State Board of Retirement v. O'Hare

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16-P-965 Appeals Court

STATE BOARD OF RETIREMENT vs. BRIAN O'HARE & another.1

No. 16-P-965.

Suffolk. September 8, 2017. - December 15, 2017.

Present: Rubin, Neyman, & Henry, JJ.

Retirement. Public Employment, Forfeiture of pension, Police.
Police, Regulations. Police Officer. State Police.

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.

David R. Marks, Assistant Attorney General, for State Board
of Retirement.
Eric B. Tennen for Brian O'Hare.

HENRY, J. Brian O'Hare was a sergeant with the

Massachusetts State police when he committed the Federal crime

of using the internet to entice a person under eighteen to

engage in unlawful sexual activity, a charge to which he

1
The Justices of the Cambridge District Court Department
(as nominal parties).
 2

subsequently pleaded guilty. This case presents the question

whether the State Board of Retirement (board) correctly ordered

forfeiture of O'Hare's retirement allowance under G. L. c. 32,

§ 15(4).2 General Laws c. 32, § 15(4), inserted by St. 1987, c.

697, § 47, provides that "[i]n no event shall any member [of the

State employees' retirement system] after final conviction of a

criminal offense involving violation of the laws applicable to

his office or position, be entitled to receive a retirement

allowance." Because we hold that O'Hare's actions had a direct

legal link to his position with the State police, we conclude

that O'Hare's conviction required forfeiture pursuant to

§ 15(4).

Background. Brian O'Hare served with the Massachusetts

State police for twenty years and, in 2006, held the rank of

sergeant and was a patrol supervisor and shift commander.

Between August, 2005, and February, 2006, O'Hare communicated

online with an individual whom he believed to be a fourteen year

old boy. O'Hare used a family computer while off duty to

communicate with the "youth." The youth was later revealed to

be an undercover Federal Bureau of Investigation (FBI) agent.

In February, 2006, O'Hare was arrested by the FBI after

arriving at a prearranged meeting place to meet the youth for

2
This case was paired for argument with Dell'Isola v. State
Bd. of Retirement, 92 Mass. App Ct. (2017).
 3

sexual purposes. In October, 2006, O'Hare resigned from the

State police while under Federal indictment. In February, 2007,

O'Hare pleaded guilty to one charge of using the internet to

attempt to coerce and entice a child under the age of eighteen

to engage in unlawful sexual activity, in violation of 18 U.S.C.

§ 2422(b).

After O'Hare's conviction, the board held a hearing and

denied O'Hare a retirement allowance under G. L. c. 32, § 15(4).3

O'Hare filed a timely complaint for judicial review in the

District Court, where a judge of that court reversed the board's

decision on the ground that O'Hare's offense did not involve a

violation of law applicable to his position with the State

police. The board filed for certiorari review by the Superior

Court, where a judge upheld the District Court's decision. The

board then appealed to this court.

Discussion. Judicial review pursuant to G. L. c. 249, § 4,

is in the nature of certiorari and is limited, "allow[ing] a

court to 'correct only a substantial error of law, evidenced by

the record, which adversely affects a material right of the

3
After the hearing officer entered recommended findings and
a decision, O'Hare filed a motion for reconsideration after this
court issued decisions in Retirement Bd. of Maynard v. Tyler, 83
Mass. App. Ct. 109, 112-113 (2013), and Durkin v. Boston
Retirement Bd., 83 Mass. App. Ct. 116 (2013). The hearing
officer denied the motion. The board then accepted the
recommended findings and decision.
 4

[member]. . . . In its review, the court may rectify only those

errors of law which have resulted in manifest injustice to the

[member] or which have adversely affected the real interests of

the general public.'" State Bd. of Retirement v. Bulger, 446

Mass. 169, 173 (2006), quoting from Massachusetts Bay Transp.

Authy. v. Auditor of the Commonwealth, 430 Mass. 783, 790

(2000).

As the purpose and operation of § 15(4) has been recently

and thoroughly reviewed in State Bd. of Retirement v. Finneran,

476 Mass. 714 (2017), we proceed directly to the question

whether there was a direct factual or legal link between

O'Hare's criminal conviction and his position. Given that there

was no evidence that O'Hare used the resources of his position

to commit the crime, the board focuses on the existence of a

legal link.

A legal link exists "when a public employee commits a crime

directly implicating a statute that is specifically applicable

to the employee's position. . . . The requisite direct legal

link is shown where the crime committed is 'contrary to a

central function of the position as articulated in applicable

laws.'" Finneran, 476 Mass. at 721, quoting from Garney v.

Massachusetts Teachers' Retirement Sys., 469 Mass. 384, 391

(2014). Thus, for example, the Supreme Judicial Court held that

a member forfeited his pension as a city alderman when he, in
 5

his subsequent position as register of probate, embezzled funds

from that office in violation of the Code of Professional

Responsibility for Clerks of Courts. See Retirement Bd. of

Somerville v. Buonomo, 467 Mass. 662, 664-666 (2014).

Similarly, in Bulger, supra, forfeiture was warranted when

a clerk-magistrate committed perjury and obstruction of justice

in an arguably personal matter. When he committed those crimes

"he violated the fundamental tenets of the code and of his oath

of office" -- at the heart of which "is the unwavering

obligation to tell the truth, to ensure that others do the same

through giving of oaths to complainants, and to promote the

administration of justice." Id at 179. "[T]he nature of [his]

particular crimes cannot be separated from the nature of his

particular office when what is at stake is the integrity of our

judicial system," and forfeiture was required. Id. at 180.

