67 Mass. App. Ct. 612 | Mass. App. Ct. | 2006
The first question we must decide is whether the retirement board of Quincy (board) properly required the plaintiff, Ralph Maher, to forfeit his retirement allowance pursuant to G. L. c. 32, § 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 violation of the laws applicable to his office or position. If the board correctly interpreted G. L. c. 32, § 15(4), the second question we must decide is whether the plaintiff waived his challenge based on the Eighth Amendment to the United States Constitution, that the forfeiture constituted an excessive fine, by failing to raise this constitutional claim before the board.
Background. On December 15, 2001, while the plaintiff was employed as the chief plumbing and gas inspector for the city of Quincy (city), he and another city employee broke into and entered the personnel office at city hall. There, the plaintiff reviewed his personnel file and stole a document or documents from the file. A few weeks later, a new mayor took office. On January 16, 2002, the plaintiff took superannuation retirement. On July 24, 2003, the plaintiff entered pleas of guilty on indictments charging him with violations of G. L. c. 266, § 18 (breaking and entering in the daytime with intent to commit a felony); G. L. c. 266, § 127 (wanton destruction of property, a door to the personnel office); and G. L. c. 266, § 20 (stealing personnel records and various documents). The plaintiff was sentenced to concurrent terms of six months unsupervised probation on each conviction and was ordered to make restitution of $393 and to pay a fine of $500.
After the plaintiff had pleaded guilty to the offenses related to the break-in at city hall, the city initiated proceedings against the plaintiff pursuant to G. L. c. 32, § 15(2) and (4), to determine whether the plaintiff’s convictions “involv[ed] violation of the laws applicable to his office or position” and would therefore require forfeiture of his retirement allowance. The board held a hearing, at which the evidence presented included the defendant’s guilty pleas and the change of plea colloquy
At the hearing before the board, the plaintiff’s counsel argued that unless the board could prove what was taken from the plaintiff’s personnel file, it could not find that the criminal offenses were a violation of the laws applicable to the plaintiff’s office or position. Although it rejected this contention, the board placed the plaintiff under oath and asked him to clarify for the board what was taken from his file. He refused, and the board found it reasonable to infer from his refusal to testify that his testimony would have been against his interest.
The board concluded that there was “clearly ... a link
Thereafter the plaintiff sought judicial review in the District Court pursuant to G. L. c. 32, § 16(3), where, after hearing, a District Court judge found the board’s decision justified, including the forfeiture of the plaintiff’s pension, and dismissed the petition.*
Discussion. As provided in G. L. c. 32, § 15(4), as inserted by St. 1987, c. 697, § 47, “[i]n no event shall any member [of the 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 . . . .” Upon such conviction, § 15(4) further provides that the member “shall receive, unless otherwise prohibited by law, a return of his accumulated total [contributions to the retirement system]; provided, however, that the rate of regular interest for the purpose of calculating accumulated total [contributions] shall be zero.”
The Supreme Judicial Court has stated that “[t]he substantive touchstone intended by the General Court is criminal activity connected with the office or position.” Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 4 (1996). See State Bd. of Retirement v. Bulger, 446 Mass. 169, 174-175 (2006). This does not mean that the crime itself must reference public employment or the employee’s particular position or responsibilities. Gaffney v. Contributory Retirement Appeal Bd., supra at 3-4. Rather, it means that the violations must be “related to the member’s official capacity.” Id. at 5. We therefore “[l]oak[] to the facts of each case for a direct link between the criminal offense and the member’s office or position.” Ibid.
There are multiple, direct links between the criminal offenses here and the plaintiff’s office or position. He broke and entered into the city’s personnel office. He stole documents from his personnel file. His object was to remove documents criticizing his performance as the chief inspector of gas and plumbing to improve his chances of being reappointed by a recently-elected
We likewise discern no merit in the plaintiff’s argument that board member Francis McCauley was required to recuse himself. The plaintiff, without supporting authority, contends that McCauley should have recused himself. McCauley had previously served as mayor of the city and during such term the plaintiff was fired and then eventually reinstated by the civil service commission. The plaintiff contends that this raises at least the appearance of bias. In declining to recuse himself, Mc-Cauley “absolutely” denied any actual bias and stated that the firing was done not by him but by the plaintiff’s manager. We also emphasize that the board consisted of five persons. In these circumstances, we conclude that the alleged “bias is itself speculative, and the prospect of any such bias influencing the decision making of other board members is implausible.” Varga v. Board of Registration of Chiropractors, 411 Mass. 302, 307 (1991).
