Frawley v. Police Commissioner of Cambridge

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SJC-11903

JOSEPH F. FRAWLEY, JR. vs. POLICE COMMISSIONER OF CAMBRIDGE.

Middlesex. November 5, 2015. - March 4, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Lenk,

& Hines, JJ.

Firearms. Police, Firearms, Retirement. Public Employment,

Police. Declaratory Relief. Practice, Civil, Summary

judgment, Injunctive relief, Relief in the nature of

certiorari.

Civil action commenced in the Superior Court Department on

November 13, 2012.

The case was heard by Douglas H. Wilkins, J., on motions

for summary judgment.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Samuel A. Aylesworth, Assistant City Solicitor, for the

defendant.

James F. Lamond (Dennis M. Coyne with him) for the

plaintiff.

SPINA, J. When Joseph F. Frawley, Jr., retired on March 4,

2004, from his position as a sergeant with the Cambridge police

2

department (department), the police commissioner for the city of

Cambridge (city) issued him a "retired officer identification

card" (ID card) that had no expiration date. On December 22,

2011, Frawley applied for the issuance of a replacement ID card

because the one in his possession had broken. The successor

police commissioner (commissioner) denied the application,

stating that Frawley "ha[d] not met the standard set by the

Department." On November 28, 2012, Frawley filed an amended

complaint for declaratory and injunctive relief in the Superior

Court. He sought a declaration that the commissioner had

breached his duty under 501 Code Mass. Regs. §§ 13.00 (2008)

(regulations), which set forth the standards for identification

cards for retired law enforcement officers, by refusing to issue

Frawley a replacement ID card. The ID card, together with a so-

called "Law Enforcement Officers Safety Act Training and

Certification Card" (training certification card), allows the

holder to carry a concealed firearm in accordance with the

provisions of the Law Enforcement Officers Safety Act of 2004

(LEOSA), Pub. L. No. 108-277, 118 Stat. 865 (2004), codified

insofar as relevant here at 18 U.S.C. § 926C (2012). See 501

Code Mass. Regs. § 13.04(2)(a). After determining that Frawley

had standing to seek declaratory relief, a judge allowed

Frawley's motion for summary judgment, declaring that he was

entitled to receive a replacement ID card because he had retired

3

"in good standing." Id. at §§ 13.02, 13.03. The commissioner

appealed, and we transferred the case to this court on our own

motion. We affirm, but for reasons different from those

articulated by the judge.

1. Statutory and regulatory framework. On July 22, 2004,

Congress enacted LEOSA, which permits a "qualified retired law

enforcement officer" who possesses the requisite State-issued

identification to "carry a concealed firearm that has been

shipped or transported in interstate or foreign commerce,"

subject to certain enumerated restrictions. 18 U.S.C. § 926C.

Several years later, on January 11, 2008, the Massachusetts

Executive Office of Public Safety and Security promulgated

"rules and regulations governing the standards for

identification cards for retired law enforcement officers to

comply with the provisions of [LEOSA]."1 501 Code Mass. Regs.

§ 13.01. Pursuant to these regulations, "[t]he chief law

enforcement officer for a law enforcement agency shall issue an

identification card to a qualified retired law enforcement

1

The regulations promulgated in 2008 were amended on

August 16, 2013. See 501 Code Mass. Regs. §§ 13.00 (2013).

Because the application of Joseph F. Frawley, Jr., for a

replacement "retired officer identification card" (ID card) was

denied by the police commissioner for the city of Cambridge

(commissioner) in February, 2012, our decision is based on the

regulations as they existed in 2008. See 501 Code Mass. Regs.

§§ 13.00 (2008). We note that the amendments are not relevant

to the contested issues in this appeal.

4

officer, who retired from that law enforcement agency" (emphasis

added). Id. at § 13.03. A "qualified retired law enforcement

officer" is an individual who, among other things, "retired in

good standing from service with a law enforcement agency as a

law enforcement officer, other than for reasons of mental

instability."2,3 Id. at § 13.02. The regulations do not define

what it means to have retired "in good standing."

2

In addition, a "qualified retired law enforcement officer"

is an individual who (1) "before such retirement, was authorized

by law to engage in or supervise the prevention, detection,

investigation, or prosecution of, or the incarceration of any

person for, any violation of law, and had statutory powers of

arrest"; (2) "before such retirement, was regularly employed as

a law enforcement officer for an aggregate of [fifteen] years or

more" or "retired from service with such agency after completing

any applicable probationary period of such service due to a

service-connected disability"; (3) "has a nonrefundable right to

benefits under the retirement plan of the agency"; (4) "is not

under the influence of alcohol or another intoxicating or

hallucinatory drug or substance"; and (5) "is not prohibited by

Federal law from receiving a firearm." 501 Code Mass. Regs.

§ 13.02. Because the commissioner has not alleged in this

appeal that Frawley failed to satisfy any of these additional

criteria, we do not discuss them further.

