-: SJC-13245.
Nathaniel Perez V Department of State Police.
-: Okay, Attorney Bay, whenever you're ready.
-: Thank Your Honor.
Good morning, Your Honors.
May it please the court, David Bay,
on behalf of Trooper Nathaniel Perez
sitting in the front row in the audience.
This issue before the court today
is whether the State Police Trooper, Nathaniel Perez,
who is indicted and suspended without pay
or benefits due to an indictment,
is entitled to receive his back pay and benefits,
when said indictment did not result in a guilty finding.
Now pursuant to the Perry Law,
also known as General Laws Chapter 30, Section 59,
the position of Perez is that Section 59 of Chapter 30
requires that he be reimbursed
for his back pay and benefits
during the period of time when he was suspended
on the indictment, that was eventually dismissed.
-: But that begs the question,
if he was suspended under the Perry Law?
-: Yes, Your Honor,
and that goes to the primary issue in this case,
whether or not the Perry Law is optional.
And Your Honor, big picture-wise,
if this court were to follow the state police's position
that the Perry Law is optional, then the Perry Law,
essentially would have no purpose at all.
-: But that's not true.
Sometimes you have a situation,
you don't want the person at work
and you don't want to go through a process.
So you use the Perry Law
and if you decide to do so without a process,
then at the end of the day,
if the person isn't successfully prosecuted,
you get compensation.
-: I understand, Your Honor.
However, the Perry Law does not preclude a process.
The Perry Law does allow for a one letter
being provided to the employee
to affect the suspension.
Perry Law does not say that the agency
is not permitted to have a hearing
just like they did in this situation
and then make that determination, Your Honor.
-: Counsel, as I understand what you're arguing basically,
is that, an entity could use the Perry Law,
and maybe that's all they have is the Perry Law,
but if an entity has other procedures,
they then the Perry Law is not precluded.
It's not automatically not used
just because there are other procedures
in place for the employee.
-: Somewhat, Your Honor,
what I'm saying is that the state police
can not make a decision of,
we're gonna follow the Perry Law.
We're not gonna follow the Perry Law.
If that were the case,
if the state police were able to do that,
every other agency could do that as well.
-: Can you help me out as far as other agencies,
other Perry Law alternative Universes
and other, the state police,
they argue have their own suspension provision.
Do other agencies, police agencies
or other governmental agencies
have their own? If you know.
-: Your Honor, my experience is this, they do, Your Honor,
there is also a sister statute to the Perry Law
that applies to local towns and counties as well.
-: Did you cite to that in your brief?
-: Yes, Your Honor.
It's--
-: We'll find it if you did.
-: General Law Chapter 268A Section 25
and essentially the mirror image of the Perry Law
just applicable to town and counties.
Justice Gaziano: Thank you.
-: Although, can I follow up on Justice Gaziano's question?
'Cause so there may be a parallel to the Perry Law,
but are there other cases
where people have other procedures separate
and apart from either the Perry Law or that other statute?
Are there other agencies that have those procedures?
-: Your Honor, I'm sure that there are, Your Honor,
but I'm not saying that the Perry Law--
-: Unionized employees would always have,
anytime you have a collective bargain agreement,
there's gonna be a termination process
that you can't use automatically. Right?
Is the Perry Law one of those statutes
that overrides collective bargaining
or does collective bargaining override the Perry Law?
-: Your Honor I would suggests the Perry Law
would override any collective bargain.
-: Suggest or no. Is there?
-: I don't know for a fact, Your Honor,
but it is a statute, Your Honor, I mean it was enacted--
-: Gotta remember there's state government,
there's statutes that say when's collective bargaining
trumps a statute and when it doesn't.
So you need to, that's like a yes
or it's actually not an in...
Often it's defined by statute.
-: I'm unaware of anything in the statute
that states that it is.
Justice Gaziano: So is your argument
the state police regulation is ultra virus?
-: I'm sorry, Your Honor.
-: Is your argument that the the Perry Law
trumps the state police regulations?
-: Yes, Your Honor.
It does trump it, however it can be read
consist the State police regulations
Article 6 can be read consistently with the Perry Law.
-: Maybe that's where I'm.
'Cause I was wondering whether you were saying
it was ultra virus, but tell me
how they can be read in harmony.