Finally, we address the plaintiff’s Eighth Amendment claim. The plaintiff contends that the automatic forfeiture provision of G. L. c. 32, § 15(4), as applied to him in these circumstances, would constitute an “excessive fine” as prohibited by the Eighth
The plaintiff argues, however, that the District and Superior Court judges erred in considering the record closed and the issue waived because the board had no jurisdiction over constitutional questions; therefore, the plaintiff was not required to bring his constitutional challenge to the board first. Furthermore, the plaintiff submitted an affidavit in the District Court that provided a factual basis for determining his monthly retirement allowance prior to the forfeiture ($2,866.67) and the monthly health care premium he was required to pay for himself and his wife prior to the forfeiture ($600) and afterwards ($1,403.08), thereby allowing calculation of the fine. In various memoranda submitted to the District Court, he also presented legal arguments for why the forfeiture constituted an excessive fine.
Our analysis of the Eighth Amendment claim begins with a recognition that there are exceptions to exhaustion requirements for challenges to the constitutionality of administrative statutes, particularly those that present pure questions of constitutional law or do not require expert fact finding by administrative agencies. See, e.g., Gurry v. Board of Pub. Accountancy, 394 Mass. 118, 126 (1985) (“Except for jurisdictional claims based upon constitutional challenges to an agency’s enabling legislation, litigants involved in adjudicatory proceedings should raise all claims before the agency, including those which are constitutionally based”); Hartford Acc. & Indent. Co. v. Commissioner of Ins., 407 Mass. 23, 28-29 (1990) (“as applied”
The board clearly had no jurisdiction to decide the constitutionality of the forfeiture provision as applied to the plaintiff. See ibid.', 2 Pierce, Administrative Law § 15.5, at 1004 (4th ed. 2002) (“agencies lack the power to hold statutory provisions unconstitutional”). It is for the courts, not administrative agencies, to decide the constitutionality of statutes. Moreover, the determination of the constitutionality of a statute as applied can be one of the most difficult and sensitive tasks performed by the judiciary. This is particularly true here given the novelty of Eighth Amendment excessive fine claims,
Although an agency cannot decide an ultimate constitutional issue, the question remains whether such an issue must nonetheless be brought before it to inform the agency’s resolution of the statutory and regulatory questions it must consider and to draw on its specialized expertise for necessary fact finding. In the instant case, for example, the board, had it been so informed, would have been made sensitive, if it were not already, to the
We also conclude that the fact finding required to resolve the Eighth Amendment issue does not involve specialized expertise. In determining whether a pension forfeiture is an excessive fine, the Supreme Judicial Court has calculated the lost benefits and the ill-gotten gains to determine whether the punishment is “grossly disproportional. ”
In sum, the resolution of the Eighth Amendment as applied challenge to the forfeiture provision in the statute is ultimately and undeniably a core judicial function. It is also outside the jurisdiction and special expertise of the board and separate and apart from the issues the board needs to resolve. Consequently, the failure to raise the issue before the administrative agency cannot result in the closure of the record and the waiver of the constitutional claim. A remand of the Eighth Amendment claim is therefore required.
Conclusion. We conclude that the plaintiff’s convictions were for offenses involving violation of the laws applicable to his office or position, and that there was no error in the refusal of board member McCauley to recuse himself from the hearing. However, it was error to deem the Eighth Amendment claim waived. Accordingly, the judgment of the Superior Court is vacated, and the case is remanded to the District Court for consideration of the plaintiff’s Eighth Amendment claim.
So ordered.
His counsel also confirmed that the plaintiff took a portion of his personnel file. Counsel further elaborated that the plaintiff went to city hall with the intention of looking at his personnel file “and if . . . certain things were in there that he believed were inappropriate, taking them.” Although not referenced in the board’s decision, counsel at the plea hearing stated further that the plaintiff was looking for letters prepared by the plaintiff’s superior that were highly critical of the plaintiff and accused him of numerous improprieties.
