WILBUR BRITTLE vs. CITY OF BOSTON.

MARSHALL, C.J. On November 5, 1997, Wilbur Brittle, a suspended Boston police officer, pleaded guilty to a six-count Federal indictment, the culmination of a law enforcement investigation into his international heroin smuggling activities. Brittle now seeks back pay for the forty-month period preceding his plea of guilty during which he was suspended without

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pay. [Note 1] No law requires that result. We affirm the judgment of the Superior Court denying Brittle all compensation lost during his suspension.

1. Background. We summarize the undisputed material facts, paying particular attention to those recited by the Federal prosecutor at Brittle's plea colloquy. [Note 2] Beginning at least as early as 1992, Brittle, while serving as a Boston police officer, was an active participant in an international heroin smuggling ring, traveling to Asia to import heroin into the United States, recruiting other couriers and assisting in the planning of other smuggling trips. Laverne Cotton was the ring leader. In mid-1992, Brittle and Cotton had a falling-out: the two had "a physical confrontation," and Cotton obtained a protective order against Brittle. [Note 3] See G. L. c. 209A. Brittle then took a "hiatus" from Cotton's drug smuggling operation.

In May, 1994, Brittle resumed his illegal activities as a courier for Cotton, traveling to Asia to acquire large amounts of heroin. [Note 4] Shortly thereafter, Brittle and Cotton had another falling-out: Brittle "barreled his way" into Cotton's house, the two had "a physical confrontation," and Cotton obtained a second protective order against Brittle. The physical confrontation followed a "strong dispute" that commenced earlier in the day when Brittle delivered a suitcase of heroin to Cotton. Over the following days, Brittle made threatening telephone calls to Cotton, demanding payment for his most recent smuggling trip and threatening to inform the Drug Enforcement Agency of Cotton's

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operation unless she paid him for the heroin delivery. In response, Cotton sought charges against Brittle and, on July 8, 1994, a grand jury indicted Brittle on two charges: stalking, G. L. c. 265, § 43, and threatening to commit an assault and battery, G. L. c. 275, § 2. [Note 5] Brittle was immediately suspended from his duties as a police officer; the police commissioner of Boston notified Brittle of his suspension on July 13, 1994.

While the Commonwealth's indictments against Brittle were pending, Cotton and Brittle's illegal drug activities were under investigation by Federal law enforcement officials. A Federal grand jury were convened, and on June 13, 1996, Brittle and thirteen others were indicted by the grand jury on numerous drug-related charges involving conspiracy, importation of heroin, and possession of heroin with intent to distribute. At the time of the 1996 Federal indictment, Brittle remained suspended from his duties as a Boston police officer, and the Commonwealth's indictment against Brittle for threatening to commit an assault and battery on Cotton was still pending. [Note 6]

On November 19, 1996, while the Federal case was proceeding toward trial, the Commonwealth sought and obtained an order of nolle prosequi of its pending indictments against Brittle. The assistant district attorney explained the reason for seeking the nolle prosequi: the State and Federal charges were "directly related," Cotton was to be called as a witness in the Federal trial against Brittle, and if the State charge proceeded to trial as scheduled, Cotton would be required to testify about "the same issues." [Note 7] At the time, Brittle did not ask the city to remove his

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suspension, he did not claim that he was entitled to receive back pay or benefits, and he did not attempt to return to work.

On November 5, 1997, Brittle pleaded guilty in the United States District Court for the District of Massachusetts to all of the Federal charges. At Brittle's plea colloquy, the assistant United States attorney recited Brittle's activities in the Cotton drug-smuggling conspiracy, recited Cotton's activities, and explicitly referred to the earlier State charges triggered by the falling out between Brittle and Cotton over the payment for heroin. Immediately after his change of plea, Brittle submitted his resignation to the Boston police department.

In April, 1998, Brittle filed this action, seeking compensation pursuant to G. L. c. 268A, § 25. [Note 8] A judge in the Superior Court allowed the city's motion for summary judgment, reasoning that, although G. L. c. 268A, § 25, did not explicitly address circumstances where, as here, multiple indictments had been brought against a suspended employee, it would be inconsistent with the statute's underlying intent to award Brittle compensation. A divided panel of the Appeals Court reversed, concluding that this case was controlled by our decision in Madden v. Secretary of Pub. Safety, 412 Mass. 1010 (1992). Brittle v. Boston, 54 Mass. App. Ct. 820 (2002). It awarded Brittle back pay from the date that he was suspended, July 13, 1994, to the date that he was indicted on the Federal charges,

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June 13, 1996. [Note 9] We granted the city's application for further appellate review.