-: Your Honor, the Perry Law provides the may
in the Perry Law,
which is really what it's issue here is.
Provides the state agency, like the state police,
an option to suspend an employee
who has been in fact indicted.
It doesn't require that they suspend him,
but they would say, if you want to suspend this employee
who has been indicted, you may do so.
But if you do so, you shall take these steps.
And that is the rest of the statute.
-: And it does say, provide notice,
but it doesn't say, provide notice
that this is pursuant to the Perry Law.
-: Correct, Your Honor.
It does provide notice, it requires that the employee
to give prior notice and that notice be filed
with the Secretary of State, Your Honor.
-: But aren't you saying, again,
following up on Justice Gaziano,
that the Perry Law remedy trumps anything else.
Meaning that, if you were fired for indictment,
you have to get your money back.
That's your whole argument.
Because the Perry Law says that,
so the Perry Law would trump all these other processes
out there on Remedy, right?
-: Yes, Your Honor.
But in that particular situation you're talking about,
I mean, if the person was terminated, Your Honor,
that Perry Law would not apply.
I mean, they would presumably been found guilty, Your Honor.
-: But, you see there's a difference between the Perry Law
and the police procedures.
There are two big differences.
One, the police procedures provide a hearing,
you know, they give you a real hearing
before they, you know, they stop paying you.
Right.
And the also the Perry Law provides that,
if you're indicted and you're not convicted,
you get your money back.
But the police procedures do the opposite.
They provide an alternative remedy,
which is you get rehired, but you don't get your money back.
So, you know, there are two different things going on here.
And just to push the question
and I'll turn it over to you,
but here, this guy was given a hearing,
the police officer was given a hearing.
Perry Law very purpose doesn't provide a hearing.
It just allows the governmental entity
to get rid of someone when they've been indicted,
and avoid all of the hearing process and arbitrators
and everything else, right?
-: Yes, Your Honor.
However, the Perry Law does not preclude a hearing.
And the hearing pursuant to Article 6 of the state police.
That is the may in the Perry Law, Your Honor.
The state police have a hearing,
where it is determined whether or not
the State trooper is suspended without pay
and then that hearing decision is approved by the Colonel.
-: But that's your argument that you're making this a hybrid.
Why is it the majors just either or,
you may proceed under the Perry Law.
And just as soon as the person is indicted,
suspend them without pay
and then wait till the process rolls up.
Or you may, if there's an alternative
procedural vertical use that.
And that's what the state police did here.
You're merging them together.
But where's your authority for that?
-: Well, Your Honor, it's right in the Perry Law,
the plain language of the Perry Law,
does not allow a state agency
to choose whether or not it follows the law.
It allows a state agency the option
of suspending an employee who has been indicted.
That is where the may go.
So may is not applicable to listen,
the state agency can choose whether or not
to follow the Perry law.
That is the main difference here.
-: I'm not sure I follow you.
If the statute says that
the employee may be suspended without pay
under the Perry law with no process whatsoever
other than the indictment or
the criminal process coming down,
and that's it, right?
Hard stop, right?
The person can be suspended? [Attorney David] Yes.
-: Without pay? [Attorney David] Yes.
-: And then depending, whatever happens after that,
if they were suspended under the Perry Law
and they're vindicated at the end, they get their back pay?
Attorney David: Yes, Your Honor.
-: Okay, so that's one vertical.
But why doesn't the may refer to that
there may be some other process,
like in this case the state police procedures,
where you can't read them harmoniously
because under the state police procedure,
you get processed, you get a hearing
you are suspended, and then at the end,
if you're vindicated and you're like,
in this case reinstated, you don't get that.
-: Your Honor, for two reasons, Your honor.
The plain language or the Perry Law does not allow
for a state agency to make a choice
as to whether or not to follow the Perry Law.
The way it reads does not give state agency
like state police that option.
But I would like to address one point you made here is that,
Article 6 in the Perry Law
can be read harmoniously together.
The Perry Law does not state that a state agency
like the state police cannot give a trooper a hearing.
-: And Counsel, wouldn't it be a fair statement
that if, say the notice had been given
and said, this is pursuant to the Perry Law,
but you've got Article 6 in the rules and regulations
and could not the trooper at that point say,
Well, I'm entitled to the process under Article 6.
Not withstanding that you said
you're applying the Perry Law.
