Essex Regional Retirement Board v. Swallow State Board of Retirement v. O'Hare

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SJC-12458

SJC-12511

ESSEX REGIONAL RETIREMENT BOARD vs. JOHN SWALLOW & others.1

STATE BOARD OF RETIREMENT vs. BRIAN O'HARE & others.2

Essex. Suffolk. October 1, 2018. - January 18, 2019.

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

Retirement. Pension. Public Employment, Retirement, Forfeiture

of pension, Police. Police, Retirement, Regulations.

State Police.

Civil action commenced in the Superior Court Department on

July 14, 2015.

The case was heard by James F. Lang, J., on motions for

judgment on the pleadings.

After review by the Appeals Court, the Supreme Judicial

Court granted leave to obtain further appellate review.

Civil action commenced in the Superior Court Department on

January 29, 2015.

The case was heard by Peter M. Lauriat, J., on motions for

judgment on the pleadings.

1 Justices of the Salem Division of the District Court

Department of the Trial Court.

2 Justices of the Cambridge Division of the District Court

Department of the Trial Court.

2

After review by the Appeals Court, the Supreme Judicial

Court granted leave to obtain further appellate review.

Thomas C. Fallon for John Swallow.

Eric B. Tennen for Brian O'Hare.

Michael Sacco for Essex Regional Retirement Board.

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

of Retirement.

CYPHER, J. These two cases present closely related

questions concerning the scope of G. L. c. 32, § 15 (4)

(§ 15 [4]), which provides that no member of a public employee

retirement system shall be entitled to a retirement allowance

after conviction of a criminal offense involving a violation of

the laws applicable to his or her office or position.3

John Swallow was a police sergeant for the town of

Manchester-by-the-Sea on administrative leave when he was

charged with several crimes related to the discharge of his

personal firearm, charges to which he admitted to sufficient

facts to convict. Brian O'Hare was a police sergeant for the

State police when he was charged with the Federal crime of using

the Internet to entice a person under eighteen years of age to

engage in unlawful sexual activity, a charge to which he

subsequently pleaded guilty.

3 These cases were paired for oral argument and combined for

purposes of this opinion because they raise essentially

identical questions of law. Our analysis and decision apply

equally to both.

3

In these cases, there are neither factual connections

between the criminal activity and the officers' respective

positions nor apparent violations of any laws expressly

applicable to their positions. Notwithstanding, the Essex

Regional Retirement Board (Essex board) and the State Board of

Retirement (State board) each concluded that the officers'

respective convictions violated the fundamental tenets of their

positions as trusted law enforcement officials and denied the

officers a retirement allowance under § 15 (4) as a result.

We conclude that, while the officers' conduct was entirely

reprehensible, in view of the narrow interpretation that we have

given to § 15 (4), requiring the forfeiture of their pension

allowances was in error. Consequently, we affirm the decisions

of the Superior Court judges allowing the officers' respective

motions for judgment on the pleadings and vacating the boards'

decisions otherwise.

Background. The facts are undisputed in both cases.

1. Swallow. Swallow was a police sergeant for the town of

Manchester-by-the-Sea from March 1, 1989, until his termination

on January 4, 2013. Following a string of personal tragedies in

2011 and 2012, Swallow began drinking heavily and struggled with

significant depression. In June 2012, Swallow was placed on

administrative leave pending investigation of an abuse

allegation unrelated to this matter. He was required to return

4

his badge and service weapon at that time but retained his

license to carry a firearm.

The incident that gave rise to Swallow's convictions took

place in October 2012. Swallow and his wife, Lauren Noonan,

were at their home; Swallow was drinking heavily and acting

erratically. The couple argued, initially because Noonan was

concerned that Swallow might drive his car while under the

influence of alcohol, and the argument escalated. At one point,

Noonan stated that she wanted Swallow to leave the home.

Swallow refused, and Noonan indicated that if he did not leave

she would testify against him regarding the abuse allegation.

Swallow grabbed Noonan by the shirt, yelled at her, and waved a

handgun in her face. Noonan left the home and began to walk to

a neighbor's home. While in the neighbor's driveway, she heard

a single gunshot.

