Perez v. Department of State Police

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SJC-13245

NATHANAEL PEREZ vs. DEPARTMENT OF STATE POLICE.

Middlesex. October 3, 2022. - March 16, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,

& Georges, JJ.

State Police. Police, Suspension, Compensation. Public

Employment, Police, Suspension. Damages, Back pay.

Statute, Construction.

Civil action commenced in the Superior Court Department on

January 30, 2020.

The case was heard by Christopher K. Barry-Smith, J., on

motions for summary judgment, and motions to vacate the judgment

and for reconsideration were considered by him.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

David M. Bae for the plaintiff.

Daniel Brunelli for the defendant.

GEORGES, J. General Laws c. 30, § 59 (Perry Law), allows

the suspension without pay of a State employee who has been

indicted on criminal charges due to job-related misconduct, but

2

mandates back pay for the period of the suspension if the

charges subsequently are "terminated without a finding or

verdict of guilty." In this case, we are asked to decide

whether the remedy set forth in G. L. c. 30, § 59, must be

applied to a trooper who had been suspended from his position

without pay pursuant to article 6.2 of the State police rules

and regulations (art. 6.2), a regulation that applies

specifically to members of the State police.

The plaintiff, Nathanael Perez, is a State police trooper

who was suspended from his position pursuant to art. 6.2 after

he was indicted on charges relating to his performance in his

former position as a Springfield police officer. After the

charges against Perez were dismissed, he requested back pay

under the Perry Law. Perez contends that the Perry Law applies

to all State employees who have been suspended without pay

because of a criminal indictment stemming from job-related

misconduct. The State police maintain that the Perry Law is

discretionary; because the colonel of the State police (colonel)

suspended Perez pursuant to art. 6.2, which details disciplinary

proceedings for indicted troopers, but is silent with respect to

back pay, they argue that Perez is not entitled to compensation

for his period of suspension.

We conclude that when the colonel decided to suspend Perez,

he had discretion to choose whether to invoke the Perry Law,

3

which applies to civil servants, or to proceed under art. 6.2,

which is unique to the State police. Because the colonel opted

to suspend Perez in accordance with art. 6.2, Perez was not

entitled to back pay or other relief under the terms of the

Perry Law. Accordingly, we affirm the Superior Court judge's

order allowing the State police's motion for summary judgment

and denying Perez's cross motion.

1. Background. On March 27, 2019, Perez was indicted by a

grand jury on charges of perjury, misleading a police officer,

and filing a false report, in connection with actions he took on

April 8, 2015, in his then role as a Springfield police officer.

On that day, Perez had responded to reports of physical

altercations at two separate locations in Springfield. Both

incidents involved off-duty police officers. Perez drafted two

reports concerning the April 8 incidents, which mentioned the

presence of the off-duty officers at the first incident but

contained no mention of the off-duty officers' involvement in

the second altercation. The charges against Perez were based on

the contention that he knew off-duty police officers had been

involved in the second altercation, but intentionally had

omitted any mention of this from his report.

In the interim between the incidents in Springfield and the

indictments, Perez had been sworn in as a State police trooper.

As a result of Perez's indictment, State police Lieutenant

4

Colonel Philip R. Dowd notified Perez that the State police

would be conducting a duty status hearing1 to assess his fitness

for duty as a trooper, pursuant to art. 6.2.1.2 At the hearing

on March 29, 2019, the duty status board concluded that Perez

should be suspended without pay, see art. 6.2.2; the suspension

took effect the same day.

On January 3, 2020, Perez's motion to dismiss the

indictments was allowed. The motion judge concluded that the

grand jury were not presented with sufficient evidence to

establish probable cause that Perez had filed a false report.

Three days later, on January 6, 2020, Perez received notice of a

second duty status hearing. At that hearing, Perez was

reinstated to full duty, effective immediately, because of the

dismissal of the indictments.

