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Frawley v. Police Commissioner of Cambridge

Supreme Judicial Court of Massachusetts, Middlesex

March 4, 2016

Joseph F. Frawley, Jr.
v.
Police Commissioner of Cambridge

         Argued November 5, 2015

          Civil action commenced in the Superior Court Department on November 13, 2012.

         The case was heard by Douglas H. Wilkins, J., on motions for summary judgment.

Page 717

          The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Samuel A. Aylesworth, Assistant City Solicitor, for the defendant.

          James F. Lamond ( Dennis M. Coyne with him) for the plaintiff.

         Present: Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines, JJ.

          OPINION

          [46 N.E.3d 507] Spina, J.

          When Joseph F. Frawley, Jr., retired on March 4, 2004, from his position as a sergeant with the Cambridge police department (department), the police commissioner for the city of Cambridge (city) issued him a " retired officer identification card" (ID card) that had no expiration date. On December 22, 2011, Frawley applied for the issuance of a replacement ID card because the one in his possession had broken. The successor police commissioner (commissioner) denied the application, stating that Frawley " ha[d] not met the standard set by the Department." On November 28, 2012, Frawley filed an amended complaint for declaratory and injunctive relief in the Superior Court. He sought a declaration that the commissioner had committed a breach of his duty under 501 Code Mass. Regs. § § 13.00 (2008) (regulations), which set forth the standards for identification cards for retired law enforcement officers, by refusing to issue Frawley a replacement ID card. The ID card, together with a so-called " Law Enforcement Officers Safety Act Training and Certification Card" (training certification card), allows the holder to carry a concealed firearm in accordance with the provisions of the Law Enforcement Officers Safety Act of 2004 (LEOSA), Pub. L. No. 108-277, 118 Stat. 865 (2004), codified insofar as relevant here at 18 U.S.C. § 926C (2012). See 501 Code Mass. Regs. § 13.04(2)(a). After determining that Frawley had standing to seek declaratory relief, a judge allowed Frawley's motion for summary judgment, declaring that he was entitled to receive a replacement ID card because he had retired " in good standing." Id. at § § 13.02, 13.03. The commissioner appealed, and we transferred the case to this court on our own motion. We affirm, but for reasons different from those articulated by the judge.

         1. Statutory and regulatory framework.

         On July 22, 2004, Congress enacted LEOSA, which permits a " qualified retired law enforcement officer" who possesses the requisite State-issued identification to " carry a concealed firearm that has been shipped or transported in interstate or foreign commerce," subject to certain enumerated restrictions. 18 U.S.C. § 926C. Several years later, on January 11, 2008, the Massachusetts Executive Office of

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Public Safety and Security promulgated " rules and regulations governing the standards for identification cards for retired law enforcement officers to comply with the provisions of [LEOSA]." [1] 501 Code Mass. Regs. § 13.01. Pursuant to these regulations, " [t]he chief law enforcement officer for a law enforcement agency shall issue an identification card to a qualified retired law enforcement officer, who retired from that law enforcement agency" (emphasis added). Id. at § 13.03. A " qualified retired law enforcement officer" is an individual who, among other things, " retired in good standing from service with a law enforcement agency as a law enforcement officer, other than for reasons of [46 N.E.3d 508] mental instability." [2],[3] Id. at § 13.02. The regulations do not define what it means to have retired " in good standing."

          The department is a " law enforcement agency" within the meaning of 501 Code Mass. Regs. § 13.02. The commissioner is its " chief law enforcement officer" under the provisions of § 2.52.010

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of the Cambridge Code of Ordinances (Ordinances). See 501 Code Mass. Regs. § 13.02; Ordinances § 2.52.010 (1990). The authority of the commissioner includes the power to " organize and administer the Department," Ordinances § 2.52.030(A) (1989), and to " make suitable regulations governing the Department and the officers thereof, subject to the approval of the City Manager." Ordinances § 2.52.010. Pursuant to this authority, the commissioner issued " Policy and Procedures No. 151" (Policy 151), entitled " Police Identification Card Program," on August 6, 2011. Its stated purpose is " to describe how [the] department will go about issuing police identification cards to sworn members of the Cambridge Police Department, as well as to those members of the department who retire from the Cambridge Police Department." Policy 151 § I. The procedures pertaining to retired police officers state that " [t]he department will issue one police identification card to sworn members of the department who have separated from service from the Cambridge Police Department and qualified to receive said identification card, identifying said members as ... retired police." Policy 151 § IV(F). A retired police officer is qualified to receive an ID card where, among other criteria, the officer " [s]eparated in good standing, meaning that such officer was not charged with or suspected of criminal activity at the time of retirement or separation from the department, nor was he/she under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty." Policy 151 § IV(F)(1)(a).

