substantial error of law, evidenced by the record, which
adversely affects a material right of the [party appealing]"
[quotation omitted]).
1. Pension forfeiture. We turn to the statutory basis of
the board's decision. Section 15(4) requires "any member after
final conviction of a criminal offense involving violation of
. . . laws applicable to his office or position" to forfeit his
pension (emphasis supplied). G. L. c. 32, § 15(4), inserted by
St. 1987, c. 697, § 47. The analysis is necessarily fact
specific. See Garney, supra at 385.
"The nexus required by G. L. c. 32, § 15(4), is not that
the crime was committed while the member was working, or in a
place of work, but only that the criminal behavior be connected
with the member's position." Durkin v. Boston Retirement Bd.,
83 Mass. App. Ct. 116, 119 (2013). It is clear that § 15(4)
"did not intend pension forfeiture to follow as a sequelae of
any and all criminal convictions." Gaffney v. Contributory
Retirement Appeal Bd., 423 Mass. 1, 5 (1996).
When public employees commit criminal acts unrelated to the
duties of their position and unconnected to the use of
information or property gained through their employment, our
courts have found no "direct factual link" between their
position and the criminal behavior. Garney, supra at 389. In
6
Retirement Bd. of Maynard v. Tyler, 83 Mass. App. Ct. 109
(2013), we determined that the narrow scope of § 15(4) precluded
pension forfeiture for a fire fighter who "had, for a number of
years, been sexually abusing young boys." Id. at 109. Although
we recognized "the essential role firefighters play,
extinguishing fires and protecting life and property," we
concluded that the crimes were "personal in nature, occurring
outside the firehouse while [the fire fighter] was not on duty."
Id. at 112-113.
Similarly, in Herrick v. Essex Regional Retirement Bd., 77
Mass. App. Ct. 645, 654 (2010), we determined that although the
employee, a custodian for a public housing authority, sexually
assaulted his daughter, he was entitled to his pension as the
offense was not "connected with [the employee]'s official
capacity[;] . . . it was not committed upon anyone who was
employed by or who resided at the public property, [and it did
not] occur [on the public property]." See Garney, supra at 384
(pension forfeiture unwarranted "where a teacher has engaged in
criminal activity that endangers children generally, but does
not involve the students whom he taught, the school district for
which he worked, or the use of his status as a teacher");
Scully, 80 Mass. App. Ct. at 543-544 (no direct link between
library position and possession of child pornography).
7
On the other hand, our courts have found a direct link when
public employees committed arguably less egregious crimes, but
acted in a manner contrary to ethics and values central to their
position.5 In State Bd. of Retirement v. Bulger, 446 Mass. 169,
179-180 (2006), the Supreme Judicial Court concluded that a
clerk-magistrate of the Juvenile Court forfeited his pension
when he was convicted of two counts of perjury and two counts of
obstruction of justice.6 The court emphasized that "[a]t the
heart of a clerk-magistrate's role is the unwavering obligation
to tell the truth, to ensure that others do the same through the
giving of oaths to complainants, and to promote the
administration of justice." Id. at 179. Because the employee
"violated the fundamental tenets of the [Code of Professional
Responsibility for Clerks of the Courts, S.J.C. Rule 3:12, as
amended, 427 Mass. 1322 (1998),] and of his oath of office,
notwithstanding his contention that such misconduct occurred in
the context of what was arguably a personal matter," § 15(4)
required that he forfeit his pension. Bulger, supra at 179.
5
Most recently, in State Bd. of Retirement v. Finneran, 476
Mass. 714, 721 (2017), the Supreme Judicial Court categorized
these cases as having "direct legal links," reasoning that the
crime committed directly implicated a statute that was
specifically applicable to the employee's position.
6
These charges stemmed from the employee's testimony in a
grand jury investigation of his brother. Bulger, supra at 171.
8
The court decided similarly in Retirement Bd. of Somerville
v. Buonomo, 467 Mass. 662, 663-664 (2014), where it required a
register of probate to forfeit his pension after being convicted
of numerous counts of breaking into a depository (i.e., a cash
vending machine), larceny, and embezzlement. The court reasoned
that the behavior of one holding the office must comport with
the Code of Professional Responsibility for Clerks of the
Courts, which requires registers to comply with the laws of the
Commonwealth. Id. at 671. The employee's "commission of such
criminal offenses, which was facilitated by his access and
proximity to the cash vending machines, compromised the
integrity of and public trust in the office of register of
probate." Ibid.
Turning to the facts of our case, we first acknowledge the
special position that police officers hold.
"Police officers must comport themselves in accordance with
the laws that they are sworn to enforce and behave in a
manner that brings honor and respect for rather than public
distrust of law enforcement personnel. They are required
to do more than refrain from indictable conduct. . . . In
accepting employment by the public, they implicitly agree
that they will not engage in conduct which calls into
question their ability and fitness to perform their
official responsibilities."
Attorney Gen. v. McHatton, 428 Mass. 790, 793-794 (1999)
(quotation omitted). "This applies to off-duty as well as on-
duty officers." Falmouth v. Civil Serv. Commn., 61 Mass. App.
