September 8, 2017.
action commenced in the Superior Court Department on January
case was heard by Peter M. Lauriat, J., on motions for
judgment on the pleadings.
R. Marks, Assistant Attorney General, for State Board of
B. Tennen for Brian O'Hare.
Present: Rubin, Neyman, & Henry, JJ.
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 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). 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) .
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
February, 2006, O'Hare was arrested by the FBI after
arriving at a prearranged meeting place to meet the youth for
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) .
O'Hare's conviction, the board held a hearing and
denied O'Hare a retirement allowance under G. L. c. 32,
§ 15(4) .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.
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
[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 ...