2. Discussion. Brittle contends that he is entitled to back pay for the entire period of his suspension because the State indictments, which initially triggered his suspension, terminated "without a finding or verdict of guilty." G. L. c. 268A, § 25. Although Brittle did plead guilty to the Federal indictments, he asserts that those indictments are "not relevant" to whether he is entitled to lost compensation while he was suspended. The relief he seeks is neither compelled by the language of G. L. c. 268A, § 25, nor consistent with the statute's purpose.

General Laws c. 268A, § 25, provides in pertinent part: "If the criminal proceedings against the [suspended employee] 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 . . . ." By its express terms, the statute contemplates that payment for a period of suspension shall occur if, and only when, the employee is entitled to removal of his suspension. The suspended employee, of course, is entitled to removal of his suspension, only when the "criminal proceedings" against him terminate "without a finding or verdict of guilty on any of the charges on which he was indicted" (emphasis added). Brittle was under indictment throughout the entire forty-month period of his suspension before he resigned. He was never eligible to perform any public duties during that time; he was not entitled to "remov[al]" of his suspension, and he most assuredly was not entitled to reinstatement during that forty-month period. [Note 10] "Criminal proceedings" against him did not terminate until he pleaded

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guilty to the Federal indictments on November 5, 1997, and those proceedings terminated in a "finding or verdict of guilty." G. L. c. 268A, § 25.

Brittle in effect asks us to construe the phrase "criminal proceedings" narrowly to encompass only the State court proceedings. There is no reason to do so. A statute should not be "unduly constricted so as to exclude matters fairly within [its] scope." Tilton v. Haverhill, 311 Mass. 572, 577 (1942), quoting Commonwealth v. Welosky, 276 Mass. 398, 401 (1931), cert. denied, 284 U.S. 684 (1932). Rather, "[i]f the language of the statute is ' "fairly susceptible [of] a construction that would lead to a logical and sensible result" we will construe [it] so as "to make [it an] . . . effectual piece[] of legislation in harmony with common sense and sound reason.' " Commonwealth v. Williams, 427 Mass. 59, 62 (1998), quoting Commonwealth v. A Juvenile, 16 Mass. App. Ct. 251, 254 (1983). The Legislature surely recognized that there are numerous circumstances, such as here, where an initial indictment may give rise to or be related to other indictments, as the fullness of the criminal conduct of a defendant comes to light. [Note 11] One indictment may spawn several, or a defendant may be convicted of charges arising from a course of criminal conduct on which multiple indictments are based, but not necessarily of each indictment arising

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out of that conduct. [Note 12] The Legislature reasonably withheld from the employee the right of removal of suspension (and corresponding back pay) only when "criminal proceedings" against him were "terminated" without a finding of wrongdoing on "any" of the charges against him. To cabin the term "criminal proceedings" to refer solely to proceedings concerning the initial indictment is thus inconsistent with the language of the statute, and with its purpose: "to remedy the untenable situation [that] arises when a person who has been indicted for misconduct in office continues to perform his public duties while awaiting trial." Springfield v. Director of the Div. of Employment Sec., 398 Mass. 786, 788-789 (1986), quoting Massachusetts Bay Transp. Auth. v. Massachusetts Bay Transp. Auth. Retirement Bd., 397 Mass. 734, 739 (1986). See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 n.3 (1986), quoting International Org. of Masters v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984) ("Our primary duty is to interpret a law so as to effectuate the intent of the Legislature in enacting it"). [Note 13]

Our reading of the statute is also consistent with the converse purpose of the statute: to ensure that a suspended public employee is fully compensated if no misconduct by him is established. See Bessette v. Commissioner of Pub. Works, 348 Mass. 605, 608 (1965) ("The statute fully protects the suspended employee upon his vindication . . ."). [Note 14]

Madden v. Secretary of Pub. Safety, 412 Mass. 1010 (1992),

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on which Brittle relies, is readily distinguishable. Madden was indicted on State charges and suspended. All the State charges were nol prossed, and there were at the time no other indictments pending against him; all "criminal proceedings" had terminated. Seven weeks later he was again indicted, this time on unrelated Federal charges. [Note 15] Within that seven-week period, Madden could have sought, and in fact did seek, reinstatement. He also sought "all compensation or salary due him." G. L. c. 30, § 59. In contrast, Brittle's State charges were nol prossed only after (and indeed because) he had been indicted on "directly related" Federal charges. Unlike Madden, Brittle's "criminal proceedings" did not terminate until he ultimately pleaded guilty. Had Brittle, like Madden, sought reinstatement when the State charge was nol prossed, his request to resume his duties as a police officer would undoubtedly have been summarily denied because of the pending Federal indictments. See Bessette v. Commissioner of Pub. Works, supra at 608 ("It is the ascertainable and indisputable fact of the indictment, quite apart from guilt, that makes continuance in office unsuitable"). Our decision today does not overrule Madden v. Secretary of Pub. Safety, supra. Post at 592. The result here is consistent with the holding in that case, which retains its full precedential value.