Ct. 796, 801 (2004).
9
We further recognized this principle in Durkin, 83 Mass.
App. Ct. at 118-119, where we affirmed pension forfeiture
imposed on an off-duty police officer who used his service
weapon to shoot a fellow police officer after a night of
drinking. "[P]olice officers, who are extensively trained in
the use of firearms, and who carry their service revolvers with
them while off-duty, have a high degree of responsibility to
which the public deserves and demands adherence." Ibid.
(footnote omitted). The police officer "engaged in the very
type of criminal behavior he was required by law to prevent.
Th[e] violation was directly related to his position as a police
officer as it demonstrated a violation of the public's trust as
well as a repudiation of his official duties." Id. at 119.
In the present case, Swallow threatened his wife with a
handgun, waving and pointing the gun at her, without any
justification. Although the incident occurred at home in the
context of a personal matter, we find Swallow's behavior
contrary to the fundamental tenets of the role of a police
officer. See ibid. ("[A]t the heart of a police officer's role
is the unwavering obligation to protect life"). Swallow's use
of a gun, despite its not being his service firearm, to threaten
another's life directly violated the public's trust and was a
repudiation of his official duties. We therefore conclude that
10
the board's decision was supported by substantial evidence and
was not an error of law.
2. Excessive fine. We turn to the argument that
forfeiture of Swallow's pension would violate the excessive
fines clause of the Eighth Amendment. See, e.g., Public
Employee Retirement Admin. Commn. v. Bettencourt, 474 Mass. 60,
77 (2016).
The board determined that "Swallow [is] entitled to a
return of his accumulated total deductions, less any accrued
interest." However, the record before us is parsimonious with
respect to the value of Swallow's retirement allowance7 and what
portion of that constituted deductions from Swallow's salary.
"[A] forfeiture can be excessive 'if it is grossly
disproportional to the gravity of a defendant's offense.' . . .
[The factors to determine proportionality] include the gravity
of the offense, the maximum penalties, whether the violation was
related to any other illegal activities, and the harm resulting
from the crime." MacLean v. State Bd. of Retirement, 432 Mass.
339, 346 (2000), quoting from United States v. Bajakajian, 524
U.S. 321, 334 (1998). Swallow bears the burden of proving his
pension forfeiture is excessive. Bettencourt, supra at 72. The
excessiveness determination may be guided by MacLean, supra at
7
The District Court judge's decision states that Swallow's
retirement allowance totals $1.6 million. The judge does not
state the basis of that determination.
11
345-350 (forfeiture of pension totaling approximately $625,000
was not excessive for State employee who pleaded guilty to two
misdemeanor violations of G. L. c. 268A, § 7, conflict of
interest statute, where employee gained $512,000 through his
illegal actions); Maher v. Retirement Bd. of Quincy, 452 Mass.
517, 523-525 (2008) (forfeiture of pension totaling $576,000 not
grossly disproportional to employee's convictions of breaking
and entering into building in daytime with intent to commit
felony, see G. L. c. 266, § 18, stealing in building, see G. L.
c. 266, § 20, and wanton destruction of property, see G. L.
c. 266, § 127); Bettencourt, supra at 72-75 (forfeiture of
$659,000 not proportional, hence constitutionally excessive, as
penalty for unauthorized use of State computer system and
invasion of privacy); and State Bd. of Retirement v. Finneran,
476 Mass. 714, 723-724 (2017) (forfeiture of $433,400 not
excessive fine after employee committed felony connected to
violation of Federal law carrying maximum penalty that includes
ten years' imprisonment and $250,000 fine).
We remand for a finding of the specific amount forfeited by
Swallow and a determination whether that amount is
constitutionally excessive.
Conclusion. This case illustrates the difficulty inherent
in applying the test enunciated by G. L. c. 32, § 15(4). Some
of the illustrative fact patterns cited above are reasonably
12
clear (e.g., the disconnect between the duties of a fire fighter
and charges of child abuse in Scully, contrasted with the
evident correlation between perjury and obstruction of justice
to the duties of a clerk-magistrate in Bulger). But in many
instances, and especially those involving police officers whose
duties involve enforcement of every law on our books, see
McHatton, 428 Mass. at 793-794, there is no logical distinction
between various areas of misconduct. The diverse arguments that
may be employed either to distinguish or apply the facts of
Durkin to this case amply demonstrate the problem.
This difficulty is exacerbated by applying a de facto
criminal penalty to the contractual nature of pension plans,
partly funded by the putative defendant. The simple enactment
of statutory fines for criminal conduct, without reference to a
defendant's employment, would provide a straightforward and
time-tested mechanism to arrive at the same result. It would
also remove the need for case-by-case determination of the
constitutionality of a forfeiture amount that is the result of
employment history and past compensation levels, rather than
fittingly based on the degree of misconduct.
The judgment is reversed, and a new judgment shall enter in
the Superior Court reversing the judgment of the District Court
and remanding the case to the District Court for further
proceedings consistent with this opinion.
13
So ordered.