Shortly thereafter, Perez sent an e-mail message to the

chief legal counsel of the State police, requesting that the

1 The employment disposition for a uniformed member of the

State police is referred to as the trooper's "duty status";

reviews of duty statuses are conducted at duty status hearings

by a duty status board, pursuant to art. 6. The duty status

board is charged with reviewing the facts presented at the

hearing, making findings, and making recommendations to the

colonel or to the superintendent of the State police, pursuant

to art. 6.2.4. Under art. 6.2.4, the duty status board has

discretion to recommend that a trooper be continued on full

duty, placed on restricted duty, suspended with pay, or

suspended without pay.

2 See note 7, infra.

5

State police compensate him for the approximately ten months

that he was suspended and also that the period of suspension be

counted toward his retirement service, seniority, vacation time,

and other benefits.3 The State police rejected Perez's requests

on the asserted ground that the Perry Law does not apply to

suspensions under art. 6.2. In their reply, the State police

asserted that the Perry Law is "permissive," in that an employer

may, but is not required to, suspend an indicted employee

pursuant to the Perry Law. They also argued that they had not

invoked the Perry Law when they suspended Perez, because they

had suspended him from active duty pursuant to art. 6.2; nothing

in the language of art. 6.2 requires that a suspended trooper

receive compensation if the trooper subsequently is vindicated.

Perez then commenced an action in the Superior Court,

seeking a judgment declaring that, pursuant to the Perry Law, he

was entitled to payment of past wages by the State police, and

to his lost seniority, for the period during which he had been

suspended without pay. The parties filed cross motions for

3 In his initial correspondence with the State police,

Perez's attorney cited G. L. c. 268A, § 25, a complementary

statute that applies to county, municipal, and school or

planning district employees, as the purported basis for

reinstatement of Perez's back pay. The State police noted in

response that the applicable statute for State employees is

G. L. c. 30, § 59, the Perry Law, rather than G. L. c. 268A,

§ 25. Since then, Perez has maintained that he is owed back pay

under the Perry Law.

6

summary judgment. Concluding that Perez was not entitled to

past compensation because he had been suspended under the State

police rules and regulations, and not under the Perry Law, a

Superior Court judge allowed the State police's motion for

summary judgment and entered a judgment declaring that Perez was

not entitled to compensation or to any other relief under G. L.

c. 30, § 59. Perez sought reconsideration of the judge's ruling

on the cross motions for summary judgment and to vacate the

entry of judgment. Both motions were denied. Perez appealed

from the denials to the Appeals Court, and we transferred the

case to this court on our own motion.

2. Statutory provisions. The issue before us involves the

interplay between the Perry Law, G. L. c. 30, § 59, and the

State police regulatory scheme for personnel administration.

a. Perry Law. General Laws c. 30, § 59, the Perry Law,

provides that the "appointing authority" of a State employee may

suspend the employee "during any period such . . . employee is

under indictment" for misconduct related to the employee's then-

current State employment or to any prior public office.4 G. L.

4 General Laws c. 30, § 59, provides:

"An officer or employee of the commonwealth, or of any

department, board, commission or agency thereof, or of any

authority created by the general court, may, during any

period such officer or employee is under indictment for

misconduct in such office or employment or for misconduct

7

in any elective or appointive public office, trust or

employment at any time held by him, if he was appointed by

the governor, be suspended by the governor, whether or not

such appointment was subject to the advice and consent of

the council or, if he was appointed by some other

appointing authority, be suspended by such authority,

whether or not such appointment was subject to approval in

any manner. Notice of said suspension shall be given in

writing and delivered in hand to said person or his

attorney, or sent by registered mail to said person at his

residence, his place of business, or the office or place of

employment from which he is being suspended. Such notice

so given and delivered or sent shall automatically suspend

the authority of said person to perform the duties of his

office or employment until he is notified in like manner

that his suspension is removed. . . .

"Any person so suspended shall not receive any compensation

or salary during the period of such suspension, nor shall

the period of his suspension be counted in computing his

sick leave or vacation benefits or seniority rights, nor

shall any person who retires from service while under such

suspension be entitled to any pension or retirement

benefits, notwithstanding any contrary provisions of law,

but all contributions paid by him into a retirement fund,

if any, shall be returned to him, subject to [G. L. c. 32,

§ 15]. . . .