3

When 501 Code Mass. Regs. § 13.02 was amended in 2013, see

note 1, supra, the phrase "other than for reasons of mental

instability" was removed. In its place, new language was added

to the regulation which states that a "qualified retired law

enforcement officer" is an individual who "has not been

officially found by a qualified medical professional employed by

the [law enforcement] agency to be unqualified for reasons

relating to mental health" or "has not entered into an agreement

with the [law enforcement] agency . . . in which that individual

acknowledges he or she is not qualified . . . for reasons

relating to mental health . . . ." 501 Code Mass. Regs. § 13.02

(2013).

5

The department is a "law enforcement agency" within the

meaning of 501 Code Mass. Regs. § 13.02. The commissioner is

its "chief law enforcement officer" under the provisions of

§ 2.52.010 of the Cambridge Code of Ordinances (Ordinances).

See 501 Code Mass. Regs. § 13.02; Ordinances § 2.52.010 (1990).

The authority of the commissioner includes the power to

"organize and administer the Department," Ordinances

§ 2.52.030(A) (1989), and to "make suitable regulations

governing the Department and the officers thereof, subject to

the approval of the City Manager." Ordinances § 2.52.010.

Pursuant to this authority, the commissioner issued "Policy and

Procedures No. 151" (Policy 151), entitled "Police

Identification Card Program," on August 6, 2011. Its stated

purpose is "to describe how [the] department will go about

issuing police identification cards to sworn members of the

Cambridge Police Department, as well as to those members of the

department who retire from the Cambridge Police Department."

Policy 151 § I. The procedures pertaining to retired police

officers state that "[t]he department will issue one police

identification card to sworn members of the department who have

separated from service from the Cambridge Police Department and

qualified to receive said identification card, identifying said

members as . . . retired police." Policy 151 § IV(F). A

retired police officer is qualified to receive an ID card where,

6

among other criteria, the officer "[s]eparated in good standing,

meaning that such officer was not charged with or suspected of

criminal activity at the time of retirement or separation from

the department, nor was he/she under investigation or facing

disciplinary action for an ethical violation of departmental

rules, or for any act of dishonesty." Policy 151 § IV(F)(1)(a).

2. Factual and procedural background. The department

hired Frawley on October 14, 1980. He worked as a full-time

patrol officer until April 1, 1990, when he was promoted to the

rank of sergeant. Frawley served in that position until

March 4, 2004, the effective date of his retirement. His tenure

with the department was not entirely without incident.

Commencing on February 6, 2001, Frawley was suspended

without pay for five days for insubordination toward a superior

officer. Subsequently, on November 19, 2003, Frawley, the city,

and the Cambridge Police Superior Officers Association (union)

entered into a written memorandum of agreement (agreement) in

which they resolved several employment disputes. Among other

matters, Frawley agreed to accept a fifteen-day unpaid

suspension in partial resolution of disciplinary charges that

the city had brought against him in April, 2002. These charges

followed a department investigation which concluded that on

several occasions when Frawley had reported that he was out on

sick leave, he actually was conducting private business

7

activities and lying about his location on the days in question.

As to the remaining disciplinary charges from April, 2002, which

pertained to Frawley's failure to be truthful during a grievance

hearing, the parties agreed to hold them open, but the city

would take no further action unless Frawley was suspended for

five or more days in the future, at which point the city could

revive the charges. The agreement did not include any admission

of culpability by Frawley, did not mention his eligibility for

retirement, and did not limit Frawley's ability to exercise

police powers or to possess a firearm after the service of his

fifteen-day suspension. Once he served his suspension, Frawley

returned to unrestricted duties as a police sergeant and

continued to work in that capacity until he retired.

At around the time of Frawley's retirement, the Cambridge

city council adopted a resolution "expressing its appreciation

to Joseph F. Frawley, Jr., for his twenty-nine [sic] years of

dedicated service to the citizens and to the City of Cambridge

and wish[ing] him much happiness in his retirement." The

commissioner's predecessor then issued Frawley an ID card,4 even

though the department was in the midst of investigating a

citizen complaint that had been filed against Frawley on

4

The record does not indicate the exact date when the

commissioner's predecessor issued Frawley an ID card. According

to Frawley, it was "[u]pon, or shortly after" his retirement on

March 4, 2004.

8

September 29, 2003. The citizen alleged that, approximately one

year earlier, Frawley had abused his power and made a false

arrest in connection with a purported breaking and entering in

the nighttime at an apartment building. The citizen had been

employed by Frawley at some unspecified time in the past, and he

believed that his arrest was related to this prior employment.

An investigation by an internal affairs division of the

department ensued. Following a review of the circumstances

surrounding the incident, it was determined that the arrest was

proper and not connected to any past relationship between

Frawley and the citizen. In December, 2004, the department

cleared Frawley of the alleged wrongdoing. During the portion

of the investigation that occurred prior to Frawley's

retirement, Frawley's law enforcement duties and

responsibilities were not restricted in any manner.