-: I'm sorry, Your Honor, I'm not for helping you out.
(all laughing)
-: What I'm saying is that,
say the state police in this case made a notice
and said, "Under the Perry Law we're suspending you."
But now you've got all these procedures
and arguably rights for the state police
under their contract or under their articles here.
The state trooper could say,
"Yeah, you suspended me under the Perry Law,
"but you still have to give me the process
"that I'm entitled to in the regulations."
-: Yes, Your Honor.
Absolutely, that's an option as well.
But what I was also trying to say is that,
as the perry Law does not preclude a hearing,
the state police are free to codify that
within their own internal regulations, which they have.
And then after that hearing is--
-: They don't cross reference the Perry Law
and they don't say anything
that they're going to give you your money back if...
Right, they've got their own completely independent process
that doesn't reference the Perry Law,
that doesn't abide by the Perry Law.
They've just created their own universe.
-: They have, Your Honor, however,
I would also suggest Your Honor,
that their regulations can be read
consistent with the Perry Law
because there's nothing in the state police regulations
that addresses one way or the other.
What happens with an indicted employee
who is then not found guilty.
That's where the Perry Law comes in.
-: Attorney Bay, is there anything in the legislative history
that suggests that backs you up that saying that,
yes, the Perry Law is meant to cover all circumstances
and you can't just opt out of it.
-: Well, that's exactly what I was trying to find,
Your Honor.
Something that'd say that a state agent
can just choose not to follow it.
It's just not out there, Your Honor.
-: What about the new legislation that came up
on the police accountability statutes?
Attorney David: Yes, Your Honor.
-: How does that impact your argument?
-: I think you're referencing to Chapter 220C, Section 13,
Your Honor, and again, just like with Article 6,
the Perry Law can be read consistent
with General Laws 22C Section 13.
22 Section C, Section 13,
essentially codifies Article 6.
And in no location in 22 Section 13,
is the situation as we have here addressed
where an indicted employee, is then not found,
no finding of guilty is found as that employee.
-: That's evidence that the legislature
it recognizes that their independent entity
robbed essentially.
-: No, they can be read harmoniously together.
The trial court judge noted that
since it wasn't addressed in the new 22C Section 13,
that it should be held against us.
However, it's just not simply mentioned.
And I see that as the legislature saying, Okay,
well we don't have to address a situation
where the indicted employee is not found guilty
because we already have the Perry Law here.
So why would we address it again?
-: Listen another Lowy,
why don't you address what's going to be
the state police argument.
Which is that the rule 62 comes from
the enabling statute 22C Section 3, that's its source.
And that when you look at the Perry Law, the may is,
is as Justice George has suggested,
they may use it or they may not use it,
but if they do use it, a suspension under this section,
the section meaning the Perry Law,
any person, so suspended meaning,
so suspended under the Perry Law,
any such suspension, they're going to say,
that clearly indicates that the reimbursement,
if the criminal prosecution doesn't go anywhere
is under the Perry Law.
And they're going to argue that,
if the suspension isn't under the Perry Law,
then there is no reimbursement.
-: Yes, Your Honor, that goes back to the primary issue here
is whether or not the state police
have that option to do that.
And yes, 22C Section 3 provides the Cornel
with that power to create these rules
and internal rules and regulations.
But those internal rules and regulations
must be compliant with existing law such as the Perry Law
there's on the books.
For instance, the Colonel can't go
start making internal regulations within state police
that conflict with other other laws out there, Your Honor.
just like--
-: But they're gonna say that the regulations
comes from the enabling statute
so that the regulation doesn't trump the Perry Law,
the source of the regulation.
The delegation is from 22C Section 3.
-: Yes, Your Honor
I agree with you, Your Honor,
but I would suggest that just simply
the fact that the Colonel has that power,
the Colonel cannot create internal procedures and policies
that conflict with the existing law.
-: Can I ask one follow-up question?
Shift to your question?
Which is the legislative history.
The Perry Law is passed, what's the origin of it?
It has to do with a firing
of a high-level government official, right?
-: Yes, your Honor.
It was the first handle.
It was put forth by the Duxbury representative,
I believe his name was Joseph Perry or Justin Perry.
And it was a situation
where they had the commissioner of
I think the commissioner of public waterways
was under indictment.
And he was still operating in his official capacity.
