439 Mass. 580 | Mass. | 2003
Lead Opinion
On November 5, 1997, Wilbur Brittle, a suspended Boston police officer, pleaded guilty to a six-count Federal indictment, the culmination of a law enforcement investigation into his international heroin smuggling activities. Brittle now seeks back pay for the forty-month period preceding his plea of guilty during which he was suspended without
1. Background. We summarize the undisputed material facts, paying particular attention to those recited by the Federal prosecutor at Brittle’s plea colloquy.
In May, 1994, Brittle resumed his illegal activities as a courier for Cotton, traveling to Asia to acquire large amounts of heroin.
While the Commonwealth’s indictments against Brittle were pending, Cotton and Brittle’s illegal drug activities were under investigation by Federal law enforcement officials. A Federal grand jury were convened, and on June 13, 1996, Brittle and thirteen others were indicted by the grand jury on numerous drug-related charges involving conspiracy, importation of heroin, and possession of heroin with intent to distribute. At the time of the 1996 Federal indictment, Brittle remained suspended from his duties as a Boston police officer, and the Commonwealth’s indictment against Brittle for threatening to commit an assault and battery on Cotton was still pending.
On November 19, 1996, while the Federal case was proceeding toward trial, the Commonwealth sought and obtained an order of nolle prosequi of its pending indictments against Brittle. The assistant district attorney explained the reason for seeking the nolle prosequi: the State and Federal charges were “directly related,” Cotton was to be called as a witness in the Federal trial against Brittle, and if the State charge proceeded to trial as scheduled, Cotton would be required to testify about “the same issues.”
On November 5, 1997, Brittle pleaded guilty in the United States District Court for the District of Massachusetts to all of the Federal charges. At Brittle’s plea colloquy, the assistant United States attorney recited Brittle’s activities in the Cotton drug-smuggling conspiracy, recited Cotton’s activities, and explicitly referred to the earlier State charges triggered by the falling out between Brittle and Cotton over the payment for heroin. Immediately after his change of plea, Brittle submitted his resignation to the Boston police department.
In April, 1998, Brittle filed this action, seeking compensation pursuant to G. L. c. 268A, § 25.* ****
2. Discussion. Brittle contends that he is entitled to back pay for the entire period of his suspension because the State indictments, which initially triggered his suspension, terminated “without a finding or verdict of guilty.” G. L. c. 268A, § 25. Although Brittle did plead guilty to the Federal indictments, he asserts that those indictments are “not relevant” to whether he is entitled to lost compensation while he was suspended. The relief he seeks is neither compelled by the language of G. L. c. 268A, § 25, nor consistent with the statute’s purpose.
General Laws c. 268A, § 25, provides in pertinent part: “If the criminal proceedings against the [suspended employee] are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension . . . .” By its express terms, the statute contemplates that payment for a period of suspension shall occur if, and only when, the employee is entitled to removal of his suspension. The suspended employee, of course, is entitled to removal of his suspension, only when the “criminal proceedings” against him terminate “without a finding or verdict of guilty on any of the charges on which he was indicted” (emphasis added). Brittle was under indictment throughout the entire forty-month period of his suspension before he resigned. He was never eligible to perform any public duties during that time; he was not entitled to “remov[al]” of his suspension, and he most assuredly was not entitled to reinstatement during that forty-month period.
Brittle in effect asks us to construe the phrase “criminal proceedings” narrowly to encompass only the State court proceedings. There is no reason to do so. A statute should not be “unduly constricted so as to exclude matters fairly within [its] scope.” Tilton v. Haverhill, 311 Mass. 572, 577 (1942), quoting Commonwealth v. Welosky, 276 Mass. 398, 401 (1931), cert, denied, 284 U.S. 684 (1932). Rather, “[i]f the language of the statute is ‘ “fairly susceptible [of] a construction that would lead to a logical and sensible result” we will construe [it] so as “to make [it an] . . . effectual piece[] of legislation in harmony with common sense and sound reason.’ ” Commonwealth v. Williams, 427 Mass. 59, 62 (1998), quoting Commonwealth v. A Juvenile, 16 Mass. App. Ct. 251, 254 (1983). The Legislature surely recognized that there are numerous circumstances, such as here, where an initial indictment may give rise to or be related to other indictments, as the fullness of the criminal conduct of a defendant comes to light.
