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State Board of Retirement v. O'Hare

Appeals Court of Massachusetts, Suffolk

December 15, 2017

STATE BOARD OF RETIREMENT
v.
BRIAN O'HARE & another [1]

          Heard: September 8, 2017.

         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.

          Present: Rubin, Neyman, & Henry, JJ.

          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 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 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 [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 ...


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