"A suspension under this section shall not, in any way, be

used to prejudice the rights of the suspended person either

civilly or criminally. During the period of any such

suspension, the appointing authority may fill the position

of the suspended officer or employee on a temporary basis,

and the temporary officer or employee shall have all the

powers and duties of the officer or employee suspended.

". . .

"If the criminal proceedings against the person suspended

are terminated without a finding or verdict of guilty on

any of the charges on which he was indicted, his suspension

shall be forthwith removed, and he shall receive all

compensation or salary due him for the period of his

suspension, and the time of his suspension shall count in

determining sick leave, vacation, seniority and other

8

c. 30, § 59, first par. See St. 1962, c. 798. An employee "so

suspended" under the Perry Law "shall not receive any

compensation or salary" during "such suspension." G. L. c. 30,

§ 59, second par. If the criminal proceedings are terminated

without a guilty finding or verdict, the employee's suspension

"shall be forthwith removed" and the employee "shall receive"

back pay for the period of the suspension. G. L. c. 30, § 59,

fifth par. The Perry Law requires that the employee receive

written notice of the suspension, which automatically is in

effect by the employee's receipt of the notice. G. L. c. 30,

§ 59, first par. A copy of the notice also must be filed with

the Secretary of the Commonwealth. Id.

The Perry Law has had minor amendments since its enactment,

namely in 1963, see St. 1963, c. 829, when the written notice

requirement was added; in 1964, see St. 1964, c. 528, when the

Legislature broadened the types of indictments that permitted

suspension; and in 2004, see St. 2004, c. 149, § 63, when a

requirement was added that the employer notify the retirement

system of the suspension. Other than these amendments, the

Perry Law has remained unchanged since its enactment vis-à-vis

the authority it grants State employers to suspend employees who

rights, and shall be counted as creditable service for

purposes of retirement."

9

are indicted for job-related misconduct, and the relief it

requires if those employees are not convicted.

In 1972, the Legislature enacted G. L. c. 268A, § 25, which

is essentially identical in its operative language to the Perry

Law, and applies to county, municipal, and school or planning

district employees. See St. 1972, c. 257; Springfield v.

Director of the Div. of Employment Sec., 398 Mass. 786, 788

(1986). Since their enactments, both the Perry Law and G. L.

c. 268A, § 25, have been invoked on a consistent basis to

suspend public employees who have been indicted for job-related

misconduct in the Commonwealth. See, e.g., Benoit v. Boston,

477 Mass. 117, 119-120 (2017) (suspension of emergency medical

technician under G. L. c. 268A, § 25); Letteney v. Commissioner

of Commerce & Dev., 358 Mass. 10, 10-11 (1970) (director of

division of urban and industrial renewal of State Housing Board

was suspended under G. L. c. 30, § 59).

b. Article 6.2 and G. L. c. 22C. State police troopers

are exempt from the provisions of the civil service statute.

See G. L. c. 22C, § 10 (appointment of State police troopers is

exempt from requirements of G. L. c. 31). Instead, they are

governed by the State police statute, G. L. c. 22C, which

incorporates specific aspects of the civil service statute into

the governance of the State police. Under G. L. c. 22C, § 3,

the colonel has authority to promulgate rules and regulations

10

for the "government of the department" and the discipline of its

employees. See St. 1991, c. 412, § 22. The head of the State

police has wielded this authority in some fashion since 1922.

See O'Hara v. Commissioner of Pub. Safety, 367 Mass. 376, 380

(1975) (original rules and regulations were adopted from Manual

of Courts Martial of United States Army). Currently, the

colonel is authorized to "make rules and regulations for the

force, including matters pertaining to the discipline,

organization, government, training, compensation, equipment,

rank structure, and means of swift transportation." G. L.

c. 22C, § 10. Any member of the State police who violates these

rules and regulations "shall be subject to discipline and

discharge in accordance with said rules and regulations." Id.