         2. Factual and procedural background.

         The department hired Frawley on October 14, 1980. He worked as a full-time patrol officer until April 1, 1990, when he was promoted to the rank of sergeant. Frawley served in that position until March 4, 2004, the effective date of his retirement. His tenure with the department was not entirely without incident.

          [46 N.E.3d 509] Commencing on February 6, 2001, Frawley was suspended without pay for five days for insubordination toward a superior officer. Subsequently, on November 19, 2003, Frawley, the city, and the Cambridge Police Superior Officers Association (union) entered into a written memorandum of agreement (agreement) in which they resolved several employment disputes. Among other matters, Frawley agreed to accept a fifteen-day unpaid suspension in partial resolution of disciplinary charges that the city had brought against him in April, 2002. These charges followed a department investigation which concluded that on several occasions when Frawley

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had reported that he was out on sick leave, he actually was conducting private business activities and lying about his location on the days in question. As to the remaining disciplinary charges from April, 2002, which pertained to Frawley's failure to be truthful during a grievance hearing, the parties agreed to hold them open, but the city would take no further action unless Frawley was suspended for five or more days in the future, at which point the city could revive the charges. The agreement did not include any admission of culpability by Frawley, did not mention his eligibility for retirement, and did not limit Frawley's ability to exercise police powers or to possess a firearm after the service of his fifteen-day suspension. Once he served his suspension, Frawley returned to unrestricted duties as a police sergeant and continued to work in that capacity until he retired.

         At around the time of Frawley's retirement, the Cambridge city council adopted a resolution " expressing its appreciation to Joseph F. Frawley, Jr., for his twenty-nine [ sic ] years of dedicated service to the citizens and to the City of Cambridge and wish[ing] him much happiness in his retirement." The commissioner's predecessor then issued Frawley an ID card,[4] even though the department was in the midst of investigating a citizen complaint that had been filed against Frawley on September 29, 2003. The citizen alleged that, approximately one year earlier, Frawley had abused his power and made a false arrest in connection with a purported breaking and entering in the nighttime at an apartment building. The citizen had been employed by Frawley at some unspecified time in the past, and he believed that his arrest was related to this prior employment. An investigation by an internal affairs division of the department ensued. Following a review of the circumstances surrounding the incident, it was determined that the arrest was proper and not connected to any past relationship between Frawley and the citizen. In December, 2004, the department cleared Frawley of the alleged wrongdoing. During the portion of the investigation that occurred prior to Frawley's retirement, Frawley's law enforcement duties and responsibilities were not restricted in any manner.

         On December 22, 2011, Frawley applied for the issuance of a replacement ID card because the one in his possession had broken. He attested on his application that, among other factors,

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he " separated from service with the department in good standing as a police officer, meaning that [he] was not charged with or suspected of criminal activity at the time of separation, nor was [he] under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty." See Policy 151 § IV(F)(1)(a). Following a professional standards review, [46 N.E.3d 510] Frawley's application was deemed " not recommended." By letter dated February 6, 2012, the commissioner informed Frawley that the department would not be issuing him a replacement ID card because Frawley had not met " the standard set by the Department."

         In his amended complaint, Frawley sought a declaration that the commissioner committed a breach of his legal duty under 501 Code Mass. Regs. § 13.03 to issue Frawley an ID card based on his status as a " qualified retired law enforcement officer." Frawley claimed that he had been " materially disadvantaged" by the commissioner's denial of his application. In his answer to the amended complaint, the commissioner denied that Frawley had retired from the department in good standing and should be deemed a " qualified retired law enforcement officer" within the meaning of 501 Code Mass. Regs. ...


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