And the Globe article that I identified from 1962,
that's as part of my addendum,
identifies that that is one of the reasons
why that Perry Law was being put forth.
-: So does it have a distinct purpose,
which is you've gotta sort of a high-level
government official and you want to get him or her
out of the job immediately without any process
besides a notice.
So it has a sort of a distinct aspect to it.
Do you agree with that or?
-: Your Honor, that's why it was initially created.
I mean that is how the court has treated it as well.
I think the language is the,
to deal with the untenable situation,
where you have someone in a position of a public employment
who is also performing
their duties but also being indicted.
They wanted an opportunity to have that person
not be in their official capacity anymore.
That is the purpose of it, Your Honor.
But it also, Your honor,
in that same vein as the court has addressed this
and as this court specifically has addressed it,
is that the converse should also be true,
a fundamental fairness.
If this individual is indicted and they're suspended,
if they're not found guilty,
then they should receive their back pay
and their back benefits.
But Your Honor, I think the really,
the central argument here though, Your Honor,
I need to keep going back to it because--
-: Wait a minute, I'm sorry.
When I hear I need to go back to it,
and we past time, we're gonna, I'm ask you to stop.
Attorney David: ] I'm sorry,I didn't even realize that.
-: No, no, no problem. Thank you.
Attorney David: Thank you very much Your Honors.
-: And I'll ask Attorney Brunelli.
-: Good morning. May it please the court.
My name is Dan Brunelli.
I am Staff Counsel for the Department of State Police.
The decision of the spirit court judge
to award summary judgment to the department,
should be affirmed as there was no error of law.
It's a department's position that Chapter 30, Section 59
is a discretionary statutory tool
or remedy that state agencies can use
based on the plain language of the statute,
the legislative history,
and then subsequent legislative enactments.
-: Can you help us out as far as other state agencies
who else have inner logs to the Perry Law?
-: I was unable in the case law
to find any equivalent state agency.
You have the case law talking about removal
through civil service
after a suspension of the Perry Law is done.
But beyond the Department of State Police,
I was unable to find any case law of other state agencies
that have a temporary removal statute
as a result of an indictment or misconduct.
I would note that while the Article 6 is dated 2001,
there is case law from the 70s and the 1940s
that relate to the department's removal statutes
and trial board statutes,
specifically O'Hara versus the Commissioner Public Safety
from 1971 in which talks about removal because of misconduct
or crimes or violations of rules
and regulations and also Concannon versus--
-: So the executive branch doesn't have any processes
for terminating non-union employees.
They don't have their own internal procedures.
-: Well, I think there's a difference
for the Department of State Police,
there's a difference between temporary removal from--
-: I understand the state police process,
but if I work in health and human services
and I am an executive employee,
I'm not in a union and I get terminated.
There are no internal procedures
that you're aware of for those.
And I mean we've got all of government out there,
most of the state,
a lot of them are in unions and unions have processes.
Again, I'm gonna ask you the same question
I asked Mr. Bay, which is does the union trump,
do we know whether
collective bargaining trump's the Perry Law
or the Perry Law trump's collective bargaining?
Is that one of those statutes that addressed?
-: So what I would say on the case law
is that prior, this court has found that
it's a temporary removal statute,
that it's not a termination statute.
If an individual is convicted
and then wants to return to service
or if they're not convicted a state agency
or the functional municipal
equivalent under 268A, section 25,
which is the same language,
they can still go through their normal processes.
And specifically that is the case of Brighton strike
that Commissioners of Civil Service
versus municipal court of Brighton District Court.
Justice Kafker: What's the site for that?
-: I don't have it in front of me, I apologize.
-: Is that an appellate position?
-: That's brittle, you said?
-: No, that is the Commissioners of Civil Service
versus the Municipal Court of Brighton District.
And in that particular case,
the Boston Police Commissioner,
temporarily removed an individual from at office
as law enforcement officer for the City of Boston
because he was indicted.
That was done pursuant to the municipal
equivalent to 68A section 25.
-: Is this an appeals court decision?
-: I believe so, yes.
-: I vaguely remember this.
-: And then he was found not guilty.
The commissioner at that point said,
"Well, even though you're not found guilty
"based on the evidence I'm moving to discharge you."
They went through the civil service process of Chapter 31
and the court upheld that
even though he was found not guilty,
they could still discharge
because of the civil service jurisdiction.