"[A] properly promulgated regulation has the force of

law . . . and must be accorded all the deference due to a

statute." Borden, Inc. v. Commissioner of Pub. Health, 388

Mass. 707, 723, cert. denied sub nom. Formaldehyde Inst., Inc.

v. Frechette, 464 U.S. 936 (1983).

Here, there is no dispute that art. 6.2 has been

promulgated properly pursuant to the colonel's "broad grant of

authority" under G. L. c. 22C, which provides the colonel "a

wide range of discretion in establishing the parameters" of his

power to impose disciplinary policies on the State police force.

See Provencal v. Commonwealth Health Ins. Connector Auth., 456

11

Mass. 506, 514 (2010), quoting Levy v. Board of Registration &

Discipline in Med., 378 Mass. 519, 525 (1979). The Legislature

has recognized that the colonel has a need for such wide

discretion in ensuring that the State police are able to

accomplish their mission, based on their status as

"traditionally an elite force subject to more arduous duties

than other [police officers] and to quasi military disciplinary

regulations." O'Hara, 367 Mass. at 380. "The primary function

of the Uniformed Branch of the Massachusetts State Police is to

protect persons and property and maintain law and order. . . .

'[S]ervice in this branch is, or can be, arduous'" (citation

omitted). Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 310 (1976). As a result, the Legislature has acted to

accommodate the need for self-administering systems of

discipline for State police troopers, in conjunction with, but

separate from, the general civil service laws. See G. L.

c. 22C, §§ 3, 10. While the State police rules and regulations

have changed over the past century, this court consistently has

recognized their validity as a distinct substantive and

procedural system for day-to-day governance of the State police.5

5 See, e.g., Commissioner of Pub. Safety v. Treadway, 368

Mass. 155, 160-161 (1975) (upholding finding of State police

trial board that charge against uniformed member who received

stolen goods was supported by evidence); O'Hara, 367 Mass. at

377, 384 (upholding as "appropriate" State police rules invoked

12

Article 6, which contains regulations establishing

disciplinary procedures and temporary relief from duty for

uniformed members of the State police, details the procedures by

which such members6 may be investigated, and their misconduct

adjudicated.7 Article 6.2 authorizes a division commander, with

in suspending without pay trooper who became candidate for, and

then was elected to, local office); Concannon v. Commissioner of

Pub. Safety, 324 Mass. 503, 507 (1949) (petitioner's rights were

not prejudiced where plaintiff was discharged in compliance with

State police rules and regulations); Cournoyer v. Department of

State Police, 93 Mass. App. Ct. 90, 93 (2018) (deferring to

colonel's discretion in penalizing failure to meet State police

training requirements); Fisher v. Lint, 69 Mass. App. Ct. 360,

367-368 (2007) ("the State police trial board possesses the

authority and provides the procedural protections that

differentiates a quasi judicial board from one that merely

performs an administrative function").

6 Article 6 applies to "members," who are defined in art. 1

as "uniformed members." General Laws c. 22C, § 13 (b), also

explicitly references uniformed members. Uniformed members are

defined as members of the State police appointed pursuant to

G. L. c. 22C, § 10. For clarity, we refer to the uniformed

members of the State police as "troopers."

7 Article 6.2.1 provides, in pertinent part:

"A Division Commander, with the approval of the

Colonel/Superintendent, may convene a duty status hearing

relative to the member's duty status if:

"[t]he member is the subject of a criminal investigation,

is arrested or indicted or, if a criminal complaint or

warrant is issued against the member; or

"[t]he member is the subject of an internal investigation;

or . . .

"[e]xceptional circumstances exist which warrant such duty

status hearing."