On December 22, 2011, Frawley applied for the issuance of a

replacement ID card because the one in his possession had

broken. He attested on his application that, among other

factors, he "separated from service with the department in good

standing as a police officer, meaning that [he] was not charged

with or suspected of criminal activity at the time of

separation, nor was [he] under investigation or facing

disciplinary action for an ethical violation of departmental

rules, or for any act of dishonesty." See Policy 151

9

§ IV(F)(1)(a). Following a professional standards review,

Frawley's application was deemed "not recommended." By letter

dated February 6, 2012, the commissioner informed Frawley that

the department would not be issuing him a replacement ID card

because Frawley had not met "the standard set by the

Department."

In his amended complaint, Frawley sought a declaration that

the commissioner had breached his legal duty under 501 Code

Mass. Regs. § 13.03 to issue Frawley an ID card based on his

status as a "qualified retired law enforcement officer."

Frawley claimed that he had been "materially disadvantaged" by

the commissioner's denial of his application. In his answer to

the amended complaint, the commissioner denied that Frawley had

retired from the department in good standing and should be

deemed a "qualified retired law enforcement officer" within the

meaning of 501 Code Mass. Regs. § 13.02. The commissioner also

raised several affirmative defenses, including lack of standing

to bring an action for declaratory judgment.

Frawley subsequently filed a motion for summary judgment.

The commissioner filed a cross motion for summary judgment,

together with an affidavit explaining his rationale for denying

Frawley's application for a replacement ID card. The

commissioner stated in his affidavit that, at the time of

Frawley's retirement, "open charges remained relating to

10

[Frawley's] fail[ure] to tell the truth during a [department]

investigation," and Frawley was "under investigation for a claim

made by a member of the public that [he] had engaged in a false

arrest." The commissioner also pointed out that Frawley had

been suspended for insubordination toward a superior officer,

and for misconduct arising from his abuse of sick leave.

Finally, the commissioner stated that after giving the matter

serious consideration, he exercised his discretion as

commissioner, based on his knowledge of Frawley's history with

the department, and concluded that Frawley would not be issued a

replacement ID card.

By decision dated September 22, 2014, the judge allowed

Frawley's motion for summary judgment and declared that he was

entitled to receive a replacement ID card from the commissioner

in accordance with the regulations. The judge concluded that

where Frawley had alleged that the commissioner violated his

duty under 501 Code Mass. Regs. § 13.03, and where, as a

consequence, Frawley was denied the benefits conferred under

LEOSA, Frawley had standing to seek declaratory relief. The

judge further concluded that Frawley had retired in good

standing as a matter of "historical fact," and that the

commissioner did not have the power to reconsider his

predecessor's decision. The present appeal ensued.

11

3. Complaint for declaratory judgment. The commissioner

contends that the judge erred in concluding that Frawley had

standing to bring a cause of action for declaratory relief

predicated on the commissioner's failure to issue him a

replacement ID card in accordance with the mandate of 501 Code

Mass. Regs. § 13.03. The commissioner maintains that the

regulations do not permit, either expressly or by implication, a

private cause of action to compel the chief law enforcement

officer for a law enforcement agency to issue an ID card.

Further, he continues, the enabling statute on which the

regulations are based, G. L. c. 140, § 131 (r), does not suggest

any legislative intent to create an enforceable right. We

conclude that a complaint for declaratory judgment is not the

appropriate means to challenge a chief law enforcement officer's

decision to deny the issuance of an ID card. Rather, the proper

avenue for relief is a civil action in the nature of certiorari

pursuant to G. L. c. 249, § 4.

It is undisputed that the regulations do not provide, in

express terms, a private right of action for an aggrieved party

to challenge the denial of an ID card. Contrast, e.g., 118 Code

Mass. Regs. § 14.03(5) (2005) (individual wanting to challenge

decision by executive director of Disabled Persons Protection

Commission regarding personal data may seek judicial review

pursuant to G. L. c. 214, § 3B); 961 Code Mass. Regs. § 4.03(5)

12

(1993) (aggrieved party may obtain judicial review of denial of

permit to conduct raffle or bazaar by filing petition for review

in District Court). The inquiry therefore becomes whether a

private right of action can be inferred from the regulations.

We conclude that it cannot.

In Loffredo v. Center for Addictive Behaviors, 426 Mass.

541, 546 (1998), this court held that "a private cause of action

cannot be inferred solely from an agency regulation." See

Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court,

448 Mass. 15, 38 (2006) (regulations governing asbestos removal

did not provide right of action to enforce compliance with

mandates); Hudson v. Commissioner of Correction, 46 Mass. App.

Ct. 538, 548 n.18 (1999), S.C., 431 Mass. 1 (2000) (violation of

health regulations applicable to correctional facilities did not

create private right of action for affected inmates). As we

explained in Loffredo, "a judicial inference of a private cause

of action solely from an agency regulation requires a twofold

stretch: the judiciary infers a cause of action not to

supplement a statute enacted by the Legislature, but to

supplement a rule enacted by the executive, which itself

supplements the statute." Loffredo, supra at 545. By

"inferring a private cause of action from an agency regulation

alone, we run the risk of joining with the executive to revise

13

and go substantially beyond the will of the Legislature." Id.

at 546.