We need not decide whether we would reach the same result in a case where various indictments brought at different times or by different prosecuting authorities overlap in time but are unrelated. Here, there is an obvious and close relationship between the conduct that gave rise to Brittle's State indictments

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and the conduct that resulted in his Federal indictments. Both involve the Brittle-Cotton drug smuggling conspiracy. Brittle and Cotton were engaged in a violent dispute concerning money Brittle claimed he was due on the delivery of a suitcase of heroin to Cotton. His violent conduct led initially to the State indictments. As Brittle's illegal conduct came to light in full measure, State and Federal law enforcement officials coordinated their strategy against Brittle. Cotton was the complaining witness in the State indictments against Brittle. She was also a critical witness in Brittle's Federal trial and, according to the assistant district attorney, would testify to "the same issues" in both the State and Federal proceedings, i.e., to the conduct that ultimately ended Brittle's involvement with Cotton and her drug-smuggling operation.

It is of no consequence that the remaining State indictment was not fully detailed at the Federal plea colloquy, or that the Federal indictment was not laid bare in minute detail when the State charge was nol prossed. For it is abundantly clear from the representations of both the district attorney for the Suffolk district and the United States attorney that those two respective offices were proceeding in tandem precisely because the conduct giving rise to the State and Federal indictments was related. Had Cotton been subjected to cross-examination by Brittle's attorney in the relatively insignificant State case, the Federal indictment against Brittle might well have been compromised. Neither office would have accepted that risk, as any punishment of Brittle resulting from a conviction of international heroin smuggling would be far greater than, and indeed would eclipse, any punishment that Brittle might receive in the State proceedings. [Note 16] Nol prossing the State indictment to strengthen the closely related and more serious Federal indictment was not only reasonable, it would have been foolhardy for the district attorney to proceed otherwise. To grant Brittle the relief he seeks would provide a perverse incentive to prosecutors to pursue a less weighty State claim and possibly jeopardize a far

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more serious Federal case, or vice versa, in order to avoid the distasteful obligation of back pay to a subsequently convicted public employee. The plain wording of the statute forecloses any such result. Brittle may not benefit from his criminal conduct at the expense of the city's taxpayers merely because the prosecutors of his drug-related crimes cooperated to bring him to justice. [Note 17]

Because of our conclusion, we need not address the city's argument that Brittle should be equitably estopped from seeking back pay. See, e.g., Yetman v. Cambridge, 7 Mass. App. Ct. 700, 708-709 (1979) (city permitted to raise affirmative defense of laches, "an equitable defense consisting of unreasonable delay in instituting an action which results in some injury or prejudice to the defendant"). We note that the statute is silent as to the proper resolution of a claim by a suspended employee for back pay in circumstances where a city, acting in good faith, does not forthwith remove a suspension, and the employee does not seek reinstatement or back pay. The statute gives no indication that the employer has a duty to monitor the disposition of the "criminal proceedings," or that the prosecuting authority has any duty to advise the employer of an outcome favorable to the employee. The Legislature could reasonably have assumed that a suspended employee vindicated of every charge would promptly assert his right to removal of the suspension, or to receive compensation for the period of his suspension, or both. See Madden v. Secretary of Pub. Safety, 412 Mass. 1010, 1011 (1992) (suspended employee sought back pay ten days after entry of order of nolle prosequi).

Judgment affirmed.

COWIN, J. (dissenting, with whom Greaney and Spina, JJ.,

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join). The court today ignores the plain language and intent of a statute to reach a result it finds pleasing as a matter of policy. I respectfully dissent.

The final paragraph of G. L. c. 268A, § 25, provides, in relevant part:

"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 . . . ."