13

the approval of the colonel, to convene a duty status hearing

for a uniformed member of the State police if the trooper is

arrested or indicted. At that hearing, the trooper may respond

to the allegations. See art. 6.2.2. Following the hearing, the

duty status board may recommend that the trooper either be

continued on full duty, placed on restricted duty, suspended

with pay, or suspended without pay. See art. 6.2.4. The duty

status board also may refer the trooper to the State police

surgeon for an evaluation of the trooper's fitness for duty, or

to the employee assistance unit for further intervention. All

duty status recommendations are subject to the colonel's

approval. See art. 6.2.5. Article 6.2 is silent regarding

whether members who have been suspended without pay are entitled

to receive back pay if the suspension is lifted.

At the time that Perez was suspended, a trooper whose

conduct had been adjudicated by a duty status hearing had the

right to appeal from the colonel's decision regarding the

trooper's duty status to the Superior Court; there was no

statutory exception granting troopers such as Perez rights of

appeal from duty status hearings to the Civil Service

Commission, as there are rights of appeal from trial board

hearings. See G. L. c. 22C, § 13, as amended by St. 2002,

14

c. 43.8 General Laws c. 22C, § 43, provides that "[a]ny person

affected by an order of the [State police]" may "appeal to the

colonel," who shall then grant a hearing and may "amend, suspend

or revoke such order." Any person "aggrieved by an order

approved by the colonel may appeal to the [S]uperior [C]ourt"

within fifteen days of the order. Id. See Doherty v. Civil

Serv. Comm'n, 486 Mass. 487, 495 (2020) (G. L. c. 22C, § 43,

expressly creates "internal appellate right[]" to hearing before

colonel that "provide[s] State police troopers protection

against less significant forms of discipline").

3. Discussion. We review questions of statutory

interpretation de novo. Hovagimian v. Concert Blue Hill, LLC,

488 Mass. 237, 240 (2021).

"A fundamental principle of statutory interpretation 'is

that a statute must be interpreted according to the intent of

8 The 2020 criminal justice act amended G. L. c. 22C, § 13,

by codifying the duty status hearing procedure in G. L. c. 22C,

§ 13 (b). Currently, G. L. c. 22C, § 13 (b), explicitly

provides that administrative suspension without pay from a duty

status hearing "shall not be appealable under [G. L. c. 31

§§ 41-45,]" of the civil service statute. The suspension may be

appealed to the Superior Court, as provided in G. L. c. 22C,

§ 43. In addition, a suspended member may seek further review

by the colonel one year from the date of the administrative

suspension, and every year after, or sooner if there is a

material change in circumstances. Moreover, the colonel's

review of the original order ultimately may be appealed under

the civil service statute. Compare G. L. c. 22C, § 13 (b), as

amended by St. 2002, c. 43, with G. L. c. 22C, § 13 (b), as

amended through St. 2020, c. 253, § 54.

15

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.'" Mahan v. Boston Retirement Bd., 490 Mass. 604,

613 (2022), quoting Harvard Crimson, Inc. v. President & Fellows

of Harvard College, 445 Mass. 745, 749 (2006). "[W]e begin with

the canon of statutory construction that the primary source of

insight into the intent of the Legislature is the language of

the statute." Deutsche Bank Nat'l Trust Co. v. Fitchburg

Capital, LLC, 471 Mass. 248, 253 (2015), quoting International

Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). If the

language is clear and unambiguous, it is conclusive as to

legislative intent. Deutsche Bank Nat'l Trust Co., supra.

