Attorney General v. McHatton

705 N.E.2d 252, 428 Mass. 790, 1999 Mass. LEXIS 22
Massachusetts Supreme Judicial Court·Decided February 4, 1999·Published·Cited by 13 cases

Opinion

Greaney, J.

The issue in this case is whether felony convictions of the defendant, while he was a police officer in the city [791] of Chelsea, of Federal income tax evasion constitute “misconduct in office” under a provision of the Chelsea city charter thereby disqualifying him from holding the elective office of city councillor. We conclude that the defendant is barred from holding the office.

The background of the case is as follows. In 1975, or thereabouts, the defendant was appointed a police officer in Chelsea, and in the mid-1980’s, he was promoted to the rank of captain and became commander of the vice squad.

On August 20, 1993, after a jury trial in the United States District Court for the District of Massachusetts, the defendant was convicted of six felony counts of filing false income tax returns.1 The charges covered the tax years 1987 through 1992, and involved $51,314.36 in unreported income from electrician and snowplowing businesses conducted by the defendant. The parties stipulated that the defendant’s failure to report this income resulted in a tax loss of $14,368.02 to the United States government. In addition, the sentencing judge found that the total tax loss from the defendant’s filing false tax returns was approximately $43,103.95, a sum which reflected the judge’s determination of additional unreported income for the tax years 1974 through 1985. (These years were not the subject of indictments.) The defendant was sentenced to a term of one year in prison, an additional year of supervised release, and he was ordered to pay a $10,000 fine. The defendant’s sentence was upheld by the United States Court of Appeals for the First Circuit in an unpublished decision.

On December 15, 1993, the defendant was notified by the receiver of Chelsea that, because of his felony convictions and prison sentence, he had been removed from his office as a member of the Chelsea police force by operation of G. L. c. 279, § 30, which automatically removes from public office any person sentenced to prison for a felony.

In 1994, the voters in Chelsea approved a new city charter that replaced the receivership that had been overseeing the city with a city council and city manager form of government. Section 9-6 of the charter is entitled “Disqualification from Office,” and provides, “Any individual who has been finally convicted of a criminal offense involving misconduct in any [792] elective or appointive public office, trust or employment at any time held by him shall not be eligible to serve in any other elective or appointive office or position under the city.” The Legislature subsequently enacted the new charter, and it was signed into law by the Governor. See St. 1994, c. 103, § 1.

In May, 1997, the defendant obtained the necessary documents from the Chelsea city clerk to seek nomination as a candidate for city councillor from district 1. The defendant subsequently submitted sufficient signatures to qualify for the ballot. No registered voter of district 1 filed a challenge under G. L. c. 55B, § 7, to the defendant’s candidacy, and in the election held on November 4, 1997, he received the greater number of votes for the office of district 1 city councillor.

The Chelsea city manager requested that the Attorney General bring an action in the nature of quo warranto under G. L. c. 249, § 9, to bar the defendant from taking office. The Attorney General filed an action under that statute in the Supreme Judicial Court for Suffolk County seeking a declaration that the defendant was ineligible to take office as a city councillor and an injunction preventing him from doing so. A single justice of this court transferred the case to the Superior Court under G. L. c. 211, § 4A. A preliminary injunction was thereafter entered in that court enjoining the defendant from taking office or serving as a city councillor. The parties then submitted a statement of agreed facts together with cross motions for summary judgment. A judge in the Superior Court granted the defendant’s motion, denied the Attorney General’s motion, and entered a judgment dismissing the action. The judgment has been stayed pending the Attorney General’s appeal which we transferred to this court on our own motion.2

The phrase “misconduct in any elective or appointive public office, trust or employment” in § 9-6 of the Chelsea city charter also appears in G. L. c. 268A, § 25, the statute providing for the suspension of public officials and employees who engage in such misconduct. It should be presumed that the Legislature, in approving § 9-6 of the Chelsea city charter, intended that the phrase be interpreted and applied in a manner consistent with existing case law construing G. L. c. 268A, § 25, and similar provisions in related areas. See Andover Sav. Bank v. Commis[793] sioner of Revenue, 387 Mass. 229, 240-241 (1982). With respect to § 25, the Appeals Court has recognized that, although “a crime arising from an employee’s off-duty conduct is not generally considered misconduct in office .... [t]here are. . . circumstances where the crime charged, no matter where or when performed, is so inimical to the duties inherent in the employment that an indictment for that crime is for misconduct in office.” Dupree v. School Comm. of Boston, 15 Mass. App. Ct. 535, 537 (1983). See Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 350-351 (1983) (indictment of two teachers for welfare fraud constituted “misconduct in office” because lying to, and stealing from, the public violated a teacher’s position of special public trust). In construing the phrase “misconduct in office” appearing in G. L. c. 121B, § 6, governing removal of members of housing authorities, we have said that such misconduct includes the “intentional violation of a known and significant rule or duty inherent in the obligations of [the] office.” Bunte v. Mayor of Boston, 361 Mass. 71, 76 (1972). In construing the phrase “misconduct ... in their offices” appearing in the Massachusetts Constitution, Part n, c. 1, § 2, art. 8, concerning the impeachment of State officers, the Justices rejected the view that the phrase excluded acts of misconduct that were “in no way related to the office held or the duties of said office,” Opinion of the Justices, 308 Mass. 619, 621 (1941), and they went on to state that the phrase encompassed misconduct that “can be said reasonably to render [the officer] unfit to continue to hold [his] office.” Id. at 627.

There is case law pointing out that police officers voluntarily undertake to adhere to a higher standard of conduct than that imposed on ordinary citizens. Citing four previous decisions of this court,3 as "but a sample” of the law on the obligations of police officers, the Appeals Court has said:

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Attorney General v. McHatton, 705 N.E.2d 252, 428 Mass. 790, 1999 Mass. LEXIS 22 (Mass. 1999).

705 N.E.2d 252 (Attorney General v. McHatton) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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