General Laws c. 140, § 131 (r), and 18 U.S.C. § 926C are

the enabling statutes pursuant to which the Secretary of the

Executive Office of Public Safety and Security promulgated the

regulations governing ID cards for qualified retired law

enforcement officers. See 501 Code Mass. Regs. §§ 13.00.

Section 131 governs licenses to carry firearms, and subsection

(r) authorizes the Secretary to promulgate regulations to carry

out the purposes of § 131. Neither § 131, in general, nor

subsection (r), in particular, addresses ID cards, either

explicitly or implicitly. Section 131 does, however, include a

private right of action for a party aggrieved by the denial of a

license to carry a firearm. It states that "[a]ny applicant or

holder aggrieved by a denial, revocation or suspension of a

license [to carry] . . . may . . . file a petition to obtain

judicial review in the district court having jurisdiction in the

city or town wherein the applicant filed for, or was issued,

such license." G. L. c. 140, § 131 (f). A license to carry a

firearm is substantively different from an ID card. Nothing in

§ 131 suggests that the Legislature intended to confer a private

right of action on a retired law enforcement officer who has

been denied an ID card. Similarly, at least one Federal court

has held that Congress did not intend, either explicitly or

14

implicitly, to create a private cause of action under 18 U.S.C.

§ 926C for retired law enforcement officers who have been denied

a State-issued photographic identification. See Johnson v. New

York State Dep't of Correctional Servs., 709 F. Supp. 2d 178,

183-186 (N.D.N.Y. 2010). On the basis of both State and Federal

law, we conclude that Frawley cannot assert a private cause of

action to compel the commissioner to issue him a replacement ID

card.

Apparently recognizing the absence of a private right of

action, Frawley proceeded by filing a complaint for declaratory

and injunctive relief. The purpose of the declaratory judgment

statute, G. L. c. 231A, is "to remove, and to afford relief

from, uncertainty and insecurity with respect to rights, duties,

status and other legal relations." G. L. c. 231A, § 9. Among

other controversies to which the declaratory judgment procedure

is appropriate, it may be used to resolve disputes concerning

the interpretation of an administrative regulation. See G. L.

c. 231A, § 2; Ciszewski v. Industrial Acc. Bd., 367 Mass. 135,

140 (1975). Generally speaking, however, "a party may not seek

declaratory relief to effect an 'end run' around the absence of

a private right of action where the Legislature intended to

foreclose certain remedies." Service Employees Int'l Union,

Local 509 v. Department of Mental Health, 469 Mass. 323, 336

15

(2014) (SEIU).5 See Boston Med. Ctr. Corp. v. Secretary of the

Executive Office of Health & Human Servs., 463 Mass. 447, 470-

471 (2012) (provider of medical care could not seek declaratory

judgment as to reasonableness of rate determinations absent

private right of action). Not only has the Legislature

foreclosed a private right of action with respect to the denial

of an ID card, but, more fundamentally, the nature of the

dispute here is not one that is appropriate for declaratory

judgment.6

5

In Service Employees Int'l Union, Local 509 v. Department

of Mental Health, 469 Mass. 323, 335-336 (2014) (SEIU), this

court concluded that the plaintiff had standing to seek a

declaratory judgment under G. L. c. 231A, even though the

Massachusetts privatization statute, G. L. c. 7, §§ 52-55

(Pacheco Law), did not contain a private right of action,

because the absence of declaratory relief would prevent the

Pacheco Law from being administered properly and thus would

contravene the Legislature's intent. We noted in SEIU that our

determination that declaratory judgment was the appropriate

remedy "should be understood as limited to the circumstances

presented" in that case. Id. at 337 n.12. In contrast, we

continued, the proper vehicle for relief when challenging a

decision by the Auditor of the Commonwealth, who is statutorily

authorized to review all privatization contracts for compliance

with the Pacheco Law, is an action in the nature of certiorari

pursuant to G. L. c. 249, § 4. Id. As will be discussed infra,

a certiorari action also is the proper vehicle to challenge a

decision denying an ID card to a retired law enforcement

officer.

6

In this appeal, Frawley has argued that he has standing to

seek declaratory relief because the commissioner violated a

legal duty owed to Frawley by refusing to issue a replacement ID

card, and because Frawley has alleged an injury -- the inability

lawfully to carry a concealed firearm across State lines

pursuant to Federal law -- that is within the area of concern of

501 Code Mass. Regs. §§ 13.00. See Enos v. Secretary of Envtl.

16

"[A] complaint for declaratory relief is an appropriate way

of testing the validity of regulations or the propriety of

practices involving violations of rights, which are consistent

and repeated in nature." Nelson v. Commissioner of Correction,

390 Mass. 379, 388 n.12 (1983), citing G. L. c. 231A, § 2.

However, we have said that declaratory judgment is not "an

appropriate remedy where the validity of an adjudication . . .

in an individual case is being challenged. There relief in the

nature of certiorari is to be sought." Diatchenko v. District

Attorney for the Suffolk Dist., 471 Mass. 12, 30 (2015), quoting

Averett v. Commissioner of Correction, 25 Mass. App. Ct. 280,

287 (1988), S.C., Averett, petitioner, 404 Mass. 28 (1989)

(action for declaratory relief not appropriate form of judicial

review of parole board decision denying initial parole to

juvenile homicide offender). See SEIU, 469 Mass. at 337 n.12.

