State Board of Retirement v. O’Hare, et al. (Lawyers Weekly No. 11-155-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-965 Appeals Court STATE BOARD OF RETIREMENT vs. BRIAN O’HARE & another.[1] No. 16-P-965. Suffolk. September 8, 2017. – December 15, 2017. Present: Rubin, Neyman, & Henry, JJ. Retirement. Public Employment, Forfeiture of pension, Police. Police, Regulations. Police Officer. State Police. 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. David R. Marks, Assistant Attorney General, for State Board of Retirement. Eric B. Tennen for Brian O’Hare. HENRY, J. Brian O’Hare was a sergeant with the Massachusetts State police when he committed the Federal crime of using the internet to entice a person under eighteen to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty. This case presents the question whether the State Board of Retirement (board) correctly ordered forfeiture of O’Hare’s retirement allowance under G. L. c. 32, § 15(4).[2] General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n no event shall any member [of the State employees’ retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.” Because we hold that O’Hare’s actions had a direct legal link to his position with the State police, we conclude that O’Hare’s conviction required forfeiture pursuant to § 15(4). Background. Brian O’Hare served with the Massachusetts State police for twenty years and, in 2006, held the rank of sergeant and was a patrol supervisor and shift commander. Between August, 2005, and February, 2006, O’Hare communicated online with an individual whom he believed to be a fourteen year old boy. O’Hare used a family computer while off duty to communicate with the “youth.” The youth was later revealed to be an undercover Federal Bureau of Investigation (FBI) agent. In February, 2006, O’Hare was arrested by the FBI after arriving at a prearranged meeting place to meet the youth for sexual purposes. In October, 2006, O’Hare resigned from the State police while under Federal indictment. In February, 2007, O’Hare pleaded guilty to one charge of using the internet to attempt to coerce and entice a child under the age of eighteen to engage in unlawful sexual activity, […]