| Date: | 05/08/1984 |
|---|---|
| Organization: | State Ethics Commission |
A municipal employee under indictment for misconduct in office and suspended pursuant to § 25 of the conflict of interest law must be reinstated and the suspension removed unless there is a finding or verdict of guilty.
A municipal employee was indicted for misconduct in office. At the time of the indictment, he was also suspended from his employment under § 25 of G.L. c. 268A. The indictment subsequently was placed on file by the court, and the employee's plea of nolo contendere and an agreement between the prosecuting and defense attorneys were accepted by the court. The agreement stipulated that the employee relinquished all claims to salary under G.L. c. 268A, § 25 from the date of indictment to the date of the agreement. It also provided that the employee's plea was not an admission of guilt, and that acceptance of the plea by the court was not a finding of guilt. After the agreement was accepted by the court, the town removed the suspension and reinstated the employee.
Will § 25 of the conflict of interest law, G.L. c. 268A, preclude resuming payment of the salary of an indicted municipal employee whose proceedings have terminated by 1) an acceptance by the court of a plea of nolo contendere, 2) placement of the cases on file, 3) an agreement that claims to salary for the period of indictment be relinquished, and 4) agreement that acceptance of the plea of nolo contendere does not constitute findings of guilty?
No, because of the agreement between the prosecuting and defense attorneys.
The employee in question is a municipal employee for the purposes of G.L. c. 268A. See, G.L. c. 268A, § 1(g). As a municipal employee he is subject to the provisions of G.L. c. 268A, § 25. Section 25 provides in relevant part that an officer or employee of a county, city, town or district...may during any period such officer or employee is under indictment for misconduct in such office or employment be suspended by the appointing authority. Any person so suspended shall not receive any compensation or salary during the period of suspension. 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, this suspension shall be forthwith removed, and he shall receive all compensation or salary due him for the periods of this suspension.
It requires that the suspension of an employee who has been indicted "shall be...removed" if the proceedings following the indictment are terminated "without a finding or verdict of guilty."
The phrase "without a finding or verdict of guilty" can be construed to mean "a finding as opposed to a verdict" or "a finding of guilty or a verdict of guilty." If § 25 were read "a finding as opposed to a verdict of guilty," a determination would have to be made whether the manner in which the proceedings of the [employees] were terminated was such that it constitutes a finding. There is, however, no need to reach that question if the statute is properly read "a finding of guilty or a verdict of guilty."
In construing statutory language, it is appropriate to refer to the usage of a term in other statutes. Commonwealth v. Baker, 368 Mass. 58 (1975). The Massachusetts statute setting forth the conditions for the admission of convictions into evidence in order to affect the credibility of a defendant, G.L. c. 233, § 21, uses the phrase "finding or verdict of guilty" in a fashion that indicates that the phrase is to be read "finding of guilty or verdict of guilty." Section 21 reads, "for the purpose of this paragraph, a plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section." Id. Case law has confirmed the reading of the phrase "Finding or verdict of guilty" to be "finding of guilty or verdict of guilty." Karesek v. Bockus, 293 Mass. 371 (1936).
The cases in point terminated with the acceptance by the court of pleas of nolo contendere. While a plea of nolo contendere indicates that all the facts alleged in the indictment are admitted, Commonwealth v. Marino, 254 Mass. 533 (1926), McHugh v. U.S., 230 F.2d 252 (1956), cert. denied 76 Sup. Ct. 1030, 351 U.S. 966; it means literally "I will not contest" and may be offered only with leave of court. Blacks Law Dictionary, 945. It may not be used against the defendant in civil actions based on the same acts, Id. and it may not be used to discredit a defendant in any suit based on other acts. Okszewski v. Goldberg, 223 Mass.27 (1916). However, in view of the stipulation of the parties, the Commission need not reach the issue of whether the pleas of nolo contendere constitute either a finding of guilty or a verdict of guilty. The case of the municipal employee clearly did not terminate with either a finding of guilty or a verdict of guilty. The court itself confirmed that fact in accepting the agreement of the prosecuting and defense attorneys that expressly stated that the "acceptance of the plea [of nolo contendere] by the court is not a finding of guilt."
Under G.L. c. 268A, § 25 suspensions of indicted employees must be removed unless there is a "finding or verdict of guilty." The commission finds that the requirement for the removal of the suspension applies.
End Of Decision
