At issue in this case is whether, pursuant to G. L. c. 32, § 15 (4), John P. Bulger’s convictions of two counts of perjury and two counts of obstruction of justice in Federal District Court involved “violation[s] of the laws applicable to his office or position” as clerk-magistrate of the Boston Juvenile Court such that he forfeited his entitlement to a retirement allowance as a member of the State employees’ retirement system. For the reasons that follow, we conclude that Bulger did violate the laws applicable to his office and that, consequently, forfeiture of his pension was statutorily required.
Bulger began his employment with the Commonwealth in 1964, when he was hired by the Metropolitan District
Effective April 27, 2001, Bulger was granted a superannuation retirement from his position as clerk-magistrate. See G. L. c. 32, § 5. He was credited with thirty-two years and nine months of service with the State, and the Commonwealth began to pay Bulger a monthly pension of $5,326.16.
“In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retire*171 ment allowance under the provisions of [§§ 1-28], inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member” (emphasis added).
On November 8, 2001, Bulger was indicted in the United States District Court for the District of Massachusetts on two counts of pequry, in violation of 18 U.S.C. § 1623 (2000), and two counts of obstruction of justice, in violation of 18 U.S.C. § 1503 (2000). A grand jury had been conducting an investigation into alleged money laundering, racketeering, and other criminal offenses committed by, among others, Bulger’s brother, James Bulger. It was material to this investigation that the grand jury determine “the nature, location, source, form, and ownership of any properties, accounts, safe deposit boxes, cash, and other assets possessed, controlled, transferred and transacted” by James Bulger. The indictment alleged that, on November 26, 1996, Bulger falsely testified, under oath, that he had no knowledge of any safe deposit box belonging to or controlled by James Bulger. According to the indictment, the purpose and effect of such testimony was to obstruct and impede the grand jury investigation.
A grand jury also had been conducting an investigation into persons involved in the commission of criminal offenses related to harboring and concealing James Bulger, who had been a fugitive from Federal criminal charges in Massachusetts since January, 1995. The November 8, 2001, indictment alleged that, on January 22, 1998, Bulger falsely testified, under oath, that, since January, 1995, he had received no direct or indirect communications from James Bulger, and that he was unaware of others who had received such communications. According to the indictment, the purpose and effect of this testimony was, once again, to obstruct and impede the grand jury investigation.
On April 10, 2003, Bulger pleaded guilty to the two counts of perjury and two counts of obstruction of justice set forth in the November 8, 2001, indictment. He was sentenced to serve a prison term of six months and three years of supervised release (with the first six months of the latter spent in home confinement), and to pay a fine of $3,000 and a mandatory assessment of $400.
On September 22, 2003, following a hearing at which Bulger was represented by counsel, a hearing officer recommended that, in light of Bulger’s convictions, the board rescind his retirement allowance and commence collection efforts to recover the $69,874.28 previously paid by the board to Bulger as the part of his retirement allowance that exceeded the contributions he had made to the retirement system. The board adopted the hearing officer’s recommendations at its meeting on September 25, 2003. Bulger then filed another petition in the Boston Municipal Court seeking judicial review of the board’s final determination. In accordance with G. L. c. 30A, § 14, the board filed a motion for summary judgment, limited to the board’s administrative action against Bulger pursuant to G. L. c. 32, § 15 (4).
On September 29, 2004, a judge in the Boston Municipal Court denied the board’s motion for summary judgment, reversed the board’s determination permanently to rescind Bulger’s retirement allowance, and ordered the board to reinstate Bulger’s pension, retroactive to April 11, 2003. The judge concluded that while Bulger’s convictions of perjury and obstruction of justice were serious, they did not constitute “violation[s] of the laws applicable to his office or position,” within the purview of G. L. c. 32, § 15 (4), where “they were unrelated to Bulger’s position as a Clerk Magistrate and where the facts and circumstances that gave rise to the convictions did not involve the administration of his duties and responsibilities as an appointed government official.” The board filed a complaint seeking review in the nature of certiorari, pursuant to
General Laws c. 249, § 4, provides for limited judicial review in the nature of certiorari to correct errors of law in administrative proceedings where judicial review is otherwise unavailable. See Sheriff of Plymouth County v. Plymouth County Personnel Bd.,
The thrust of the board’s argument is that Bulger must forfeit his pension, pursuant to G. L. c. 32, § 15 (4), because his convictions of perjury and obstruction of justice constituted “violation[s] of the laws applicable to his office,” namely the Code of Professional Responsibility for Clerks of the Courts (the code), S.J.C. Rule 3:12, as amended,
Our analysis of G. L. c. 32, § 15 (4), is guided by the familiar principle that “a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Hanlon v. Rollins,
Subsection (4) of G. L. c. 32, § 15, was inserted by St. 1987, c. 697, § 47, and, pursuant to § 135, was made applicable only to criminal offenses committed on or after its effective date, January 12, 1988.
