MARTIN B. KRAFT vs. POLICE COMMISSIONER OF BOSTON.

WILKINS, J. In December, 1982, in connection with his application for appointment as a Boston police officer, the plaintiff (Kraft) was required to complete two forms under oath. In each form, Kraft falsely stated certain information about his medical history. In one form, Kraft swore that he had never had any "nervous, mental, or emotional disorder of any sort," and failed to disclose, as the form required, that on five occasions between April, 1976, and March, 1978, he had voluntarily been a patient receiving psychological treatment in Veterans' Administration Hospitals. In the other

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form, Kraft answered falsely that he never had had nervous system problems, nervous conditions, or a mental illness and that he had never been a patient in a hospital. If he had answered affirmatively and truthfully, the form asked for details.

In March, 1983, Kraft was appointed a Boston police officer. He completed his one-year probationary term. During the next several years Kraft received various commendations and had an unblemished record. In June, 1988, the defendant police commissioner terminated Kraft's employment as a police officer "for the stated reason that Kraft had failed to disclose his Veteran[s'] Administration Hospital admissions in his answers to application questions" on the two forms.

In asking questions of Kraft that sought information about his admission to a facility for the care and treatment of mentally ill persons, the commissioner violated G. L. c. 151B, Section 4 (9A) (1988 ed.). That section provides in its second (and last) sentence, as set forth in the margin, [Note 1] that no application for employment shall contain any question or request for information concerning an applicant's admission to any facility for the care and treatment of mentally ill persons, subject to an exception not relevant here. [Note 2]

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Kraft brought this action pursuant to G. L. c. 151B, Section 9 (1988 ed.), challenging his termination as unlawful. His position, which a judge of the Superior Court agreed with, is that his discharge was for a reason proscribed by the first sentence of Section 4 (9A) (termination for failure to provide certain information), and that, although he lied about his hospitalization for mental illness, his discharge was improper because the questions concerning his hospitalizations for mental illness never should have been asked and, therefore, his untruthful answers to those questions could not properly be a basis for discharging him. [Note 3]

The commissioner has appealed from a Superior Court judgment ordering that Kraft be reinstated without loss of benefits or seniority, and awarding him damages for lost compensation and emotional distress, attorneys' fees, and costs. The judge stayed Kraft's reinstatement to active duty pending appeal. We granted Kraft's application for direct review and now affirm the judgment.

The commissioner had no authority to discharge Kraft for giving false answers to questions that the commissioner under law had no right to ask, and he does not argue otherwise. The commissioner argues rather that Section 4 (9A) cannot bar him from inquiring into the previous mental health hospitalizations of an applicant for a position in which the applicant, if successful, would be expected to carry a gun. [Note 4] Section 4 (9A) obviously does not make the exception the commissioner argues for, and we should not manufacture it judicially. The commissioner does have the responsibility to

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determine the conditions under which a police officer will qualify to carry a weapon. See St. 1906, c. 291, Sections 11 and 14, as appearing in St. 1962, c. 322, Section 1; G. L. c. 41, Section 98 (1988 ed.). He could have obtained information concerning Kraft's qualifications, however, without violating Section 4 (9A). [Note 5] The inconsistency the commissioner asserts between the clear prohibition of Section 4 (9A) and his necessary obligation to inquire into a police officer's qualifications to carry a firearm simply does not exist.

We reject the commissioner's further argument that, because Kraft voluntarily consented to the disclosure of all his medical records, he waived his rights. Rights set forth in Section 4 (9A) may not be waived. To rule otherwise would effectively negate the legislative purpose in enacting Section 4 (9A). See Spence v. Reeder, 382 Mass. 398, 413 (1981).

The commissioner argues that he is entitled to qualified immunity in carrying out a discretionary function in good faith. See Duarte v. Healy, 405 Mass. 43, 50 (1989); Gildea v. Ellershaw, 363 Mass. 800, 820 (1973). The short and complete answer is that, assuming that qualified immunity is available with respect to violations of G. L. c. 151B, Section 4 (9A), the commissioner had no discretion to violate the explicit prohibition of Section 4 (9A) against asking questions concerning any admission to a facility for the care and treatment of mentally ill persons. Whatever other problems of interpretation Section 4 (9A) has, the impropriety of asking about any hospitalization in a mental health facility, and the prohibition

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against discharging an employee for failure to provide an answer, were "clearly established" by the language of Section 4 (9A). See Duarte v. Healy, supra at 47-48. Cf. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (immunity under 42 U.S.C. Section 1983 [1982]).

Judgment affirmed.