Our reading of the statute is also consistent with the converse purpose of the statute: to ensure that a suspended public employee is fully compensated if no misconduct by him is established. See Bessette v. Commissioner of Pub. Works, 348 Mass. 605, 608 (1965) (“The statute fully protects the suspended employee upon his vindication . . ,”).
Madden v. Secretary of Pub. Safety, 412 Mass. 1010 (1992),
We need not decide whether we would reach the same result in a case where various indictments brought at different times or by different prosecuting authorities overlap in time but are unrelated. Here, there is an obvious and close relationship between the conduct that gave rise to Brittle’s State indictments
It is of no consequence that the remaining State indictment was not fully detailed at the Federal plea colloquy, or that the Federal indictment was not laid bare in minute detail when the State charge was nol pressed. For it is abundantly clear from the representations of both the district attorney for the Suffolk district and the United States attorney that those two respective offices were proceeding in tandem precisely because the conduct giving rise to the State and Federal indictments was related. Had Cotton been subjected to cross-examination by Brittle’s attorney in the relatively insignificant State case, the Federal indictment against Brittle might well have been compromised. Neither office would have accepted that risk, as any punishment of Brittle resulting from a conviction of international heroin smuggling would be far greater than, and indeed would eclipse, any punishment that Brittle might receive in the State proceedings.
Because of our conclusion, we need not address the city’s argument that Brittle should be equitably estopped from seeking back pay. See, e.g., Yetman v. Cambridge, 7 Mass. App. Ct. 700, 708-709 (1979) (city permitted to raise affirmative defense of loches, “an equitable defense consisting of unreasonable delay in instituting an action which results in some injury or prejudice to the defendant”). We note that the statute is silent as to the proper resolution of a claim by a suspended employee for back pay in circumstances where a city, acting in good faith, does not forthwith remove a suspension, and the employee does not seek reinstatement or back pay. The statute gives no indication that the employer has a duty to monitor the disposition of the “criminal proceedings,” or that the prosecuting authority has any duty to advise the employer of an outcome favorable to the employee. The Legislature could reasonably have assumed that a suspended employee vindicated of every charge would promptly assert his right to removal of the suspension, or to receive compensation for the period of his suspension, or both. See Madden v. Secretary of Pub. Safety, 412 Mass. 1010, 1011 (1992) (suspended employee sought back pay ten days after entry of order of nolle prosequi).
Judgment affirmed.
Alternatively, Brittle seeks back pay for the twenty-three month period from the date he was suspended until the date he was indicted on Federal charges to which he ultimately pleaded guilty. But see note 9, infra.
As the judge in the Superior Court noted, Brittle “was given the opportunity at the change of plea hearing in the Federal case to dispute the Government’s synopsis of its evidence. . . . Aside from challenging several dates and objecting to evidence of criminal activity from 1986 to 1991, [Brittle] did not dispute the other allegations . . . .”
Before 1992, Brittle and Cotton had had a long-standing personal relationship, and Brittle is the father of two of Cotton’s children. As early as 1986, Brittle had been aware of Cotton’s illegal drug smuggling activities and had shared in its proceeds, but it appears that it was not until 1992 that Brittle became an active participant in Cotton’s operation.
It appears that, by then, Brittle and Cotton were no longer in a personal relationship, and Cotton was pregnant with the child of another man. During that period, Brittle “began to drink heavily.”
Nothing in the record suggests that the Commonwealth knew at that time that Cotton’s allegations against Brittle concerned a payment dispute over their joint drug operation.
Earlier, on May 19, 1995, the indictment against Brittle on the charge of stalking had been dismissed, perhaps in response to Commonwealth v. Kwiatkowski, 418 Mass. 543, 546-547 (1994), holding that the stalking statute was unconstitutionally vague in certain respects. The Commonwealth continued to press its indictment against Brittle for threatening to commit an assault and battery.
Specifically, the assistant district attorney informed the judge: “1. The defendant, Wilbur Brittle, is presently being prosecuted in the Federal District Court; 2. The complainant will be called to testify for the government against the defendant Wilbur Brittle; 3. The indictments [in the] Federal District Court
General Laws c. 268A, § 25, provides, in pertinent part: “An officer or employee of a county, city, town or district. . . may, during any period such officer or employee is under indictment for misconduct in such office or employment ... be suspended by the appointing authority .... If the criminal proceedings against the person suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension, and the time of his suspension shall count in determining sick leave, vacation, seniority and other rights, and shall be counted as creditable service for purposes of retirement.”