The scope of G. L. c. 32, § 15 (4), was enunciated in Gaffney v. Contributory Retirement Appeal Bd., supra at 4-5, where we stated that “[t]he substantive touchstone intended by the General Court is criminal activity connected with the office or position. . . . [T]he General Court did not intend pension forfeiture to follow as a sequelae of any and all criminal convictions. Only those violations related to the member’s official capacity were targeted. Looking to the facts of each case for a direct link between the criminal offense and the member’s office or position best effectuates the legislative intent of § 15 (4).”
With these general principles in mind, we consider what laws are applicable to the office or position of clerk-magistrate and, then, whether Bulger violated those laws. We begin with an overview of the office of clerk-magistrate.
The position of clerk-magistrate is one created and defined by statute. See G. L. c. 218, §§ 8, 33, 35A, 58; G. L. c. 221, §§ 62B, 62C. See also Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep’t,
“[T]he responsibilities of a clerk-magistrate, while largely ministerial, are inextricably related and essential to the effective functioning of the courts in this Commonwealth. ” Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep’t, supra at 359. See First Justice of the Bristol Div. of the Juvenile Court Dep’t v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep’t, supra at 398-399. The function of every court “is to ensure the integrity of the judicial system, which must not only be beyond suspicion but must appear to be so. The duties of a clerk of a court are performed, for the most part, under public scrutiny. He is a conspicuous figure in the court room. He is seated prominently near the judge, where he is in frequent consultation with him as well as with various lawyers. He administers oaths to witnesses. . . . [I]t would be incongruous to hold out as clerk one who has not conformed to the standards essential to every court.” Massachusetts Bar Ass’n v. Cronin, supra at 326.
The “laws” applicable to the office or position of clerk-magistrate include the code because it establishes the very
The board asserts that, in order to make this determination, we should consider whether Bulger’s criminal convictions, had they occurred when he still was employed as a clerk-magistrate, would have resulted in his removal from office.
Statutory authority for removal of a clerk-magistrate is set forth in G. L. c. 211, § 4. “A majority of the Justices, upon a summary hearing or otherwise, may remove a clerk . . . upon a complaint ‘if sufficient cause is shown therefor and it appears that the public good so requires.’ ” Matter of Dugan,
As enunciated by G. L. c. 211, § 4, and by our case law, the standard for removing a clerk-magistrate from office, where required by the “public good,” is broad. In contrast, the standard for pension forfeiture based on dereliction of duty is more narrow and specific. A clerk-magistrate’s pension is forfeited for misappropriation of governmental funds or property, G. L. c. 32, § 15 (1) and (3), after a final conviction of certain offenses set forth in G. L. c. 32, § 15 (3A), or after a final conviction of a criminal offense involving “violation of the laws applicable to his office or position,” G. L. c. 32, § 15 (4). See Gaffney v. Contributory Retirement Appeal Bd.,
At the heart of a clerk-magistrate’s role is the unwavering obligation to tell the truth, to ensure that others do the same through the giving of oaths to complainants, and to promote the administration of justice. When Bulger committed the crimes of pequry and obstruction of justice, he violated the fundamental tenets of the code and of his oath of office, notwithstanding his contention that such misconduct occurred in the context of what was arguably a personal matter. We recognized in Gaffney v.
This case is to be remanded to the county court for entry of a judgment reversing the judgment of the Boston Municipal Court.
So ordered.
Notes
Since 1978, clerks of Juvenile Court “shall hereafter also have the title of magistrate for their particular department, or division as the case may be, of the trial court.” G. L. c. 221, § 62B. “Magistrates herein provided shall continue to have and exercise all the powers, duties and responsibilities of clerks and registers and shall also have those provided for in [§ 62C].” Id.
Bulger requested that his pension be paid in accordance with “Option A,” as set forth in G. L. c. 32, § 12 (2), whereby a member receives a Ml retirement allowance consisting of a regular life annuity, a pension, and an additional life annuity. All benefits cease on the member’s death, except as otherwise provided by the option elected. See G. L. c. 32, § 12 (2).
Bulger’s petition for judicial review of the board’s final determination raised both statutory and constitutional claims. Because the judge below reversed the board’s decision permanently to rescind Bulger’s retirement allowance and ordered reinstatement of his pension, the judge did not reach Bulger’s claim that the forfeiture of his pension benefits constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. Citing MacLean v. State Bd. of Retirement,
The board has never suggested that Bulger misappropriated funds or property from any government unit in which he was employed prior to his retirement. Therefore, G. L. c. 32, § 15 (1) and (3), are not implicated in this matter. Similarly, because the criminal proceedings against Bulger arose under Federal law, the provisions of G. L. c. 32, § 15 (3A), setting forth the pension consequences of convictions of certain violations of Massachusetts law, namely G. L. c. 268A, § 2 (corruption to influence official acts), and G. L. c. 265, § 25 (extortion in relation to police or licensing duties), are not applicable. See Collatos v. Boston Retirement Bd.,
Canon 1 of S.J.C. Rule 3:12, as appearing in
There is no dispute that at the time Bulger committed the crimes of perjury and obstruction of justice, in November, 1996, and January, 1998, he was still employed as a clerk-magistrate.