See also Grady v. Commissioner of Correction, 83 Mass. App. Ct.

126, 131, 135-136 (2013) (inmate appeal challenging Department

of Correction determination in official disciplinary proceeding

governed by certiorari statute).

Affairs, 432 Mass. 132, 135 (2000). We need not analyze whether

Frawley has standing to maintain his action because such

analysis presupposes that Frawley's complaint for declaratory

judgment is the proper vehicle for challenging the

commissioner's decision. In light of our conclusion that it is

not, the matter whether Frawley has standing is immaterial.

17

In his amended complaint, Frawley states that the parties

have a genuine dispute over the commissioner's legal obligation

under 501 Code Mass. Regs. § 13.03 to issue Frawley a

replacement ID card.7 Although Frawley appears to characterize

his action to fit within the scope of G. L. c. 231A, we do not

agree with his description of the nature of the controversy.

The meaning of § 13.03, and the right conferred thereunder, is

not uncertain or ambiguous such that it requires judicial

interpretation. The duty of the commissioner is clear. Once an

individual satisfies the criteria set forth in 501 Code Mass.

Regs. § 13.02 for being deemed a "qualified retired law

enforcement officer," the commissioner "shall issue" an ID card.

Conversely, the commissioner has no legal obligation under the

regulations to issue an ID card to an individual who is not a

"qualified retired law enforcement officer." The dispute

between the parties is not about the meaning or scope of the

commissioner's obligation under § 13.03, but, more accurately,

whether the commissioner's decision to deny Frawley's

application for a replacement ID card was improper. Given the

substance of Frawley's complaint, and the absence of a private

right of action under the regulations or enabling legislation,

7

Although Frawley refers in his amended complaint to 501

Code Mass. Regs. § 13.04, it is § 13.03 that governs the

issuance of an ID card to a qualified retired law enforcement

officer.

18

the appropriate avenue of relief for Frawley was a civil action

in the nature of certiorari pursuant to G. L. c. 249, § 4.

The purpose of a civil action in the nature of certiorari

is "to relieve aggrieved parties from the injustice arising from

errors of law committed in proceedings affecting their

justiciable rights when no other means of relief are open."

Figgs v. Boston Hous. Auth., 469 Mass. 354, 361 (2014), quoting

Swan v. Justices of the Superior Court, 222 Mass. 542, 544

(1916). See G. L. c. 249, § 4. "Certiorari also has been

described as 'a limited procedure reserved for correction of

substantial errors of law apparent on the record created before

a judicial or quasi-judicial tribunal.'" Figgs, supra, quoting

School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 575-576

(2007). See Massachusetts Bay Transp. Auth. v. Auditor of the

Commonwealth, 430 Mass. 783, 790-791 (2000); Gloucester v. Civil

Serv. Comm'n, 408 Mass. 292, 297 (1990). "To obtain certiorari

review of an administrative decision, the following three

elements must be present: (1) a judicial or quasi judicial

proceeding, (2) from which there is no other reasonably adequate

remedy, and (3) a substantial injury or injustice arising from

the proceeding under review." Indeck v. Clients' Sec. Bd., 450

Mass. 379, 385 (2008). See Boston Edison Co. v. Selectmen of

Concord, 355 Mass. 79, 83 (1968). We conclude that the

19

commissioner's decision satisfies the necessary elements for

certiorari review.

As to the first element of the Indeck test, when assessing

whether a proceeding is quasi judicial, "we have looked to the

form of the proceeding . . . and the extent to which that

proceeding resembles judicial action." Hoffer v. Board of

Registration in Med., 461 Mass. 451, 457 (2012). Here, Frawley

completed an application for a replacement ID card in which he

attested that he satisfied the necessary criteria to be deemed a

"qualified retired law enforcement officer." Then, a

"professional standards review" was conducted. Based on the

results of that investigation, the commissioner determined that

Frawley had not met "the standard set by the Department" and,

therefore, was not entitled to receive a replacement ID card.

This was not a legislative or regulatory proceeding,

characterized by interested persons advocating or disapproving a

proposed policy to be implemented by a local licensing board.

See id. See also School Comm. of Hudson, 448 Mass. at 576;

Pronghorn, Inc. v. Licensing Bd. of Peabody, 13 Mass. App. Ct.

70, 72-73 (1982). Rather, notwithstanding the absence of an

adjudicatory hearing, Frawley was required to attest to certain

facts, the department conducted an investigation into the

veracity of those facts, and the commissioner made an

individualized determination concerning Frawley's entitlement to

20

a replacement ID card. This proceeding, conducted under the

framework of the regulations, was quasi judicial. See, e.g.,

Roslindale Motor Sales, Inc. v. Police Comm'r of Boston, 405

Mass. 79, 83-84 (1989) (statute giving police commissioner

authority to grant licenses to sell used motor vehicles

conferred quasi judicial authority on commissioner to determine

facts and decide each application).