The first paragraph of the Perry Law provides, in relevant

part, that a State employee "may . . . be suspended" by the

employer "during any period" in which the employee is "under

indictment" for misconduct related to the employee's then-

current State employment or to any prior public office. See

G. L. c. 30, § 59. Perez argues that the use of the word "may"

in the first paragraph of the Perry Law means that the colonel

has discretion only in deciding whether to suspend a trooper who

has been indicted for job-related misconduct. Perez contends

16

that, once a trooper has been suspended without pay for

suspected criminal misconduct related to the trooper's position,

the trooper falls within the scope of the Perry Law, which

requires the State police to reimburse the trooper for the

compensation the trooper did not receive while suspended.9

Conversely, the State police construe the term "may" in the

first paragraph of the Perry Law as an indication that the

colonel is permitted, but is not required, to invoke the Perry

Law in order to suspend a trooper who has been indicted for

misconduct related to the trooper's position or a prior public

9 None of the cases Perez cites addresses the issue we

confront here: whether the requirements of the Perry Law are

mandatory where State employees charged with job-related

misconduct are suspended pursuant to other statutory or

regulatory provisions concerning employee discipline. For

example, some of the cases upon which Perez relies are

inapposite because the State employees actually had been

suspended pursuant to the Perry Law, and thus the requirements

did apply. See, e.g., Madden v. Secretary of Pub. Safety, 412

Mass. 1010, 1010 (1992) ("suspension was based on G. L. c. 30,

§ 59"); Bessette v. Commissioner of Pub. Works, 348 Mass. 605,

606 (1965) ("The Commissioner acted under G. L. c. 30, § 59");

Indorato v. Contributory Retirement Appeal Bd., 20 Mass. App.

Ct. 935, 936 (1985) ("plaintiff's superannuation retirement

benefits were correctly denied under § 59").

In other cases, the remedy of back pay set forth in the

Perry Law was held not to apply to the facts of the suspension.

See, e.g., Brittle v. Boston, 439 Mass. 580, 589 (2003)

(employee's criminal proceedings were not considered terminated

for purposes of G. L. c. 268A, § 25). In addition, Perez cites

a number of trial court cases that are not binding precedent.

17

office;10 only if the colonel chooses to invoke the Perry Law

must the State police follow its mandates, including awarding

back pay. We agree.

This court consistently has interpreted statutory language

using the word "may" as "generally permissive, reflecting the

Legislature's intent to grant discretion or permission to . . .

authorize an act." See, e.g., Commonwealth v. Dalton, 467 Mass.

555, 558 (2014), citing School Comm. of Greenfield v. Greenfield

Educ. Ass'n, 385 Mass. 70, 81 (1982) ("the word 'may' does not

impose a mandate but simply authorizes an act"). See also

Commonwealth v. Chamberlin, 473 Mass. 653, 660 (2016) ("By using

the word 'may' here, the Legislature indicated no more than that

the government may, but need not, [take action] by using this

[statutory] tool"). Specifically, we have interpreted the word

"may" to be "permissive," in that actors are permitted to invoke

the legal authority, but are free to invoke and follow the

requirements of another authority if it is available to them.

See id.

In Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 123-

124 (2014), for example, this court concluded that although the

10That the State police properly could have used the Perry

Law to suspend Perez due to his indictment stemming from conduct

as a municipal police officer is not disputed; the issue is

whether the State police were required to apply the Perry Law in

imposing the suspension.

18

general civil service act, G. L. c. 31, §§ 41-45, and the Wage

Act, G. L. c. 149, §§ 148, 148A, 150, both involve the rights of

tenured employees, neither statute mandates that it is the only

path by which an aggrieved employee may seek redress. We

observed that the "language [in the civil service law] stating

that an aggrieved employee 'may' file a complaint with the

[Civil Service Commission] strongly suggests that the

Legislature has not granted exclusive authority over all

challenged employment actions to the commission" (emphasis in

original). Id. at 124. In reaching this conclusion, we relied

upon the determination that the two statutes "have distinct

purposes and, as a consequence, provide different remedies for

the violation of their statutory mandates." Id. at 126. The

language of the statutes at issue demonstrated "no intent on the

part of the Legislature" to preclude a suspension under a

different legal authority with different procedures and

remedies. Id. at 127.

In a similar vein, our case law interpreting G. L. c. 268A,

§ 25, which authorizes district, local, and municipal employers

to suspend employees who are indicted due to job-related

misconduct, further supports our interpretation that the Perry

Law is a permissive statute. The Appeals Court has examined the

interaction of G. L. c. 268A, § 25, which governs the suspension

of "district" employees such as school districts and regional

19

planning districts, and the provisions of G. L. c. 71, § 42D

(school district suspension statute). The school district

suspension statute provides that a superintendent "may, for good

cause, require the immediate suspension of any employee" for a

period of up to one month. The Appeals Court repeatedly has

determined that the existence of neither G. L. c. 268A, § 25,

nor the school district suspension statute precludes application

of one over the other.