The Appeals Court ruled that Brittle was entitled to compensation from July 13, 1994 until June 13, 1996, when he was indicted in Federal court (twenty-three months), and not until November 5, 1997, when he pleaded guilty (forty months), because Brittle had made no “argument concerning the appropriate terminal date for the back pay.” Brittle v. Boston, 54 Mass. App. Ct. 820, 824 (2002).
The statute does not provide that removal of suspension is “automatic,” nor that the payment of back pay is “automatic,” post at 590, if and when any one of a number of criminal indictments is terminated without a finding or verdict of guilt. Such a reading finds no support in the statute. In contrast, notice properly given “shall automatically suspend the authority of [the
Contrary to the dissent, post at 592 n.3, the legislative history reveals that the Legislature has successively expanded the scope of G. L. c. 30, § 59, which is “identical in its operative language” to G. L. c. 268A, § 25. Springfield v. Director of the Div. of Employment Sec., 398 Mass. 786, 788 (1986). Compare 1962 House Doc. No. 3387 (original bill providing that suspension would not result in loss of compensation or other benefits) with 1962 Senate Doc. No. 863 (amended bill, enacted as St. 1962, c. 798, providing that suspension would result in loss of compensation and accrual of other benefits). See 1963 House Doc. 3498, enacted as St. 1963, c. 829 (granting replacement employees authority to perform tasks of suspended employees); 1964 House Doc. No. 3565 (Governor submitting amendment to G. L. c. 30, § 59, as amended through St. 1964, c. 528, “to broad[en] the authority to suspend certain officers or employees for misconduct in office”). In enacting the various amendments, the Legislature has not once cut back the scope of either statute.
Such circumstances may occur when, for instance, a defendant is reindicted after a successful motion, see Commonwealth v. McCarthy, 385 Mass. 160 (1982), or when the victim of an assault with intent to murder dies and the defendant is reindicted on murder charges.
Our holding neither “ignores the plain language and intent” of the statute, nor “rewrit[es] it,” nor engages in “judicial legislation” to reach a “pleasing” result. Post at 590. Eleven judges have considered Brittle’s claim for back pay, of whom six have concluded that he is not entitled to recovery under the terms of G. L. c. 268A, § 25, while five have concluded that he is entitled to compensation. That reasonable minds disagree on a matter of statutory interpretation does not warrant the charge that judges seek to subvert the Legislature’s policy decision with their own. Post at 591.
We do not interpret the “restrictive language of the statute” more “broadly” than the Legislature intended. Post at 594. The Legislature limited suspension without pay to public employees who are indicted for misconduct committed while in office, presumably for at least two reasons: (1) before an
The Secretary of Public Safety made no claim that Madden’s Federal charges were related in any manner to the earlier State indictments. See Madden v. Secretary of Pub. Safety, 412 Mass. 1010, 1011 (1992). We have reviewed the briefs in that case and are confident that a claim of relatedness could not have been sustained.
Brittle was sentenced by the United States District Court judge to ten years in prison, with five years of supervised release to follow. Had he been convicted of the State charge of threatening to commit an assault and battery, the sentence could have been a fine of not more than $100 or a prison sentence of not more than six months. See G. L. c. 275, §§ 2, 4.
The dissent posits that the Commonwealth could have “delay[ed] its proceeding until after the disposition of the Federal charges,” post at 596, thereby recognizing that suspension of Brittle until the conclusion of the Federal prosecution was fully warranted. We see nothing in the statute that requires a prosecutor to manipulate proceedings so as to delay a trial, or to require the Commonwealth to expend unnecessary resources to bring to trial a defendant already convicted of far more serious crimes arising from his related conduct. In short, the solution preferred by the dissent elevates form over substance.
Dissenting Opinion
(dissenting, with whom Greaney and Spina, JJ.,
The final paragraph of G. L. c. 268A, § 25, provides, in relevant part:
“If the criminal proceedings against the person[] suspended are terminated without a finding or verdict of guilty on any of the charges on which he was indicted, his suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the period of his suspension . . . .”
This language unambiguously renders both reinstatement and back pay contingent on the fate of the charges that gave rise to the suspension, and automatic if those charges are terminated without a finding or verdict of guilt. The court has, however, rewritten the statute (and, presumably, the cognate G. L. c. 30, § 59) to provide that back pay shall be contingent, not on the fate of the charges giving rise to the suspension, but on the removal of the employee’s suspension and his application for reinstatement to his former position. The statute has thus been revised by the court to defeat its automatic and limited application.
