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Essex Regional Retirement Board v. Swallow

Supreme Judicial Court of Massachusetts, Essex

January 18, 2019

ESSEX REGIONAL RETIREMENT BOARD
v.
JOHN SWALLOW & others.[1] STATE BOARD OF RETIREMENT
v.
BRIAN O'HARE & others.

          Heard: October 1, 2018.

          Essex, Suffolk

         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.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

         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.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Thomas C. Fallon for John Swallow.

          Eric B. Tennen for Brian O'Hare.

          Michael Sacco for Essex Regional Retirement Board.

          David R. Marks, Assistant Attorney General, for State Board of Retirement.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

          CYPHER, J.

         These two cases present closely related questions concerning the scope of G. L. c. 32, § 15 (4) (§ 15 [4]), which provides that no member of a public employee retirement system shall be entitled to a retirement allowance after conviction of a criminal offense involving a violation of the laws applicable to his or her office or position.[3]

         John Swallow was a police sergeant for the town of Manchester-by-the-Sea on administrative leave when he was charged with several crimes related to the discharge of his personal firearm, charges to which he admitted to sufficient facts to convict. Brian O'Hare was a police sergeant for the State police when he was charged with the Federal crime of using the Internet to entice a person under eighteen years of age to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty.

         In these cases, there are neither factual connections between the criminal activity and the officers' respective positions nor apparent violations of any laws expressly applicable to their positions. Notwithstanding, the Essex Regional Retirement Board (Essex board) and the State Board of Retirement (State board) each concluded that the officers' respective convictions violated the fundamental tenets of their positions as trusted law enforcement officials and denied the officers a retirement allowance under § 15 (4) as a result.

         We conclude that, while the officers' conduct was entirely reprehensible, in view of the narrow interpretation that we have given to § 15 (4), requiring the forfeiture of their pension allowances was in error. Consequently, we affirm the decisions of the Superior Court judges allowing the officers' respective motions for judgment on the pleadings and vacating the boards' decisions otherwise.

         Background.

         The facts are ...


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