Perez v. Department of State Police ( 2023 )

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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.