In Dupree v. School Comm. of Boston, 15 Mass. App. Ct. 535,

540 (1983), for instance, the Appeals Court concluded that "the

remedy in [the school district suspension statute] does not

preclude the application of G. L. c. 268A, § 25." The court

reasoned that G. L. c. 268A, § 25, "provides a sensible

supplement by the Legislature to the provisions" of the chapter

of the General Laws concerning public school administration.

Id. Otherwise, "the only remedy available to remove a teacher

indicted for a drug felony from the payroll, or perhaps even

from the classroom, . . . would be dismissal under G. L. c. 71,

§ 42." Id. Accord Perryman v. School Comm. of Boston, 17 Mass.

App. Ct. 346, 350 n.7 (1983) ("where a teacher is suspended for

grounds set out in an indictment, the cause for the

suspension . . . will nearly always continue beyond the limited

suspension period contained in § 42D"). General Laws c. 268A,

§ 25, permits school district employers to suspend employees who

20

have been indicted for job-related misconduct, but, like the

Perry Law, it does not preclude school districts from choosing

to employ a different tool, the school district suspension

statute, which the Legislature also has afforded them for

disciplining their employees. See Serrazina v. Springfield Pub.

Sch., 80 Mass. App. Ct. 617, 618 n.4 (2011) (school district has

choice of which suspension statute to invoke).

We similarly understand the Legislature's use of the word

"may" in the Perry Law as permitting, but not requiring, that

the State police suspend a trooper who has been indicted for

misconduct in office consistent with the terms of the Perry

21

Law.11 If a State agency has a different power of suspension,12

independent of the Perry law, such as the power the State police

possess under art. 6.2, the State agency may choose to employ

that power and any procedural requirements thereunder.

The permissive use of the term "may" in the first sentence

of the Perry Law stands in contrast to the Legislature's use of

the word "shall" in the remainder of the provision. For

11Responding to a request for guidance on the proper

interpretation of the Perry Law in the years after it was

adopted, the Attorney General noted:

"Suspension of an employee [under the Perry Law] is only

permissive. The statute says 'may . . . suspend.' The use

of the word 'may' in a statute commonly imports

discretion. . . . I recognize that in most situations

where an officer or employee of the Commonwealth is

indicted for misconduct in connection with his office or

employment an appointing authority will wish to avail

itself of G. L. c. 30, § 59[,] and suspend the officer or

employee. Nonetheless, in exceptional circumstances an

appointing authority may have sound reasons for continuing

the employment of the indicted officer or employee. I find

nothing in the statute that requires a different

construction."

Rep. A.G., Pub. Doc. No. 12, at 164 (1967).

12Absent any legal authority granting a State agency a

specific procedure for suspending employees, the general civil

service statute would be applicable. See G. L. c. 31, §§ 41-45.

To suspend a tenured employee covered by the civil service laws

for more than five days, the employee must be given written

notice and a full hearing in front of the appointing authority.

See G. L. c. 31, § 41. Such suspension decisions are appealable

to the Civil Service Commission, G. L. c. 31, § 43, and the

commission's decision is reviewable by the Superior Court, see

G. L. c. 31, § 44; Bessette, 348 Mass. at 608 (noting that Perry

Law "was applicable to permit the suspension of the petitioner

without compliance with [the civil service hearing procedure]").

22

example, notice of the suspension "shall" be delivered in

writing and "shall" be filed with the Secretary of the

Commonwealth. G. L. c. 30, § 59, first par. Delivery of the

notice "shall automatically suspend" the employee. Id. The

suspended employee "shall" not receive compensation, G. L.

c. 30, § 59, second par., but "shall" be returned to the

position, and "shall" receive back pay, if the criminal

proceedings do not result in a guilty verdict or finding, G. L.

c. 30, § 59, fifth par. "It is axiomatic in statutory

construction that the word 'shall' is an imperative . . . ."