In addition, the court has greatly broadened the scope of the statute by infusing it with a “relatedness” consideration. According to the court, the employee is entitled to removal of his suspension (and, therefore, to his back pay) only if the criminal proceedings against him, including those “closely related” to the proceedings under the indictment that gave rise to the suspension, are terminated without a finding or verdict of guilty. “Relatedness” now pervades the statute despite the fact that it is a consideration foreign to the text. “We will not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design.” Commonwealth v. McLeod, 437 Mass. 286, 294 (2002), and cases cited. This court’s authority to interpret and apply statutes “is limited by its constitutional role as a judicial, rather than a legislative body. . . . We cannot interpret a statute so as to avoid injustice or hardship if its language is clear and unambiguous and requires a different construction.” Pielech v. Massasoit Greyhound, Inc., 423 Mass.
In addition to legislating judicially to create a “relatedness” feature not present in the statute, the court never pauses to define what “related” means. The omission of this definition is glaring, for often charges against the same person are “related” in some sense. The court declares, ante at 588, that charges are “closely related” when the course of criminal conduct on which the indictments are based is “related,” or when there is an “obvious and close relationship” between the conduct giving rise to the separate indictments, or when it is “abundantly clear” that the separate indictments are related. Ante at 587, 588. Thus, the court essentially states that “related” means “related,” thereby providing little guidance to public employers and lower courts.
Regardless whether the State and Federal charges against Brittle were “related” in some way, they were not related for purposes of this statute. “Offenses are not related merely because they were committed by the same defendant, even on the same day.” Brittle v. Boston, 54 Mass. App. Ct. 820, 823 (2002). It is only an indulgent reading of the record that permits the court to conclude that the State charges against Brittle were sought by Cotton “[i]n response” to the drug-related threats, ante at 582, that Brittle’s illegal conduct “came to light in full measure,” ante at 588, because of the investigation surrounding the State indictments, and that Federal and State authorities were “proceeding in tandem” or “cooperat[ing] to bring him to justice.” Ante at 588, 589.
We recognized, correctly, in the Madden case that it is our duty to apply the unambiguous statute as written: “Although the [city’s] arguments are persuasive as social policy, these arguments are properly addressed to the Legislature.” Id. at 1011. In the decade since this court issued the Madden decision, the Legislature could have, but did not, express disagreement with our reading of the statute by amending it. The court should not ignore its silence.
The restrictive language of the statute demonstrates that the Legislature purposely drafted a statute with a “narrow focus,” id., and did not intend to act as broadly as the court would (were it to sit as a law-making body). Initially, only an indictment (and not a complaint) potentially invokes the statute. Thus, by its terms the statute is inapplicable to an employee prosecuted in the District Court for serious offenses such as motor vehicle homicide, indecent assault and battery on a child under fourteen years of age, intimidating a witness or juror, driving while under the influence of alcohol, assault with intent to murder, distribution of cocaine within a school zone, or carjacking. See G. L. c. 218, § 26 (criminal jurisdiction of District Court). An employee-defendant may choose to waive indictment and be prosecuted in the Superior Court by complaint, see Mass. R. Crim. R 3 (a), 378 Mass. 847 (1979); again, the statute would not apply. Or, an employee originally prosecuted by complaint (to be superseded by indictment) may enter into a plea bargain pursuant to which the offense is reduced to a lesser one in the District Court; the statute would not apply here, either.
Moreover, the statute requires “misconduct in . . . office.” Except for cases involving teachers and police officers, this phrase has been interpreted generally to exclude an employee’s off-duty conduct. See Attorney Gen. v. McHatton, 428 Mass. 790, 792-793 (1999); Leavitt v. Lynn, 55 Mass. App. Ct. 12, 13-15 (2002); Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 349-351 (1983); Dupree v. School Comm. of Boston, 15 Mass. App. Ct. 535, 537-539 (1983). Thus, the statute has been interpreted not to apply to a chief deputy sheriff indicted for bribery, Tobin v. Sheriff of Suffolk County, 377 Mass. 212, 213 & n.3 (1979), or to a school system human resource manager indicted for larceny over $250 and removal or concealment of a motor vehicle to defraud an insurer, Leavitt v. Lynn, supra. The statute is also inapplicable to elected, as opposed to appointed, officials. McGonigle v. The Governor, 418 Mass. 147, 149-150 (1994). In addition, the statute only states that the employee “may” be suspended, rather than “shall.” It is therefore permissive, not mandatory.