With respect to the second element of the Indeck test,

absent a civil action in the nature of certiorari, there is no

other remedy available to Frawley, as we have discussed, supra.

Finally, the commissioner's denial of a replacement ID card

constitutes a substantial injury or injustice. See Indeck, 450

Mass. at 385. "The injury requirement has been interpreted as

requiring (1) a justiciable injury, (2) that is particular to

the plaintiff[] rather than common to the public or a segment

thereof, and (3) that is more than 'hypothetical.'" Hoffer, 461

Mass. at 457 n.8, quoting Fiske v. Selectmen of Hopkinton, 354

Mass. 269, 271 (1968). The ID card, together with a training

certification card, would allow Frawley to carry a concealed

firearm across State lines in accordance with the provisions of

LEOSA. See 501 Code Mass. Regs. § 13.04(2)(a). See also 18

U.S.C. § 926C. By denying Frawley a replacement ID card, the

commissioner has rendered him ineligible to exercise this

21

Federal right. Such injury is sufficient to satisfy the third

element of the Indeck test.

Our conclusion that a civil action in the nature of

certiorari is the appropriate avenue of relief for Frawley is

consistent with the relief that is afforded to an individual who

is denied a license to carry firearms under G. L. c. 140, § 131.

Judicial review of a firearms licensing decision is available

first by way of "a petition to obtain judicial review in the

district court," G. L. c. 140, § 131 (f), and then "by way of an

action in the nature of certiorari pursuant to G. L. c. 249,

§ 4." Firearms Records Bur. v. Simkin, 466 Mass. 168, 179-180

(2013). See Chardin v. Police Comm'r of Boston, 465 Mass. 314,

317, cert. denied sub nom. Chardin v. Davis, 134 S. Ct. 525

(2013). "On certiorari review, the Superior Court's role is to

examine the record of the District Court and to 'correct

substantial errors of law apparent on the record adversely

affecting material rights.'" Simkin, supra at 180, quoting

Cambridge Hous. Auth. v. Civil Serv. Comm'n, 7 Mass. App. Ct.

586, 587 (1979). Although a license to carry a firearm is

substantively different from an ID card, both are components of

a licensing scheme that allows a qualified retired law

enforcement officer to carry a firearm in Massachusetts and

across State lines. See G. L. c. 140, § 131; 501 Code Mass.

Regs. §§ 13.00. See also 18 U.S.C. § 926C. It is appropriate

22

that the denial of an ID card be subject to the same form of

judicial review as the denial of a license to carry. See

Bermant v. Selectmen of Belchertown, 425 Mass. 400, 404 (1997)

("a civil action in the nature of certiorari is the sole relief

available to a party aggrieved by a discretionary decision of a

local licensing authority").

Having ascertained the proper form of judicial review of

the commissioner's decision, we now consider the separate matter

of the standard of review to be applied to such decision. See

Diatchenko, 471 Mass. at 31. "It is well established that 'the

standard of review [under G. L. c. 249, § 4,] may vary according

to the nature of the action for which review is sought.'"

Figgs, 469 Mass. at 361, quoting Garrity v. Conservation Comm'n

of Hingham, 462 Mass. 779, 792 (2012). We have yet to decide

the appropriate standard of review of a police commissioner's

decision to deny the issuance of an ID card to a retired law

enforcement officer. Although the commissioner "shall issue" an

ID card where an applicant has satisfied the enumerated criteria

for being deemed a "qualified retired law enforcement officer,"

501 Code Mass. Regs. § 13.03, whether in fact an applicant has

satisfied such criteria is a discretionary decision. We

recognize that the majority of the criteria are objective. See

note 2, supra. Significantly, however, the commissioner must

determine whether the applicant retired "in good standing." 501

23

Code Mass. Regs. § 13.02. Because the commissioner may use his

judgment in making this determination, his decision will be

construed as an exercise of administrative discretion. A

reviewing court will examine whether the commissioner's decision

was arbitrary and capricious such that it constituted an abuse

of his discretion. See Diatchenko, supra (abuse of discretion

standard appropriate to review decision whether to grant parole

to particular juvenile homicide offender); Garrity, supra;

Forsyth Sch. for Dental Hygienists v. Board of Registration in

Dentistry, 404 Mass. 211, 217 (1989).

Employing an abuse of discretion standard for reviewing the

denial of an ID card is consistent with the standard of review

under the license to carry statute. General Laws c. 140,

§ 131 (f), provides that a judge "may direct that a license be

issued or reinstated . . . if [the judge] finds that there was

no reasonable ground for denying, suspending or revoking such

license and that the petitioner is not prohibited by law from

possessing same" (emphasis added). "To warrant a finding that a

chief of police had no reasonable ground for refusing to issue a

license [to carry firearms,] it must be shown that the refusal

was arbitrary, capricious, or an abuse of discretion." Chief of

Police of Shelburne v. Moyer, 16 Mass. App. Ct. 543, 546 (1983).