This language unambiguously renders both reinstatement and back pay contingent on the fate of the charges that gave rise to the suspension, and automatic if those charges are terminated without a finding or verdict of guilt. The court has, however, rewritten the statute (and, presumably, the cognate G. L. c. 30, § 59) to provide that back pay shall be contingent, not on the fate of the charges giving rise to the suspension, but on the removal of the employee's suspension and his application for reinstatement to his former position. The statute has thus been revised by the court to defeat its automatic and limited application.

In addition, the court has greatly broadened the scope of the statute by infusing it with a "relatedness" consideration. According to the court, the employee is entitled to removal of his suspension (and, therefore, to his back pay) only if the criminal proceedings against him, including those "closely related" to the proceedings under the indictment that gave rise to the suspension, are terminated without a finding or verdict of guilty. "Relatedness" now pervades the statute despite the fact that it is a consideration foreign to the text. "We will not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design." Commonwealth v. McLeod, 437 Mass. 286, 294 (2002), and cases cited. This court's authority to interpret and apply statutes "is limited by its constitutional role as a judicial, rather than a legislative body. . . . We cannot interpret a statute so as to avoid injustice or hardship if its language is clear and unambiguous and requires a different construction." Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534,

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539 (1996), cert. denied, 520 U.S. 1131 (1997), quoting Rosenbloom v. Kokofsky, 373 Mass. 778, 780-781 (1977). We are under a duty "to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Pielech v. Massasoit Greyhound, Inc., supra, quoting Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975). That the court believes that the Legislature should have included a "relatedness" concept does not authorize the court to do so itself, even to achieve a desired "good policy" result. The court does not direct attention to anything in the terms of the statute or its legislative history from which one could infer that such was intended.

In addition to legislating judicially to create a "relatedness" feature not present in the statute, the court never pauses to define what "related" means. The omission of this definition is glaring, for often charges against the same person are "related" in some sense. The court declares, ante at 588, that charges are "closely related" when the course of criminal conduct on which the indictments are based is "related," or when there is an "obvious and close relationship" between the conduct giving rise to the separate indictments, or when it is "abundantly clear" that the separate indictments are related. Ante at 587, 588. Thus, the court essentially states that "related" means "related," thereby providing little guidance to public employers and lower courts.

Regardless whether the State and Federal charges against Brittle were "related" in some way, they were not related for purposes of this statute. "Offenses are not related merely because they were committed by the same defendant, even on the same day." Brittle v. Boston, 54 Mass. App. Ct. 820, 823 (2002). It is only an indulgent reading of the record that permits the court to conclude that the State charges against Brittle were sought by Cotton "[i]n response" to the drug-related threats, ante at 582, that Brittle's illegal conduct "came to light in full measure," ante at 588, because of the investigation surrounding the State indictments, and that Federal and State authorities were "proceeding in tandem" or "cooperat[ing] to bring him to justice." Ante at 588, 589.

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Nor does the court let precedent prevent it from reaching its desired conclusion. In Madden v. Secretary of Pub. Safety, 412 Mass. 1010, 1011 (1992), we said that under the "unambiguous" language of the statute "[t]he phrase 'charges on which he was indicted' clearly refers to the charges found in the indictments that gave rise to the suspension" (emphases added). The court has overruled Madden. [Note Dissent-1] Moreover, the statute provides that when those charges are terminated without a finding or verdict of guilty, the employee's suspension "shall forthwith be removed" and the employee "shall receive" his back pay. Id. The court does not inform us why what was clear and unambiguous at the time of the Madden decision has become opaque and in need of refashioning. [Note Dissent-2]

We recognized, correctly, in the Madden case that it is our duty to apply the unambiguous statute as written: "Although the [city's] arguments are persuasive as social policy, these arguments are properly addressed to the Legislature." Id. at 1011. In the decade since this court issued the Madden decision, the Legislature could have, but did not, express disagreement with our reading of the statute by amending it. The court should not ignore its silence. [Note Dissent-3] See Roberts v. Enterprise Rent-A-Car Co. of Boston, 438 Mass. 187, 193 (2002).

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We interpret a statute "according to the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced." Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577 (1984). The court ignores the context in which this statute was passed and the situation for which it was intended. General Laws c. 30, § 59 (the so-called "Perry Law"), identical in its operative language to G. L. c. 268A, § 25, see Massachusetts Bay Transp. Auth. v. Massachusetts Bay Transp. Auth. Retirement Bd., 397 Mass. 734, 739 n.8 (1986), was enacted to rid the Commonwealth of indicted public officials continuing to hold office while under indictment. "The purpose of the statute is to remedy the untenable situation which arises when a person who

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has been indicted for misconduct in office continues to perform his public duties while awaiting trial." Id. at 739.