The plaintiff also contended that the board could have determined what was in his personnel file by contacting the United States Attorney’s office. Prior to December 15, 2001, the United States Attorney’s office had subpoenaed the plaintiff’s personnel file. The board requested the city solicitor to contact the United States Attorney’s office, but he reported back that he was “unable to obtain a complete copy of the personnel file as it existed prior to the December 15, 2001 break in.”
The board additionally found that the plaintiff sought to cover up the
The judge did, however, exclude all consideration of the testimony regarding the locksmith, who was not subject to cross-examination. We do the same.
General Laws c. 249, § 4, as amended by St. 1973, c. 1114, § 289, provides, in pertinent part, that “[a] civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court . . . .” See Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 134 (1997) (a case following the same procedural path as this one, from the retirement board to the District Court pursuant to G. L. c. 32, § 16[3][a], to the Superior Court pursuant to G. L. c. 249, § 4).
The plaintiff raised the same issues with similar briefing in both the District and Superior Courts. With the exception of the Eighth Amendment argument, these issues were also raised before the board.
We note that the plaintiff was entitled to view the contents of his personnel file pursuant to G. L. c. 149, § 52C, and to submit a written statement, for inclusion in his personnel file, explaining his disagreement with anything contained in the file.
As there is ample evidence to support the board’s finding in this regard, we consider the plaintiff’s objections to the admission of other evidence to be irrelevant. Furthermore, the plaintiff’s argument in this regard, presented in an unsupported paragraph, and sometimes referring to exhibit 7 and other times referring to exhibit 8, does not rise to the level of appropriate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
We note, however, that the plaintiff did not expressly plead the Eighth Amendment claim in the complaint he filed in District Court.
This is not a case where the constitutional claims have been brought prematurely or unnecessarily. “The Court will not pass upon a constitutional question ... if there is also present some other ground upon which the case may be disposed of.” Ashwander v. Tennessee Valley Authy., 297 U.S. 288, 347 (1936). Here all other issues were presented to and decided by the board, leaving only the constitutionality of the statute as applied to the plaintiff outstanding.
In 1998, in United States v. Bajakajian, 524 U.S. 321, 327 (1998), the United States Supreme Court stated, “This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause [of the Eighth Amendment].”
The Supreme Judicial Court has done so after assuming but not deciding that a forfeiture was a fine and punitive. See MacLean v. State Bd. of Retirement, 432 Mass. at 346. Guidance on these threshold issues has been provided in United States v. Bajakajian, 524 U.S. at 327, where the United States Supreme Court concluded that “the word ‘fine’ was understood to mean payment to a sovereign as punishment for some offense.” The Court also concluded that the forfeiture of currency ordered for violation of a statute prohibiting the currency’s removal from the United States, in violation of a reporting requirement, constituted punishment. Id. at 328.
To do so, the Supreme Judicial Court has stated that “[i]n any forfeiture case it would be helpful for the judge to make a finding of the total value of the forfeiture involved.” MacLean v. State Bd. of Retirement, 432 Mass. at 348 n.11.
The plaintiff submitted an affidavit and life expectancy table to calculate the value of the lost pension benefits. The record does not' contain the amount of the returned contributions.
We note further that G. L. c. 32, § 16(3)(a), as amended by St. 1982, c. 630, § 21, provides that the District Court shall “review such action and decision, hear any and all evidence and determine whether such action was justified” (emphasis added). Although this court has previously noted that the scope of review provided by this language is not clear and that “[t]he reference to ‘evidence’ in G. L. c. 32, § 16(3), may refer only to evidence of what occurred in the proceedings before the board,” this interpretative statement was not made in the context of a constitutional challenge. MacDonald v. Commissioner of the Metropolitan Dist. Commn., 33 Mass. App. Ct. 455, 462 n.8 (1992). To decide the Eighth Amendment challenge here, the District Court is entitled to “hear any and all evidence” necessary to make the required factual findings.