The civil service could just discharge him
despite the fact that he was found not guilty.
So there are removal statutes.
I think the key distinction here is that it's not a--
-: Can I just push you then?
'Cause again, the civil service laws
in some respects apply to a huge number
of executive branch employees.
So, does that Brighton case
say then that the civil service law,
you can go the civil service route
or you can go the Perry route?
-: No, there are two distinct things.
I think if someone is being suspended under the Perry Law,
based on the plain language of the statute,
there's no review of that decision.
The first paragraph says,
again, there's the discretionary may,
but then when it talks about notice,
it said notice shall be given via letter
and also service to the Secretary of State
and the suspension becomes automatic.
That's all it takes.
Is there an indictment,
an invocation that we're going to use the Perry Law?
Here's a notice that we're using the Perry Law.
-: But it doesn't say they have to,
the statute doesn't say that the notice
requires the invocation of the Perry Law.
-: I would say read together with all five paragraphs
where they're talking,
they may suspend under the statute.
Notice of said suspension has to be given.
And that the second and third paragraph,
when they're talking of the ramifications of that,
they say anyone so suspended,
a suspension under the statute.
And I think when you have that language,
it means that it was a discretionary tool
that state agencies could use but not do not have to use.
I think we're in a very different position
if the legislature said anyone suspended
as a result of an indictment
should be given these rights.
They don't say that.
They say anyone suspended under this section,
which I think based on the plain language
is a crucial, crucial distinction.
-: Can I ask you about that then
because the last paragraph of the Perry Law
does not say suspended under this section
or so suspended as the other paragraphs do.
Instead it just says,
"If the criminal proceeding
"against this person suspended are terminated,
"he shall receive all compensation."
-: And I acknowledge that, but I think it does have,
as a trial court judge pointed out,
it has to be read harmoniously together.
-: Right, and I guess my question for you is,
if it's read harmoniously with the rest
and the rest said,
so suspended under this section
and this one doesn't,
usually that means something in statutory construction.
Usually in statutory construction
where the legislature has chosen in other versions
to note the suspension under this section
and doesn't specifically under this last paragraph,
it means something.
-: I would agree if the 30, Section 59
contained multiple avenues,
multiple types of suspension,
but where Section 59 relates specifically
to a invoking the Perry Law
to suspend someone without pay that,
so that suspended in the last paragraph
still has to be read
and relates back to the third paragraph,
the second paragraph and the first paragraph
where it talks about so suspended.
Where there's only that portion of the statute,
there's no other alternatives under 59.
It's one procedure that it read
a suspension under the statute
has to receive their back pay.
Not anyone suspended because of an indictment
receives back pay.
-: [Justice Wendlandt] Even though
that's literally what it says.
-: Because of the narrowness of the statute.
I would say that it has to be read that way.
-: Counsel then would you disagree with your brother's view
that if a suspension were imposed under the Perry Law
that the person that was being suspended
could then invoke the procedures of another vertical
to get a hearing?
-: I would argue, no, because it would be futile.
There's no exception under the Perry Law.
There's no right of a hearing.
There's no right of appeal to the trial court
or the direct appeal to the appeals court.
If you are indicted and you are suspended
under the Perry Law,
it's indefinite until that indictment is removed.
-: Right, but the suspension could be removed
before the indictment's cleared up
if it's going under the state police procedures,
couldn't it?
-: If it's under the Perry Law, it's not.
I would suggest based on the plain language
that if you are invoking the Perry Law,
that suspension without pay
is in force until that indictment is cleared.
-: But you're saying then that the procedures
the state police have for suspension
or termination would not apply at all?
-: Correct, and I just to be clear,
there's two distinct for the Department of the State police.
There's two distinct things here.
There's the duty status,
which we use in this case,
which is we say because of maybe an internal event
like an internal affairs investigation or an external event,
criminal complaint issued arrest or indictment.
We have a question of whether you should be fit for duty
and carry on the responsibilities
of a law enforcement officer.
Therefore, we have this procedure
where you get a pre-deprivation hearing,
you can make your case.
The board has discretion of four choices, full duty,
restricted duties,
suspended with pay or suspended without pay.
And there's also a right of appeal
that is different than termination,
where termination happens or discipline happens
as a different part of Article 6.