Swallow, apparently contemplating suicide, had fired what

he called a "brave shot," i.e., a shot meant to determine

whether he had the courage to commit suicide. The bullet grazed

his hand. Swallow was arrested by the Beverly police that

evening and ultimately pleaded guilty to (1) assault and

battery, (2) discharge of a firearm within 500 feet of a

building, (3) assault by means of a dangerous weapon, (4)

5

multiple counts of improper storage of a firearm,4 and (5)

intimidation of a witness.

Swallow committed his crimes while on administrative leave

and with a personal firearm. He did not use his position as an

officer or police resources to facilitate his crime.

Nonetheless, the Essex board determined that Swallow's

convictions required forfeiture of his pension under § 15 (4)

because his offenses "strike at the heart of the duties of a

police officer and simply cannot be separated from his position

as a law enforcement officer," and his actions "were a violation

of the public's trust as well as a repudiation of his official

duties."

Swallow sought review in the District Court, arguing that

forfeiture was unjustified where there was no reference to

public employment in the criminal statute under which he was

convicted, no direct factual link between his conduct and his

position as a police officer, and no violation of any

identifiable law app1icable to that position. Swallow also

argued that forfeiture violated the excessive fines clause of

the Eighth Amendment to the United States Constitution. On

4 A search of the house revealed a considerable collection

of firearms and ammunition in the home, including hundreds of

weapons that Swallow was storing for a friend who was on a

military deployment. The police determined that three of the

firearms observed in the house were not properly secured.

6

cross motions for judgment on the pleadings, a judge in the

District Court vacated the Essex board's decision, concluding

that Swallow's conduct and subsequent convictions were not

connected sufficiently to his position to warrant forfeiture.

That decision was subsequently affirmed by a judge of the

Superior Court. Thereafter, the Appeals Court concluded that

Swallow's use of a gun to threaten another's life violated the

public's trust and was a repudiation of his official duties.

Essex Regional Retirement Bd. v. Justices of the Salem Div. of

the Dist. Court Dep't of the Trial Court, 91 Mass. App. Ct. 755,

760 (2017). Accordingly, the court reversed and remanded the

matter to the District Court for consideration of the Eighth

Amendment issue. Id. at 761.

2. O'Hare. O'Hare served as a trooper for the State

police from 1986 until his resignation in October 2006. For

several months in 2005 and 2006, O'Hare communicated online

with, and eventually arranged to meet with, an individual whom

he believed to be a fourteen year old boy but was actually an

undercover agent with the Federal Bureau of Investigation (FBI).

The FBI arrested O'Hare in February 2006. O'Hare subsequently

resigned from his position and pleaded guilty to a charge of

using the Internet to attempt to coerce and entice a child under

the age of eighteen years to engage in unlawful sexual activity.

7

O'Hare did not use his position or State police resources

to facilitate his crime; he used his personal computer and did

not communicate with the undercover agent while on duty. The

foregoing notwithstanding, the State board determined that

Swallow's conviction required forfeiture of his pension under

§ 15 (4) because it constituted a violation of the core tenets

of his position and went "directly to the heart" of his

responsibilities and obligations as a State police trooper.

O'Hare sought review in the District Court, arguing that

forfeiture was not warranted where his conviction was not

related to his position as a State police trooper. The State

board argued that his misconduct, although private, went to the

heart of his obligation to enforce the criminal laws and, as a

result, forfeiture was required. On cross motions for judgment

on the pleadings, a judge in the District Court vacated the

State board's decision, concluding that O'Hare's criminal

conduct did not warrant forfeiture because it was wholly

independent of his job as a State police trooper. That decision

was subsequently affirmed by a judge in the Superior Court.

Thereafter, the Appeals Court reversed, concluding that

forfeiture was required because O'Hare's conduct violated the

fundamental tenets of his role as a State police trooper, where

the protection of the vulnerable, including children, is at the

heart of a police officer's role, and this repudiation of his

8

official duties violated the public's trust and the integrity of

the State police. State Bd. of Retirement v. O'Hare, 92 Mass.

App. Ct. 555, 559 (2017).

Discussion. 1. Standard of review. 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."

