Opinion
21-P-629
02-24-2022
CRAIG LAMBERT v. POLICE CHIEF OF HAVERHILL & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008) .
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Craig Lambert, a retired Haverhill police officer, applied for a Law Enforcement Officer Safety Act identification card (LEOSA card), which would allow him to carry firearms across State lines. See 18 U.S.C. § 926C. The request was denied by the police chief, and Lambert filed a complaint in the Superior Court in the nature of certiorari pursuant to G. L. c. 249, § 4.On cross motions for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), the judge denied Lambert's motion and allowed the defendants' motion. This appeal followed. We affirm.
The defendants removed the case to the United States District Court for the District of Massachusetts, where the judge allowed the defendants' motion for judgment on the pleadings. Lambert appealed, and the United States Court of Appeals for the First Circuit affirmed the dismissal with prejudice of Lambert's 42 U.S.C. § 1983 due process, negligence, and equity claims. The court vacated the dismissal of the State certiorari claim without prejudice. See Lambert v. Fiorentini, 949 F.3d 22, 30 (1st Cir. 2020).
Background.
In 1994, Lambert was hired as a police officer in the city of Haverhill. In May 2012, Lambert's former girlfriend, J.S., came to the police station to file a complaint about Lambert due to his conduct after their break-up. J.S. wanted a police officer to tell Lambert to stay away from her but did not want to file a formal complaint. The deputy police chief met with Lambert and so advised him. On June 26, 2012, J.S. returned to the police station to file a formal complaint against Lambert because she discovered that he had posted a derogatory blog about her on the Internet. Captain Alan Ratte was assigned to investigate this complaint.
Ratte notified Lambert in writing about the investigation; he ordered Lambert to have no contact with J.S., directly or indirectly, and ordered him to appear for an interview on July 5, 2012. Ratte advised Lambert that any violation of the order could result in disciplinary action. Lambert appeared at the interview with an attorney and agreed that he would avoid J.S., and that he would report any incidental contact to Ratte.
On July 17, 2012, Ratte received an e-mail from J.S. reporting that Lambert had just driven past her in his police cruiser, and waved to her. When Ratte interviewed Lambert about this incident in the presence of his attorney, Lambert admitted that he waved to J.S., and said that it would not happen again. Ratte submitted his report to the police chief. Ratte concluded that Lambert violated two department rules as set forth in the code of conduct for the Haverhill Police Department.
Ratte concluded that Lambert twice violated rule 118 (insubordination) for failing to stay away from J.S. by posting about her on the Internet, and waving to her. He also concluded that Lambert violated rule 102H (misconduct that destroys public respect and confidence in the police department) by posting a derogatory blog about J.S. on the Internet.
The police chief adopted Ratte's findings and reasoning. On August 22, 2012, the police chief issued a notice of violation and disciplinary action (notice) to Lambert that included a five-day suspension to be served on August 22, 23, 26, 27, and 28, 2012. The notice also contained a recommendation that Lambert be suspended for an additional fifty-five days by the mayor. Lambert, through counsel, appealed, and requested that the previously scheduled hearing be rescheduled due to counsel's unavailability. The hearing was rescheduled, but the parties agree the hearing never took place.
Pursuant to G. L. c. 31, § 41, only the appointing authority can impose a suspension longer than five days.
Lambert went out sick as a result of a work-related injury on August 21, 2012, the day before the police chief issued the notice of suspension. In connection with this leave, Lambert prevailed on his complaint filed in the Superior Court that challenged the requirement that he use sick time during his absence. See Lambert vs. Denaro, Mass. Sup. Ct., No. 1377CV00351 (Essex County November 26, 2013). Lambert's absence was retroactively characterized as injured duty leave pursuant to G. L. c. 41, § 111F (111F leave). In addition, Lambert's sick time was restored, and he was paid for the five days that the police chief had not paid him. Lambert remained on 111F leave until his retirement on March 22, 2014.
The Superior Court judge found that the suspension was imposed after the accrual of Lambert's 111F leave and therefore Lambert was entitled to be made whole. Compare O'Donovan v. Somerville, 41 Mass.App.Ct. 917, 917-918 (1996).
In January 2017, Lambert requested a LEOSA card. The police chief denied the request, concluding that Lambert was not qualified to receive a LEOSA card because "he left employment under a disability prior to the completion of an Internal Affairs investigation, which could have potentially resulted in discipline up to and including termination."
Discussion.
The Law Enforcement Officer Safety Act provides that a "qualified retired law enforcement officer," possessing particular identification issued by the officer's former law enforcement agency, may "carry a concealed firearm that has been shipped or transported in interstate or foreign commerce," subject to certain restrictions. 18 U.S.C. § 926C(a). See Frawley v. Police Commiss'r of Cambridge, 473 Mass. 716, 717-718 (2016). In Massachusetts, "[t]he chief law enforcement officer for a law enforcement agency shall issue an identification card to a qualified retired law enforcement officer, who retired from that law enforcement agency." Id. at 718, quoting 501 Code Mass. Regs. § 13.03 (2008). "A 'qualified retired law enforcement officer' is an individual who, among other things, 'retired in good standing from service with a law enforcement agency as a law enforcement officer, other than for reasons of mental instability.' . . . The regulations do not define what it means to have retired 'in good standing.'" Frawley, supra at 718, quoting 501 Code Mass. Regs. § 13.02 (2008). As a result, local regulations and policies may provide the definition. See Frawley, supra at 731-732. Here, the department's policy defined "[s]eparated in good standing" to require "that such officer was not charged with or suspected of criminal activity at the time of retirement, nor was he or she under investigation or facing disciplinary action for an ethical violation of departmental rules, or for any act of dishonesty."
In reviewing the denial of Lambert's request for a LEOSA card, we "examine whether the [police chief's] decision was arbitrary and capricious such that it constituted an abuse of his discretion." Frawley, 473 Mass. at 728. "A decision is arbitrary or capricious such that it constitutes an abuse of discretion where it lacks any rational explanation that reasonable persons might support" (quotation and citation omitted) . Id. at 729. We agree with Lambert that the police chief's letter denying Lambert's request for a LEOSA card because Lambert retired under a disability prior to the completion of an Internal Affairs investigation was inaccurate. In fact, the notice of suspension, dated August 22, 2012, stated that the allegations against Lambert were "investigated and subsequently sustained." It is therefore true that the internal affairs investigation was concluded prior to August 22, 2012, and well before the police chief denied Lambert's request for a LEOSA card on October 2, 2017. However, that does not end our analysis. Whether there was an open internal affairs investigation in October 2017 is immaterial, because Lambert was not in good standing when he retired and, therefore, the police chief could not have granted Lambert's LEOSA request in any event. More specifically, when Lambert retired, he had not served the five-day suspension because he was on 111F leave commencing the day before he was suspended. As a result, Lambert's LEOSA request had to be denied because Lambert was "facing disciplinary action for an ethical violation of departmental rules" at the time of his retirement and therefore did not meet the department's definition of good standing. Cf. Frawley, supra at 732-733 (denial of LEOSA card was an abuse of discretion where, at the time of denial, retired officer had been cleared of all wrongdoing). The police chief's denial of Lambert's request was neither arbitrary nor capricious.
Because we conclude that the chief's decision was not arbitrary or capricious as a result of Lambert's failure to serve the five-day suspension, we need not address whether the recommendation for an additional fifty-five day suspension remained pending at the time of Lambert's retirement.
The plaintiff's request for appellate attorney's fees is denied.
Judgment affirmed.
By the Court
Rubin, Wolohojian & Blake, JJ.
The panelists are listed in order of seniority.