That's the trial board process.
-: And under the statute though,
there's nothing in the statute that says that the employer
cannot change his or her mind
about the suspension pending indictment.
-: Under the plain language. Yes, I would agree with that.
-: Can you address the impact
of the new police accountability legislation
on legislative intent?
-: So I would say that if the court accepts
my brother's arguments
that they can be viewed together going forward,
I would suggest there is conflict
now based on 22C Section 13 part B,
in that the legislature essentially codified Article 6.
And it says, "If you are indicted,
"criminal complaint issued against you,
"if you're referred to a prosecution agency
"for an investigation or other means,
"Colonel can suspend you without pay."
Prior to doing that,
you have to get a hearing similar to Article 6.
The legislature sought it fit
to include that for the first year,
if you're suspended without pay,
you cannot appeal that to the Civil Service Commission
under Chapter 31, Sections 41 through 45.
However you can appeal it,
pursuant to mass General Law at 22C, Section 43,
which says, "Anyone that's aggrieved
"by the order of a colonel
"has a right to another agency hearing.
"If you're still aggrieved
"by that secondary agency hearing
"by the Department of State Police,
"you can appeal that to the superior court
"under 30A review."
They included that in the statute
and then they also included the final part
that says, "If you're still suspended after a year
"and there's been a material change in circumstances,
"you can petition the Colonel again,
"ask for another hearing after that year,
"if you were still suspended without pay,
"you can then appeal
"to the Civil Service Commission
"pursuant to Sections 41 through 45 of Chapter 31."
So I would suggest that there is conflict going forward
where you have the legislature
defining specific requirements
for the Department of State Police.
If they want to suspend
someone without pay pursuant to an indictment.
And then none of that is mentioned under the Perry Law.
So if we invoke the Perry Law,
which is notice, automatic no hearing going forward
until the indictment is reviewed,
you're then in conflict with Section 13 of Section B.
And so where you have that tension
and where the legislature sought it fit,
not to mention Chapter 30, Section 49,
when it wrote the new Section of Chapter 13.
The conclusion from that I would suggest you can draw
is that the Perry Law is discretionary.
That it's a remedy that it can be used,
but it's not automatic.
-: Otherwise it would've repealed the Perry Law
because it would've been inconsistent
since there's no right to a hearing.
-: It would repeal the Perry Law to the department.
I would say it would not repeal the Perry law in whole.
It would just say that if you're using 13B,
you're not using the Perry Law,
you're using the department's procedures
that has been laid out by the legislature
that was codified in Article 6.
And you're not using the Perry Law in that situation.
-: Counsel, I have a question about paragraph 3
of the statute.
It says, "A suspension under this section
"shall not in any way
"be used to prejudice the rights of the suspended person
"either civilly or criminally."
What do you think that means?
-: I would say that based, there's again,
I didn't see any case law earlier to that,
but the fact that they were removed from service
cannot be used in the criminal prosecution
against them.
Justice Cypher: But what about the civil part.
-: That a judge or if there's a civil litigation
related to the position of that,
that the judge or jury could not draw a negative inference
that they were suspended pursuant to the Perry Law.
Justice Cypher: But you would say
it'd have to be a a court case.
-: Correct, that's how I would feel.
-: Not, it wouldn't be the regulations
or any new process system
that's been set up internally in the department.
-: No, I would say civilly or criminally
would be that you couldn't relate
to specifically a court process.
And then the final point that I would like to make is that
well, that the case law is limited on this,
I would suggest, well, it's not exactly similar.
The case at this court decided last year of more
versus the executive office of the trial court
has some precedent in this type of case,
where you have this court found in that case,
that the trial court administrator pursuant to
219, 211B or 219B,
whatever their enabling statute was,
the trial court could promulgate regulations
related to the removal of trial court employees.
In that particular case,
this court found that,
because they had promulgated regulations to that statute
that warranted a removal without pay,
with no avenue for back pay.
That that was fine based on the enabling statute.
And I would suggest it's a similar position here
where the state police has its own enabling statute
where it's promulgated regulations that include
that the step process of a notice predation hearing
and then a writer review it is permissible
under that enabling statute in the Perry Law
is discretionary.
Seeing no further questions, I would rest on my brief.
-: SCJ-13269
Le Fort Enterprises, Inc V Lantern 18, LLC and others.