State Bd. of Retirement v. Bulger, 446 Mass. 169, 173 (2006).

We may correct "only a substantial error of law, evidenced by

the record, which adversely affects a material right of the

plaintiff" and "rectify only those errors of law which have

resulted in manifest injustice to the plaintiff or which have

adversely affected the real interests of the general public"

(citation omitted). Garney v. Massachusetts Teachers'

Retirement Sys., 469 Mass. 384, 388 (2014).

2. Pension forfeiture pursuant to G. L. c. 32, § 15. a.

Origins of § 15 (4). General Laws c. 32, § 15, contains four

subsections that generally govern the consequences that result

from the commission of certain criminal offenses to retirement

rights of public employees. Subsection (1) applies to those

situations in which a member of the retirement system "has been

charged with the misappropriation of funds or property of any

governmental unit" in which he or she was employed. Three other

9

subsections establish the consequences of convictions of certain

criminal offenses.

Subsections (3) and (3A) are both entitled "Forfeiture of

rights upon conviction." Subsection (3) denies a retirement

allowance after final conviction of such member "of an offense

involving the funds or property of a governmental unit or system

referred to in subdivision (1) of this section," and does not

permit the return of retirement contributions "unless and until

full restitution for any such misappropriation has been made."

Subsection (3A) applies only in circumstances where a member has

been convicted of certain specified offenses, i.e., those set

forth in either G. L. c. 268A, § 2 ("Corrupt gifts, offers or

promises to influence official acts; corruption of witnesses"),

or G. L. c. 265, § 25 ("Attempted extortion; punishment").

Subsection (4), inserted by St. 1987, c. 697, § 47, and

entitled "Forfeiture of pension upon misconduct," provides that

"in no event" shall any member of the State retirement system be

entitled to a retirement allowance "after final conviction of a

criminal offense involving violation of the laws applicable to

his office or position."5 This subsection was enacted in

reaction to this court's decision in Collatos v. Boston

Retirement Bd., 396 Mass. 684 (1986). See Gaffney v.

5 Retirement contributions are returned to the member.

G. L. c. 32, § 15 (4) (§ 15 [4]).

10

Contributory Retirement Appeal Bd., 423 Mass. 1, 3 (1996). In

Collatos, we determined that the Legislature intended subsection

(3A) to result in forfeiture only if the employee was convicted

of two specific State crimes. Collatos, supra at 687. As a

result, a Federal conviction under the Hobbs Act, although

arguably equivalent to a State offense enumerated in the

statute, did not compel forfeiture. Id. at 687-688. Shortly

after that decision, the Legislature inserted § 15 (4)

"providing for an intermediate level of pension forfeiture in a

broader array of circumstances." Gaffney, supra.

b. Application of § 15 (4). Our first substantive

decision considering the applicability of § 15 (4) was Gaffney,

423 Mass. 1. In that case, the superintendent of the Shrewsbury

water and sewer department pleaded guilty to stealing money and

property from the town over the course of several years. Id. at

2. We reiterated our position in Collatos that pension

forfeiture provisions are penal in character and must be

construed narrowly. Gaffney, supra at 3. We considered this in

tandem with the Legislature's apparent intention to expand the

circumstances leading to pension forfeiture. Id. at 3-4 ("In

using a broad phrase to describe the condition precedent to

forfeiture, the intent clearly is to avoid having the precise

form of the criminal enforcement action make a difference with

respect to the pension forfeiture issue. Further evidence of

11

this stems from the title of § 15 [4] -- 'Forfeiture of pension

upon misconduct'"). In that case we rejected an approach that

would have § 15 (4) operate "only in cases of violations of

highly specialized crimes addressing official actions, while not

providing the same when officials engage in criminal activities

in the course of their duties." Id. at 4. We reasoned that the

Legislature did not intend for forfeiture to necessarily follow

"any and all criminal convictions" and that the "substantive

touchstone" is "criminal activity connected with the office or

position" (emphasis added). Id. at 4-5 (emphasizing that

§ 15 [4] targets "[o]nly those violations related to the

member's official capacity"). In sum, we concluded that

"[l]ooking 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)." Id. at 5.

