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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.
