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08/03/94 GOVERNOR & ANOTHER *FN1 v. JOHN P.

SUPREME JUDICIAL COURT OF MASSACHUSETTS


August 3, 1994

THE GOVERNOR & ANOTHER *FN1
v.
JOHN P. MCGONIGLE.

Suffolk. Civil action commenced in the Supreme Judicial Court for the Commonwealth on July 1, 1994. A hearing was held before the full court.

Present: Liacos, C.j., Wilkins, Abrams, Nolan, Lynch, O'Connor, & Greaney, JJ.

The opinion of the court was delivered by: Wilkins

Governor. Sheriff. Public Officer. Public Employment, Removal, Suspension.

WILKINS, J. On July 12, 1994, pursuant to our authority under G. L. c. 211, § 4 (1992 ed.), this court entered an order that temporarily suspended John P. McGonigle as sheriff of the county of Middlesex until further order of this court. Because of McGonigle's concession that, in such circumstances, his compensation should be suspended, we also ordered that McGonigle should not receive any further compensation as sheriff, until further order of this court.

On that day, we allowed Anthony M. Sasso, special sheriff of Middlesex County, to intervene as a respondent seeking a declaration that, in the circumstances and pursuant to G. L. c. 37, § 5 (1992 ed.), the special sheriff is to perform the duties of the sheriff during his unavailability. We agreed and declared that, because of the provisions of G. L. c. 37, § 5, the special sheriff is to perform the official duties of the sheriff of the county of Middlesex during the temporary suspension of the sheriff. *fn2 This opinion is entered in explanation of that order.

In McGonigle v. The Governor, ante 147 (1994), this court held that the Governor of the Commonwealth did not have the authority, pursuant to G. L. c. 268A, § 25 (1992 ed.), to suspend McGonigle from the office of sheriff. We noted that the Governor had filed a separate action before the court seeking to invoke this court's authority permanently to remove McGonigle as sheriff pursuant to G. L. c. 211, § 4. Id. at 152. We stated that, although § 4 "does not specifically enumerate the authority to suspend such an official, it is clear that the power to remove an official includes within it the authority to suspend that individual." Id. at 151.

1. A majority of the Justices may remove a sheriff from office if "sufficient cause is shown" and if "it appears that the public good so requires." We apply the same standard in determining whether the sheriff should be suspended, but, when the question is only suspension and not removal, "sufficient cause" need not rise to the same level as sufficient cause to remove.

The existence of a Federal court indictment charging the sheriff with serious crimes of corruption in the conduct of his office required that we suspend him from office while those charges are pending. The public good required such a suspension because it would be inappropriate for a sheriff, while under indictment, to continue to operate county correctional facilities and to participate in the Commonwealth's criminal Justice system. The fact of the indictment itself presented sufficient cause to require the suspension. Although an indictment, which is based solely on a finding of probable cause, would not alone present sufficient cause to remove a sheriff from office, the indictment itself provided sufficient cause for a suspension. Our Conclusion that there was sufficient cause to suspend the sheriff was not founded, therefore, in any respect on a determination that there is "sufficient cause" to believe that the sheriff committed any crime with which he has been charged.

2. We need not decide whether this court has the authority under G. L. c. 211, § 4, or otherwise, to order the withholding of the compensation of a sheriff whom we have suspended temporarily. No statute explicitly so provides. In his brief to this court the sheriff stated that "[a] suspension under G. L. c. 211, § 4 should be without compensation."

3. Once a sheriff is suspended temporarily from office, the special sheriff by statute is to perform the official duties of sheriff. G. L. c. 37, § 5. "If, by reason of illness, absence, interest or otherwise, the sheriff is unable to perform his official duties, they shall be performed by the special sheriff . . . ." Id. Because of our order, the sheriff is unable to perform his official duties. By operation of law, and not by any exercise of this court's discretion, the special sheriff assumes the official duties of sheriff.

The temporary suspension did not remove the sheriff from office. See Tobin v. Sheriff of Suffolk County, 377 Mass. 212, 214, 385 N.E.2d 972 (1979). Because the temporary suspension did not create a vacancy in the office of sheriff, the authority of the Governor under G. L. c. 54, § 142 (1992 ed.), to appoint someone to fill a vacancy in that office has no application. The existence of G. L. c. 37, § 5, providing for situations in which the sheriff's unavailability would be or might be temporary, leads us to reject the argument that the Governor has authority under G. L. c. 54, § 142, to fill a temporary "vacancy." Our Conclusion that the sheriff should be temporarily suspended from performing the duties of his office and that the period of his suspension should depend on the continuance of the criminal proceedings is consistent with the public policy stated in G. L. c. 268A, § 25 (1992 ed.), and applicable to certain other public officers and employees indicted for misconduct in office.

4. This court's experience with this proceeding and with McGonigle v. The Governor, supra, prompts the comment that the Legislature may wish to make provision for the temporary suspension of a sheriff and or any other elected county official who is subject to indictment. *fn3


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