Massachusetts appellate decisions over the next decade

reflect consistent application of § 15 (4) where members had

engaged in criminal activities in the course of their duties,

often resulting in at least one violation of a statute expressly

applicable to public employees or officials. See, e.g., MacLean

v. State Bd. of Retirement, 432 Mass. 339, 340 (2000) (member of

Legislature convicted of violating State conflict of interest

law); Robinson v. Contributory Retirement Appeal Bd., 62 Mass.

App. Ct. 935, 936 (2005) (police officer convicted of, inter

12

alia, conspiring with his partner to embezzle, steal, or obtain

by fraud or otherwise significant sums of money that were under

care and custody of their department); Fidelity & Deposit Co. of

Md. v. Sproules, 60 Mass. App. Ct. 93, 94 (2003) (police chief

convicted of larceny of controlled substance; attempting to

procure perjury; intimidation of witness; and fraud or

embezzlement by city, town, or county officer).

The opinion of Bulger, 446 Mass. at 179, which appears to

rest on a broader interpretation of the statute, presented a

novel set of facts. In that case, a clerk-magistrate was

convicted of perjury and obstruction of justice in the context

of an arguably personal matter. The convictions were

unconnected factually to his position, and neither conviction

expressly applied to public officials or employees. However,

this court reasoned that "laws" applicable to clerk-magistrates

included the Code of Professional Responsibility for Clerks of

the Courts (code), S.J.C. Rule 3:12, as amended, 427 Mass. 1322

(1998). Bulger, supra at 177-178. Because the clerk-

magistrate's perjury and obstruction of justice convictions

clearly violated the code, a law applicable to his position,

they resulted in forfeiture of his pension. Id. at 179.

Notably, we recognized that not every code violation would

compel forfeiture: "the language of the code enunciating the

high standards to which clerks are held is broad, whereas the

13

language of . . . § 15 (4) . . . is narrower, no doubt due to

the severity of pension forfeiture as a sanction for dereliction

of duty by a member."6 Id. at 178. "Depending on the misconduct

at issue, there may be instances when removal of a clerk-

magistrate from office is mandated by G. L. c. 211, § 4, because

it serves the public good, but pension benefits are not

concomitantly terminated because the misconduct at issue does

not fall within the purview of G. L. c. 32, § 15. For example,

a member may be convicted of a criminal offense that does not

involve any violation of the laws applicable to his office or

position." Id. at 179. We emphasized that in that case the

clerk-magistrate's commission of perjury and obstruction of

justice "violated the fundamental tenets of the code." Id.

Therefore, forfeiture was required. See Retirement Bd. of

Somerville v. Buonomo, 467 Mass. 662, 671 (2014) (forfeiture

required where register of probate's convictions violated code

6 We also rejected the argument that we should consider

whether the clerk-magistrate's convictions, had they occurred

while he was still employed as a clerk-magistrate, would have

resulted in removal: "such an analysis is too broad, and it

fails to recognize that the standards for a member's removal

from office and for a member's forfeiture of a retirement

allowance are different." State Bd. of Retirement v. Bulger,

446 Mass. 169, 178 (2006). "[The] parameters for entering or

remaining in the profession are not the same as the standard for

forfeiting a pension to which an employee has contributed and

that he or she earned over the course of many years of public

service." Garney v. Massachusetts Teachers' Retirement Sys.,

469 Mass. 384, 391 (2014).

14

as well as at least one law plainly applicable to public

officers).

After Bulger, Massachusetts appellate courts continued to

uphold pension forfeitures in a narrow set of circumstances:

those where a member had either (1) engaged in criminal activity

factually connected to his or her position or (2) violated a law

expressly applicable to public employees or officials. See

State Bd. of Retirement v. Finneran, 476 Mass. 714, 722-723

(2017) (forfeiture required where Speaker of House's conviction

of felony obstruction of justice resulted from false testimony

he provided concerning his participation as Speaker in

redistricting planning process); Buonomo, 467 Mass. at 672

(forfeiture required where register of probate convicted on

multiple counts of breaking into depository [workplace cash

vending machine]; larceny; and embezzlement by public officer);

Dell'Isola v. State Bd. of Retirement, 92 Mass. App. Ct. 547,

553-554 (2017) (forfeiture required where correction officer's

conviction of possession of cocaine resulted from officer's on-

duty communications with inmate in custody); Durkin v. Boston

Retirement Bd., 83 Mass. App. Ct. 116, 119 (2013) (forfeiture

required where police officer used department-issued firearm to

shoot fellow officer while intoxicated and off duty); Maher v.