The restrictive language of the statute demonstrates that the Legislature purposely drafted a statute with a "narrow focus," id., and did not intend to act as broadly as the court would (were it to sit as a law-making body). Initially, only an indictment (and not a complaint) potentially invokes the statute. Thus, by its terms the statute is inapplicable to an employee prosecuted in the District Court for serious offenses such as motor vehicle homicide, indecent assault and battery on a child under fourteen years of age, intimidating a witness or juror, driving while under the influence of alcohol, assault with intent to murder, distribution of cocaine within a school zone, or carjacking. See G. L. c. 218, § 26 (criminal jurisdiction of District Court). An employee-defendant may choose to waive indictment and be prosecuted in the Superior Court by complaint, see Mass. R. Crim. P. 3 (a), 378 Mass. 847 (1979); again, the statute would not apply. Or, an employee originally prosecuted by complaint (to be superseded by indictment) may enter into a plea bargain pursuant to which the offense is reduced to a lesser one in the District Court; the statute would not apply here, either.

Moreover, the statute requires "misconduct in . . . office." Except for cases involving teachers and police officers, this phrase has been interpreted generally to exclude an employee's off-duty conduct. See Attorney Gen. v. McHatton, 428 Mass. 790, 792-793 (1999); Leavitt v. Lynn, 55 Mass. App. Ct. 12, 13-15 (2002); Perryman v. School Comm. of Boston, 17 Mass. App. Ct. 346, 349- 351 (1983); Dupree v. School Comm. of Boston, 15 Mass. App. Ct. 535, 537-539 (1983). Thus, the statute has been interpreted not to apply to a chief deputy sheriff indicted for bribery, Tobin v. Sheriff of Suffolk County, 377 Mass. 212, 213 & n.3 (1979), or to a school system human resource manager indicted for larceny over $250 and removal or concealment of a motor vehicle to defraud an insurer, Leavitt v. Lynn, supra. The statute is also inapplicable to elected, as opposed to appointed, officials. McGonigle v. The Governor, 418 Mass. 147, 149-150 (1994). In addition, the statute only states that the employee "may" be suspended, rather than "shall." It is therefore permissive, not mandatory.

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These restrictions on the statute's application signify that the Legislature intended to protect governmental employees by limiting the statute to misconduct in office and only to such misconduct as results in an indictment. Even in such situations, the appointing authority has discretion whether to suspend and, in order to effect suspension, that authority must comply with specific, detailed statutory requirements. [Note Dissent-4] In contrast, by the terms of the statute, nothing is required of the suspended employee, who is entitled to have his suspension removed and back pay restored automatically if the criminal proceedings are terminated without a finding or verdict of guilty. [Note Dissent-5] The employee has no burden to assure compliance with the statute by the appointing authority. That burden falls squarely on the appointing authority.

The reason for an "unpalatable" result, Brittle v. Boston, 54 Mass. App. Ct. 820, 822 n.2 (2002), is the design of the statute, not its application by a court. It is helpful to recall what this court stated when interpreting G. L. c. 32, § 15 (3A), which

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mandates forfeiture of retirement benefits by public employees convicted of certain enumerated offenses: "Even if the Legislature did not foresee the possibility of a public employee who might have been convicted under one of the two enumerated Massachusetts statutes being convicted under an arguably equivalent Federal statute, it is not our function judicially to amend the statute to cover this eventuality." Collatos v. Boston Retirement Bd., 396 Mass. 684, 688 (1986), citing Thacher v. Secretary of the Commonwealth, 250 Mass. 188, 190-191 (1924). Fortunately, the indictment of a public employee is a rare occurrence. It should not be a hardship for the appointing authority and the prosecution to communicate in order to be certain that the consequences of the dismissal or nolle prosequi of an indictment are understood. We should not, as the court suggests, ante at 588-589, interpret the statute so as to assist the interplay of Federal and State proceedings. Had the Commonwealth wished to delay its proceedings until after the disposition of the Federal charges, it could have sought to do so.

I may consider this result "unpalatable," Brittle v. Boston, supra. Nevertheless, it is this court's obligation to apply the statute as written. For these reasons, I would reverse the judgment of the Superior Court and enter judgment for Brittle in the amount of his regular compensation from July 13, 1994, to November 5, 1997. Should the Legislature decide that the statute is inadequate, it is its role to amend it. See Leopoldstadt, Inc. v. Commissioner of the Div. of Health Care Fin. & Policy, 436 Mass. 80, 92 (2002).