Recently, in Essex Regional Retirement Bd. v. Justices of

the Salem Div. of the Dist. Ct. Dept. of the Trial Court, 91

Mass. App. Ct. 755, 756-757 (2017), this court found that

forfeiture was required where a police officer, while off duty,

used a personal firearm to threaten his wife's life and, after

she left the home, fired into a door. Such action "directly

violated the public's trust and was a repudiation of his

official duties." Id. at 760.
 6

Here, the board invites us to conclude that the laws

applicable to the office or position of State trooper include

the rules and regulations of a code of conduct. These

regulations require, among other things, that troopers avoid

conduct "which brings the Massachusetts State [p]olice into

disrepute or reflects discredit upon the person as a member of

the Massachusetts State [p]olice." The regulations also require

State troopers to obey all of the laws of the United States and

of the local jurisdiction in which the trooper is present.4

Because this would have the effect of making any violation of

law mandate forfeiture, which the Supreme Judicial Court has

already held is not permissible, see Bulger, 446 Mass. at 178-

179, we decline the invitation.

Nonetheless, in evaluating forfeiture cases involving law

enforcement personnel, we have acknowledged the special position

of law enforcement officers:

"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. . . . 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."

4
Pursuant to G .L. c. 22C, §§ 3 and 10, the Colonel of the
State police has promulgated rules and regulations that function
as a code of conduct.
 7

Attorney Gen. v. McHatton, 428 Mass. 790, 793-794 (1999),

quoting from Police Commr. of Boston v. Civil Serv. Commn., 22

Mass. App. Ct., 364, 371 (1986). "This applies to off-duty as

well as on-duty officers." Falmouth v. Civil Serv. Commn., 61

Mass. App. Ct. 796, 801 (2004).

O'Hare's position as a law enforcement officer

distinguishes this case from other cases in which a member was

convicted of a crime involving children, but the Supreme

Judicial Court and this court in those cases held that the

criminal offense did not fall within the purview of § 15(4). In

Garney, 469 Mass. at 394-395, the Supreme Judicial Court held

that pension forfeiture was not warranted where a teacher

possessed child pornography, a crime that endangers children

generally, but did not use his status as a teacher, or involve

the students he taught, or even the district for which he

worked. Similarly, in Tyler, 83 Mass. App. Ct. 109, 113 (2013),

this court held that the narrow scope of § 15(4) precluded

pension forfeiture for a fire fighter who had sexually abused

young boys. His essential duty as a fire fighter was to

extinguish fires and to protect life and property. In Tyler,

Garney, and Essex Regional Retirement Bd., the fundamental

nature of each position was key in determining pension

forfeiture.
 8

As in Essex Regional Retirement Bd., 91 Mass. App. Ct. at

760, we face the difficulty of considering the fact that any and

all violations of law do not necessarily mandate forfeiture, see

Bulger, 446 Mass. at 178-179, and the fact that "police officers

voluntarily undertake to adhere to a higher standard of conduct

. . . than ordinary citizens." Essex Regional Retirement Bd.,

91 Mass. App. Ct. at 761.

When pressed to determine the line, the board at oral

argument ventured that a conviction for trespassing or perhaps

operating a motor vehicle under the influence might not warrant

pension forfeiture. This may have been an effort to delineate a

moral or mens rea line in various crimes. We need not speculate

on the full reach of section 15(4) for crimes committed by State

troopers, however, because O'Hare's crime involved intentional

action that would cause significant harm to a child.5 O'Hare's

egregious actions are in violation of the fundamental tenets of

his role as a State police officer, 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

5
Similarly, because the member here was a State trooper, we
need not confront what could be a difficult question of
determining who is a law enforcement officer. For example, the
Attorney General is "the chief lawyer and law enforcement
officer of the Commonwealth of Massachusetts" and therefore
arguably at least some assistant attorneys general are law
enforcement officers. https://www.mass.gov/orgs/office-of-
attorney-general-maura-healey [https://perma.cc/9WMH-S3TC].
 9

violated the public's trust and the integrity of the State

police. See Bulger, 446 Mass. 180.6 See also Durkin v. Boston

Retirement Bd., 83 Mass. App. Ct. 116, 119 (2013) ("[A]t the

heart of a police officer's role is the unwavering obligation to

protect life").7 O'Hare's argument that his position of patrol

supervisor and shift commander at the time of the offense meant

that he was not responsible for policing crimes against children

is not persuasive because it relies on the happenstance of a

particular job assignment at the time of the crime and parses

too fine a line for the central tenets of a law enforcement

officer's position.

The judgment is reversed, and a new judgment shall enter in

the Superior Court in favor of the board.

So ordered.

6
We reiterate that not every criminal conviction, and not
even every conviction involving a law enforcement officer,
necessitates forfeiture. See Durkin, 83 Mass. App. Ct. at 119,
n.5.
7
In Durkin, 83 Mass. App. Ct. at 119, forfeiture was
similarly required when a police officer shot a fellow officer
using a department-issued firearm. Although the court discussed
the fundamental nature of the police officer's position,
forfeiture in Durkin was based on a factual link, not a legal
link.