Justices of the Quincy Div. of the Dist. Court Dep't, 67 Mass.

App. Ct. 612, 616-617, 621 (2006) (forfeiture required where

15

chief plumbing and gas inspector broke into city's personnel

office, destroyed city property, and stole documents from his

own personnel file with aim of removing documents criticizing

his performance as chief inspector to improve his chances of

reappointment).

By contrast, our appellate courts declined to uphold

forfeitures where there were neither factual connections nor

violations of laws expressly applicable to public employees or

officials.7 See Garney, 469 Mass. at 387 n.7, 394-395

(forfeiture not required as result of teacher's convictions of

purchase and possession of child pornography where teacher

committed his crimes outside of school, without using school

resources or otherwise using his position to facilitate his

crimes, and without involving students in his illicit

activities); Retirement Bd. of Maynard v. Tyler, 83 Mass. App.

Ct. 109, 109, 112-113 (2013) (firefighter's sexual abuse

convictions did not support forfeiture where acts occurred off

7 We also have declined to require forfeiture pursuant to

§ 15 (4) where total forfeiture would violate the excessive

fines clause of the Eighth Amendment. See Public Employee

Retirement Admin. Comm'n v. Bettencourt, 474 Mass. 60, 78–79

(2016) (§ 15 [4] could not be enforced against police officer

who violated laws applicable to his position by illegally

accessing personnel files of fellow officers while on duty in

his official capacity as watch commander, on department

premises, and while using department computer, because complete

forfeiture of retirement benefits was not proportional to

gravity of underlying offenses of which he was convicted).

16

duty outside fire house and firefighter did not use "his

position, uniform, or equipment for the purposes of his indecent

acts"); Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct.

538, 543 (2011) (forfeiture not required as consequence of

library employee's convictions of possession of child

pornography where there was no evidence that employee used his

position or library resources to facilitate crime); Herrick v.

Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 653-655

(2010) (forfeiture not required where housing authority

custodian committed indecent assault and battery on daughter

because offense was not committed on housing authority property

or against any residents there, and offense did not bear other

connection to custodian's position).

In short, our precedent requires a "direct link" between

the criminal offense and the member's office or position, either

"factual" or "legal." Finneran, 476 Mass. at 720. In cases

involving factual links, a public employee's pension is subject

to forfeiture only "where there is a direct factual connection

between the public employee's crime and position." Id. at 720-

721, and cases cited. In cases involving legal links, a public

employee's pension is subject to forfeiture only "when a public

employee commits a crime directly implicating a statute that is

specifically applicable to the employee's position." Id. at

721, citing Buonomo, 467 Mass. at 664-666, and Bulger, 446 Mass.

17

at 177-180. The requisite legal link is shown "where the crime

committed is 'contrary to a central function of the position as

articulated in applicable laws.'" Finneran, supra, quoting

Garney, 469 Mass. at 391.

3. Analysis. Neither Swallow's nor O'Hare's conduct was

factually connected to his position as a police officer. In

addition, none of their convictions expressly applied to public

officials or employees. The question then is whether the

convictions nevertheless constituted violations of "the laws

applicable" to their positions. G. L. c. 32, § 15 (4).

The boards argue that the officers' convictions violated

the fundamental tenets of their positions such that there are

sufficient legal links to merit forfeiture. In reaching this

conclusion, they emphasize that police officers voluntarily

undertake to adhere to a higher standard of conduct than do

ordinary citizens, that as law enforcement officials they hold a

position of special public trust, and that each officer's

conduct blatantly violated that trust. Specifically, the Essex

board argues that this case is analogous to Durkin in that

Swallow's convictions are inconsistent with his position's

obligations and the requirement that he "behave in a manner that

brings honor and respect for rather than public distrust of law

enforcement." In a similar vein, the State board argues that

O'Hare's convictions undermined the central role of a State

18

police trooper as articulated in the rules and regulations of

the State police and undercut public confidence in the integrity

of the State police.

a. Violation of special public trust. The Essex board

argues that under Durkin forfeiture is required where a police

officer's violation of the law demonstrates a "violation of the

public's trust" and a "repudiation of his official duties."