See Simkin, 466 Mass. at 179.

24

When reviewing the commissioner's decision in this case,

the inquiry is twofold. First, it must be determined whether

the commissioner erred in reopening Frawley's case, given that

the prior police commissioner had issued Frawley an ID card.

Second, it must be determined whether the commissioner abused

his discretion in deciding that Frawley had not met "the

standard set by the Department" and, therefore, was not entitled

to a replacement ID card. See 501 Code Mass. Regs. § 13.03. A

decision is arbitrary or capricious such that it constitutes an

abuse of discretion where it "lacks any rational explanation

that reasonable persons might support." Doe v. Superintendent

of Schs. of Stoughton, 437 Mass. 1, 6 (2002), quoting Fire Chief

of E. Bridgewater v. Plymouth County Retirement Bd., 47 Mass.

App. Ct. 66, 69 (1999). See L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014) (abuse of discretion occurs when there has

been clear error of judgment in weighing relevant factors such

that decision falls outside range of reasonable alternatives).

"It is not the place of a reviewing court to substitute its own

opinion" for that of the commissioner. Doe, supra.

Judicial review of the commissioner's decision proceeds

under the same standard whether conducted by this court or

remanded to the Superior Court for reconsideration. The

decision by a reviewing court is a ruling of law that does not

require findings of fact, determinations of credibility, or the

25

application of administrative expertise. See Doe, 437 Mass. at

5-6 & n.6; Northboro Inn, LLC v. Treatment Plant Bd. of

Westborough, 58 Mass. App. Ct. 670, 673-674 (2003). Instead,

the reviewing court simply must determine whether the

commissioner, on the basis of the evidence before him, abused

his discretion in a manner that adversely affected Frawley's

material rights. See Simkin, 466 Mass. at 179-180; Gloucester,

408 Mass. at 297. We stand in the same position as the judge

below in making that determination. Moreover, this court has

concurrent jurisdiction with the Superior Court to entertain an

action in the nature of certiorari under G. L. c. 249, § 4.

That being the case, and in light of the limited review afforded

a certiorari action, we proceed to decide the commissioner's

appeal in the interests of judicial economy and efficiency.8

8

A civil action in the nature of certiorari "shall be

commenced within sixty days next after the proceeding complained

of." G. L. c. 249, § 4. Failure to do so is a "serious

misstep" that is grounds for dismissal of the action. See

Bielawski v. Personnel Adm'r of the Div. of Personnel Admin.,

422 Mass. 459, 465 n.13 (1996); Pidge v. Superintendent, Mass.

Correctional Inst., Cedar Junction, 32 Mass. App. Ct. 14, 17-18

(1992), citing McLellan v. Commissioner of Correction, 29 Mass.

App. Ct. 933, 935 (1990). Here, the commissioner denied

Frawley's application for a replacement ID card by letter dated

February 6, 2012. Frawley filed his original complaint on

November 13, 2012. If Frawley had sought review of the

commissioner's decision by filing a civil action in the nature

of certiorari, instead of by filing a complaint for declaratory

and injunctive relief, his action would have been deemed

untimely. However, given that no appellate court heretofore had

decided whether an aggrieved party could challenge the denial of

an ID card, and, if so, what would be the proper avenue for

26

See, e.g., Murphy v. Superintendent, Mass. Correctional Inst.,

Cedar Junction, 396 Mass. 830, 833 (1986) (treating complaint

for declaratory and injunctive relief as action in nature of

certiorari); McLellan v. Commissioner of Correction, 29 Mass.

App. Ct. 933, 934 (1990) (same).

4. Entitlement to replacement ID card. We begin by

considering whether the commissioner erred in reopening

Frawley's case. Once Frawley submitted an application to obtain

a replacement ID card, the commissioner was required to issue

the card, provided that Frawley was a "qualified retired law

enforcement officer," which meant that, among other things, he

had retired "in good standing." 501 Code Mass. Regs. §§ 13.02,

13.03. The commissioner argues on appeal that it was not a

"historical fact" that Frawley had satisfied this criterion.

Therefore, the commissioner continues, he was compelled to

reopen Frawley's case to ascertain whether, in fact, Frawley had

retired in good standing. We agree.

The commissioner's predecessor issued Frawley an ID card at

around the time of Frawley's retirement on March 4, 2004. The

regulations setting forth the standards for the issuance of an

ID card were not promulgated until January 11, 2008. 501 Code

relief, we decline to dismiss Frawley's appeal as untimely. Our

decision to ignore this procedural defect should be understood

as limited to the unique circumstances presented in this case.

Cf. Bielawski, supra.

27

Mass. Regs. § 13.01 (2008). When the commissioner received

Frawley's application for a replacement ID card in December,

2011, he would not have known what criteria, if any, his

predecessor had considered prior to giving Frawley his original

ID card. That being the case, the commissioner would have had

no basis for knowing whether Frawley was a "qualified retired

law enforcement officer" to whom the commissioner was obligated

to issue a replacement ID card. Contrary to Frawley's

contention, the mere fact that Frawley obtained an ID card in

2004 does not mean that he retired "in good standing," given the

absence of articulated standards and criteria at that time for

the issuance of an ID card.

