RETIREMENT BOARD OF WATERTOWN v. DEIGNAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The retirement board of Watertown (board) revoked Joseph Deignan's pension rights based on his criminal convictions, pursuant to G. L. c. 32, § 15 (4). Deignan argues that there was no direct link between the convictions and his position as a police officer that would justify forfeiture. He also argues that G. L. c. 32, § 15 (4), is unconstitutionally vague as applied to him. We affirm the Superior Court judgment upholding the decision of the board.³

The pension forfeiture statute, G. L. c. 32, § 15 (4), provides that “[i]n 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.” Forfeiture “requires a ‘direct link’ between the criminal offense and the member's office or position, either ‘factual’ or ‘legal.’ ” Essex Regional Retirement Bd. v. Swallow, 481 Mass. 241, 249 (2019), quoting State Bd. of Retirement v. Finneran, 476 Mass. 714, 720 (2017) (Finneran). “In reviewing an administrative decision pursuant to a petition for certiorari, we review the entire record to determine whether the decision is legally tenable and supported by substantial evidence.” Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct. 538, 542 (2011).

Here, Deignan pleaded guilty in Federal court to unlawful possession of a controlled substance by fraud (21 U.S.C. § 843[a][3] [2012] ) and fraud in connection with identification documents (18 U.S.C. § 1028[a][7] [2012] ). During his Federal plea colloquy, Deignan acknowledged that he was employed as a Watertown police officer when he used the information from another person's driver's license to forge and fill more than one hundred false prescriptions for drugs. He also admitted that the driver's license had been confiscated from a motorist by another police officer and, pursuant to Watertown Police Department (police department) policy, turned over to him in his capacity as supervisor of the police department's traffic division. Deignan took the license that was entrusted to him as a police officer and used it for his own personal gain to obtain controlled substances by fraud. Thus, the crimes for which Deignan was convicted had a direct factual link to his position.

Deignan argues nevertheless that the link is indirect in the sense that the crimes were committed in his personal capacity while he was off duty and without the use of employer resources. “The nexus required by G. L. c. 32, § 15 (4), is not that the crime was committed while the member was working, or in a place of work, but only that the criminal behavior be connected with the member's position.” Dell'Isola v. State Bd. of Retirement, 92 Mass. App. Ct. 547, 552 (2017), quoting Durkin v. Boston Retirement Bd., 83 Mass. App. Ct. 116, 119 (2013). The connection between the criminal behavior -- use of another person's identity to procure drugs -- and Deignan's position as a police officer, is his exploitation of a motorist's driver's license obtained in his official capacity as supervisor of the traffic division of the police department.⁴ See Dell'Isola, 92 Mass. App. Ct. at 554 (correction officer's pension forfeiture upheld upon officer's conviction for cocaine possession while off duty, where he used his employment-related connection with inmates to commit crime). The board's decision to revoke Deignan's pension is therefore both legally tenable and supported by substantial evidence.⁵

Finally, Deignan argues that the pension forfeiture statute is unconstitutionally vague as applied to him. A law is unconstitutionally vague if it fails to give fair notice that the conduct engaged in was prohibited and is susceptible to arbitrary enforcement. See Caswell v. Licensing Comm'n for Brockton, 387 Mass. 864, 873 (1983). A law is not vague, however, “if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that [people] of common intelligence know its meaning.” Commonwealth v. Hendricks, 452 Mass. 97, 102-103 (2008), quoting Commonwealth v. Gallant, 373 Mass. 577, 580 (1977). Contrary to Deignan's contention, the language of G. L. c. 32, § 15 (4), placed him on fair notice that his misappropriation of a driver's license, entrusted to his care in his official capacity, in order to fraudulently obtain controlled substances, risked forfeiture of his pension.

Judgment affirmed.

FOOTNOTES

3.   Deignan initially sought review of the board's decision in the District Court, pursuant to G. L. c. 32, § 16 (3) (a). After the District Court judge reversed the board's decision, the board filed an action in the nature of certiorari in the Superior Court, pursuant to G. L. c. 249, § 4. The Superior Court judge ordered judgment on the pleadings in favor of the board, and this appeal followed.

4.   Deignan also argues that forfeiture is inapplicable in his case because his convictions did not involve “misconduct in office.” There is no requirement that the convictions must be for crimes of official misconduct. See Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 4-5 (1996). He also argues that forfeiture is inapplicable because he was retired by the time of his convictions. The authority he cites does not support the proposition that one may evade pension forfeiture for committing crimes applicable to one's position simply by retiring prior to conviction.

5.   Deignan also requests that we remand this case to the District Court so that a determination of the value of his pension benefits may be made and an analysis of this penalty, under the excessive fines clause of the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights, may be conducted. We decline to do so as the excessive fines issue was not pressed, litigated, or decided at any point prior to appeal. See Finneran, 476 Mass. at 723. Nothing we say here, however, precludes Deignan from raising the issue at any further proceedings in the trial court.