Durkin, 83 Mass. App. Ct. at 119. Indeed, both boards posit

that the special position of trust police officers occupy in our

society must factor into the determination whether an officer

has violated a law applicable to his or her position. The State

board goes so far as to suggest that the commission of any crime

is contrary to the central functions of a law enforcement

official's position as a result of their "special position" in

our society and thus might result in forfeiture. We disagree.

First, the Essex board's reliance on Durkin for the

proposition that where a police officer violates the public

trust and shirks his or her official duties forfeiture is

mandatory is misplaced. In that case, forfeiture was required

where a police officer was convicted of assault and battery by

means of a dangerous weapon for shooting another officer with

his department-issued firearm. Id. at 117. Although the court

discussed the fundamental nature of the police officer's

position and noted that the officer had violated the public

19

trust by "engag[ing] in the very type of criminal behavior he

was required by law to prevent," forfeiture was ultimately

grounded on the factual connections between the officer's

position and the criminal activity. Id. at 118-119. Cf. Tyler,

83 Mass. App. Ct. at 112-113 (forfeiture not required where

firefighter's offenses lacked any factual connection to his

position). In short, Durkin is not a "legal link" case. Accord

Finneran, 476 Mass. at 720.

Second, we are not persuaded by the State board's argument

that law enforcement officials are an exception to the

proposition that pension forfeiture should not follow "as a

consequence of any and all criminal convictions" because of

their "special position" in our society. See Gaffney, 423 Mass.

at 5. Indeed, the State board posits that "given the nature of

the positions that troopers hold, the commission of any crime is

contrary to the central functions of their positions to enforce

the law and protect the public." This is precisely the kind of

unfettered breadth that we have consistently avoided. See id.

("Yet it is also apparent that the General Court did not intend

pension forfeiture to follow as a sequelae of any and all

criminal convictions"); Durkin, 83 Mass. App. Ct. at 119 n.5

("Notwithstanding the high standards placed on firefighters and

police officers, not every off-duty illegal act qualifies as a

violation of the laws applicable to his office or position"

20

[quotation and citation omitted]); Tyler, 83 Mass. App. Ct. at

112 (§ 15 [4] as currently written is "not so broad" as to

"engulf nearly every public official, especially police officers

and firefighters, convicted of any crime"). Regardless of the

high standards placed on police officers, "not every off-duty

illegal act qualifies as a violation of the laws applicable to

his office or position" (quotation and citation omitted).

Durkin, supra. Accord Tyler, supra. Indeed, § 15 (4) "requires

something more specific than a violation of a special public

trust in the particular public position." Garney, 469 Mass. at

393 (criminal conduct insufficient to justify forfeiture where

it is "merely inconsistent with a concept of special public

trust placed in the position or defiant of a general

professional norm applicable to the position, but not violative

of a fundamental precept of the position embodied in a law

applicable to it"). Were we to adopt the State board's

position, we would "expand the parameters" of § 15 (4) "well

beyond what the Legislature intended for it to encompass." Id.

Every legal link must be "embodied in a law." Finneran, 476

Mass. at 721, quoting Garney, supra.

b. Applicable "laws" under § 15 (4). Section 15 (4) is

clear and unambiguous: the Legislature intended that pension

forfeiture result only where criminal conduct underlying a

particular conviction involved a violation of the "laws"

21

applicable to the member's office or position. In determining

what this limitation means, we must give the language effect

consistent with its plain meaning and refrain from reading into

the statute "a provision which the Legislature did not see fit

to put there" or "words that the Legislature had an option to,

but chose not to include" (citation omitted). Canton v.