The commissioner is vested with the authority to "organize

and administer the Department." Ordinances § 2.52.030(A). This

authority encompasses the issuance of an ID card to a "qualified

retired law enforcement officer." To the extent that there was

any question as to Frawley's classification as such, it was well

within the commissioner's discretion to reexamine Frawley's

status. Cf. Soe, Sex Offender Registry Bd. No. 252997 v. Sex

Offender Registry Bd., 466 Mass. 381, 395 (2013), and cases

cited ("An administrative agency, in the absence of statutory

limitations, generally has the inherent authority to reconsider

a decision or reopen a proceeding to prevent or mitigate a

28

miscarriage of justice"). We conclude that the commissioner did

not err in reopening Frawley's case.

We now consider whether the commissioner abused his

discretion in deciding that Frawley had not met "the standard

set by the Department" and, therefore, was not entitled to a

replacement ID card. As we have mentioned, when the Executive

Office of Public Safety and Security promulgated the

regulations, it did not define what it meant to retire "in good

standing." 501 Code Mass. Regs. § 13.02. Consequently, the

commissioner described the meaning of this phrase when he issued

Policy 151, in accordance with his authority under Ordinances

§ 2.52.010. Policy 151 § IV(F)(1)(a). Given that Policy 151

was issued four months before Frawley applied for a replacement

ID card, the commissioner could use the definition therein to

assess whether Frawley should be deemed a "qualified retired law

enforcement officer." There is no evidence that the Executive

Office of Public Safety and Security intended to deny the city,

or the commissioner acting in conformity with the Ordinances,

the right to enact policies and procedures that would be

consistent with the regulations. A municipality enjoys

"considerable latitude" in legislating on matters of local

concern, including the authority and duties of its police

department. Bloom v. Worcester, 363 Mass. 136, 154 (1973). See

art. 89, § 6, of the Amendments to the Massachusetts

29

Constitution (Home Rule Amendment). See also Ordinances

c. 2.52. We have said that there must be a "sharp conflict"

between a local law and a State law before the local law will be

invalidated. Easthampton Sav. Bank v. Springfield, 470 Mass.

284, 288-289 (2014), quoting Bloom, supra. Here, the

commissioner did not modify the regulations. He merely

described the department's procedures for issuing ID cards and

explained an undefined criterion. In so doing, the commissioner

acted within his purview, and the description set forth in

Policy 151 of what it means to retire "in good standing"

governed the evaluation of Frawley's application.

In his affidavit, the commissioner cited several reasons

why Frawley did not meet "the standard set by the Department."

First, the commissioner stated that Frawley, at the time of his

retirement, was "under investigation for a claim made by a

member of the public that [he] had engaged in a false arrest."

Pursuant to Policy 151, a police officer has not retired "in

good standing" where, at the time of retirement, the officer was

"under investigation or facing disciplinary action for an

ethical violation of departmental rules, or for any act of

dishonesty." Policy 151 § IV(F)(1)(a). We acknowledge that the

citizen complaint would appear to disqualify Frawley from

receipt of a replacement ID card. However, at the time the

commissioner evaluated Frawley's application in 2012, he would

30

have known that the department had cleared Frawley of any

purported wrongdoing with respect to the citizen complaint. The

commissioner could not ignore this information where it plainly

removed an impediment to Frawley being deemed an officer who

retired "in good standing."9

Second, the commissioner stated that, at the time of

Frawley's retirement, "open charges remained relating to

[Frawley's] fail[ure] to tell the truth during a [department]

investigation." Pursuant to the November 19, 2003, agreement,

however, the city agreed to take no action on such charges

unless Frawley was suspended for five or more days in the

future, at which point the city could revive the charges.

During the remainder of Frawley's tenure with the department,

the city did not revive the charges, and, on the effective date

of Frawley's retirement, the charges effectively were closed

because Frawley had not engaged in any conduct that would

warrant a suspension. That being the case, this matter did not

disqualify Frawley from having retired "in good standing." See

Policy 151 § IV(F)(1)(a).

Finally, the commissioner pointed out that Frawley had been

suspended for insubordination toward a superior officer, and for

9

Had the commissioner been evaluating Frawley's application

in March, 2004, he would have acted well within his discretion

in refusing to issue an ID card given the ongoing investigation

concerning the citizen complaint.

31

misconduct arising from his abuse of sick leave. Neither of

these incidents was pending "at the time of retirement." Policy

151 § IV(F)(1)(a). As a consequence, they could not serve as a

basis for the commissioner's determination that Frawley had not

retired "in good standing."

5. Conclusion. The commissioner abused his discretion in

deciding that Frawley had not met "the standard set by the

Department." Accordingly, Frawley is entitled to receive a

replacement ID card. We vacate the declaratory judgment and

remand the case to the Superior Court for entry of a judgment

directing the commissioner to issue a replacement ID card to

Frawley.

So ordered.