School Comm. of Greenfield, 385 Mass. at 81.

The Legislature's use of "shall" in the Perry Law

establishes procedural and remedial requirements to which State

employers (including the State police) must adhere only once

they have chosen to invoke the Perry Law in suspending an

employee. If a different legal authority is invoked when

suspending an employee, the provisions of the Perry Law are not

applicable.

"[I]t is our task, to the extent possible, to construe the

rule and the statute to constitute a harmonious whole consistent

with the legislative purposes disclosed, and to give reasonable

effect to both." Boston Police Patrolmen's Ass'n v. Boston, 367

Mass. 368, 373 (1975). In light of its plain language, we

conclude that the Perry Law does not preclude other, properly

23

promulgated legal authorities that authorize State employers to

suspend their employees, nor are the back pay provisions of the

Perry Law implicated where those employers invoke other legal

authorities when suspending their employees. See Boston Police

Patrolmen's Ass'n, supra.

The fundamental "purpose of [the Perry Law] is to remedy

the untenable situation which arises when a person who has been

indicted for misconduct in office continues to perform his

public duties while awaiting trial." Massachusetts Bay Transp.

Auth. v. Massachusetts Bay Transp. Auth. Retirement Bd., 397

Mass. 734, 739 (1986), citing Reynolds v. Commissioner of

Commerce & Dev., 350 Mass. 193, 194, cert. denied, 384 U.S. 1001

(1966), and Bessette v. Commissioner of Pub. Works, 348 Mass.

605, 609 (1965). Prior to the enactment of the Perry Law, an

appointing authority "had no power to suspend an indicted

employee save for the lengthy process of removal and suspension"

under the general civil service law. See Rep. A.G., Pub. Doc.

No. 12, at 174 (1963). See also G. L. c. 31, §§ 41-45

(detailing procedural requirements in civil service law for

disciplining employees). The Perry Law "addresse[d] this

problem by allowing for the temporary removal of such employees

from office, and by precluding the payment of compensation and

the awarding of retirement benefits during the period of their

suspension." Massachusetts Bay Transp. Auth., supra.

24

Otherwise put, the Perry Law "protects the public interest

by preventing State officials from engaging in their duties of

office while under the cloud of indictment. At the same time,

it protects the rights and interests of such officials by

providing for automatic reinstatement to their positions and

restoration of employment benefits upon vindication." Indorato

v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 935,

936 (1985). The distinct processes of the Perry Law accord with

its distinct purpose: that of a new tool that allowed State

officials to respond swiftly when their employees were indicted

for job-related misconduct, but that left employers liable for

compensation of their vindicated employees, and afforded those

employees recompense in lieu of more involved presuspension

procedures. See Reynolds, 350 Mass. at 195 ("In effect, with

respect to indicted officials . . . , [the Perry Law] merely

substitutes for the procedures of [G. L. c. 31, § 43 (a)], other

procedures affording due process of law to the suspended

official"). The initial expediency gained by an employer using

the Perry Law is balanced by the chance that a vindicated

employee will have to be made whole after termination of the

suspension.

By the same token, art. 6.2 allows the colonel to respond

swiftly to instances of a trooper who has been indicted for

misconduct in office, but its provisions for a hearing, the

25

multiple authorities involved, and the appeals process allow for

more deliberation before any final action is taken against the

trooper. Article 6.2 protects the interests of the trooper as a

member of a quasi military agency charged with ensuring law and

order in the Commonwealth, while also ensuring the colonel's

ability as head of that agency to discipline employees. Thus,

the Perry Law and art. 6.2 "have distinct purposes and, as a

consequence, provide different remedies" that balance the rights

and duties of employers and employees differently, yet

sufficiently. See Fernandes, 470 Mass. at 126.

Here, Perez is not entitled to back pay for the period of

his suspension, because he was suspended pursuant to art. 6.2,

not the Perry Law.

Judgment affirmed.