Commissioner of the Mass. Highway Dep't, 455 Mass. 783, 789, 794

(2010) (statutory language should not be "enlarged or limited by

construction unless its object and plain meaning require it"

[citation omitted]). Moreover, because § 15 (4) is penal in

nature, its language must be construed narrowly, "not stretched

to accomplish an unexpressed result." Finneran, 476 Mass. at

719–720, quoting Bulger, 446 Mass. at 174-175.

The State board urges us to conclude that the "laws"

applicable to the office or position of State police trooper

include the State police rules and regulations, issued by the

colonel of the State police pursuant to G. L. c. 22C, §§ 3 and

10, which function as a code of conduct. These regulations

require, among other things, that troopers avoid conduct that

brings the State police into disrepute and obey all of the laws

of the United States and of the local jurisdiction in which the

trooper is present. We decline to do so.

First, there is no indication that the Legislature intended

§ 15 (4) to be triggered by a violation of a rule, regulation,

22

professional oath, code of conduct, or other internal practice

or policy that does not have the force of law. Had the

Legislature so intended, it certainly could have included

language to that effect, as it did in a preceding section. See

G. L. c. 32, § 10 (2) (c) ("Any member who is removed or

discharged for violation of the laws, rules and regulations

applicable to his office or position . . . shall not be entitled

to the termination retirement allowance provided for in this

subdivision"). We will not conclude that such language is

implied where the Legislature has excluded it. See Canton, 455

Mass. at 789 ("where the Legislature has carefully employed a

term in one place and excluded it in another, it should not be

implied where excluded" [citation omitted]); State Bd. of

Retirement v. Woodward, 446 Mass. 698, 706 (2006) (language

appearing in one section of statute should not be read into

another section where it does not appear).

Second, the State board's reliance on Bulger and Buonomo

for the proposition that codes of conduct might serve as the

applicable "law" because they establish the standards governing

the norms of conduct and practice is misplaced. In Bulger, we

concluded that the "laws" applicable to the office or position

of clerk-magistrate include the code because "it establishes the

very standards governing the norms of conduct and practice

associated with such office," and the code has "the force of

23

law," i.e., it is just as binding on the court and the parties

as would be a statute. See Bulger, 446 Mass. at 177–178;

Buonomo, 467 Mass. at 671. See also Opinion of the Justices,

375 Mass. 795, 813 (1978) (Supreme Judicial Court has "the

authority by rule to establish standards of conduct for judicial

employees and officials"); Empire Apartments, Inc. v. Gray, 353

Mass. 333, 337 (1967) ("Rules of court have the force of law

. . ."); Berkwitz, petitioner, 323 Mass. 41, 47 (1948) (rules of

court "have the force of law and are just as binding on the

court and the parties as would be a statute"). The code of

conduct relied on by the State board is neither a court rule nor

a statute. Cf. G. L. c. 22C (applicable to State police). In

short, it is not a "law" for purposes of § 15 (4).

While the officers' actions were clear and serious

violations of the law, it does not automatically follow that

they are subject to loss of their retirement allowance by virtue

of either their heightened obligation to uphold the law or their

special position of trust in our society. Our case law is

consistent on this point -- a legal link requires in the first

instance a violation of an expressly applicable "law." See

Finneran, 476 Mass. at 721 (criminal conduct must directly

implicate statute that is specifically applicable to employee's

position); Garney, 469 Mass. at 391 (criminal conduct must be

contrary to central function of position as articulated in

24

applicable laws). See also Buonomo, 467 Mass. at 670-671

(sufficient legal link between convictions and office where

public official's criminal conduct violated fundamental tenets

of code); Bulger, 446 Mass. at 179 (same). In this case,

neither board has identified a law expressly applicable to

police officers that either Swallow or O'Hare can be said to

have violated. Thus, "[t]he critical alignment of crime and

office through an applicable law, as required by this narrow

statute, is simply not present." Garney, supra at 395. We

conclude that in these cases, where there are neither factual

links nor legal links between the officers' positions and their

convictions, forfeiture of their pension allowances is not

legally tenable.

Conclusion. We affirm the decisions of the Superior Court

judges affirming the District Court judges' decisions and

vacating the boards' decisions.

So ordered.