The reason for an “unpalatable” result, Brittle v. Boston, 54 Mass. App. Ct. 820, 822 n.2 (2002), is the design of the statute, not its application by a court. It is helpful to recall what this court stated when interpreting G. L. c. 32, § 15 (3A), which
I may consider this result “unpalatable,” Brittle v. Boston, supra. Nevertheless, it is this court’s obligation to apply the statute as written. For these reasons, I would reverse the judgment of the Superior Court and enter judgment for Brittle in the amount of his regular compensation from July 13, 1994, to November 5, 1997. Should the Legislature decide that the statute is inadequate, it is its role to amend it. See Leopoldstadt, Inc. v. Commissioner of the Div. of Health Care Fin. & Policy, 436 Mass. 80, 92 (2002).
Contrary to the court’s assertion, ante at 586 n.13, the court’s opinion directly contradicts the statutory language. The indictment triggers the right to suspend the employee, and the continuation of the right to maintain the suspension is dependent on the “charges found in the indictments that gave rise to the suspension.” Madden v. Secretary of Pub. Safety, 412 Mass. 1010, 1011 (1992). The court’s decision is contrary to the statute, and can be squared with neither the result nor the reasoning of the Madden case. Although the court asserts that Madden “retains its full precedential value,” ante at 587, it is clear that Madden survives this case only in the sense that Pompeii survived into the Middle Ages.
The fact that weeks passed between the indictments in Madden v. Secretary of Pub. Safety, supra, rather than the indictments overlapping as in the present case, is a distinction without a difference. The operative fact in the Madden case was that the original charges concluded without a verdict or finding of guilty. Those were the charges under which Madden was suspended, and the case is directly on point. The fact that Madden sought reinstatement is also irrelevant. The statute does not impose on the employee the responsibility to seek reinstatement; it is designed to operate automatically.
The court’s characterization of the legislative history, ante at 585 n.ll, is inaccurate. The Legislature has amended the cognate statute, G. L. c. 30, § 59, only twice, both in quick succession after the original 1962 enactment,
In any event, the amendments, the most recent of which was enacted thirty-nine years ago, are of no assistance in resolving the present dispute. It is debatable whether they were, in fact, expansions at all. The court treats as an “expansion” the fact that the original statute differed from the bill that was introduced. Ante at 585 n.ll. Leaving aside the obvious point that this was not the expansion of a statute (which did not yet exist), it was accompanied by a host of extensive safeguards. See note 5, infra. Given the sparse legislative history, caution is warranted in attempting to glean meaning from deleted or changed provisions “during a legislative journey to enactment.” Mercy Hosp. v. Rate Setting Comm’n, 381 Mass. 34, 42 (1980). See Irwin v. Ware, 392 Mass. 745, 773 (1984). In addition, the court selectively quotes from the 1964 amendment. The amendment’s stated purpose was “to enable forthwith the appointing authority to suspend certain officers or employees under indictment for misconduct at any time in public office or employment pending the outcome of such indictment” (emphasis added). St. 1964, c. 528, preamble.
The Legislature has not amended the statute for four decades, despite the existence of numerous instances of public corruption during that period. This is scarcely consistent with the court’s view that the Legislature has “successively expanded” the statute’s scope. Ante at 585 n.ll.
The statute contains specific requirements for the notice of suspension:
“Notice of said suspension shall be given in writing and delivered in hand to said person or his attorney, or sent by registered mail to said person at his residence, his place of business, or the office or place of employment from which he is being suspended. Such notice so given and delivered or sent shall automatically suspend the authority of such person to perform the duties of his office or employment until he is notified in like manner that his suspension is removed. A copy of any such notice together with an affidavit of service shall be filed as follows: in the case of a county, with the clerk of the superior court of the county in which the officer or employee is employed; in the case of a city, with the city clerk; in the case of a town, with the town clerk; in the case of a regional school district, with the secretary of the regional school district; and in the case of all other districts, with the clerk of the district.” G. L. c. 268A, § 25.
General Laws c. 268A, § 25, inserted by St. 1972, c. 257, is nearly identical to G. L. c. 30, § 59, inserted by St. 1962, c. 798. The original bill, 1962 House Doc. No. 3387, provided for suspension of an indicted employee, but did not require loss of pay: “A suspension, under authority of this act, shall be without loss of compensation . . . .” To the extent anything can be gleaned from the sparse legislative history, it is that the original bill was even narrower than the present law, and that loss of compensation was inserted only in the context of the extensive safeguards detailed above.
