Sergeant Forfeits Retirement Upon Conviction Of Internet Sex Crime

In 2005, Brian O’Hare, a sergeant with the Massachusetts State Police, began communicating online with an individual whom he believed to be a 14-year-old boy. O’Hare used a family computer while off duty to communicate with the “youth,” who in fact was an undercover FBI agent.

In February 2006, O’Hare was arrested by the FBI after arriving at a prearranged meeting place to meet the youth for sexual purposes. In October 2006, O’Hare resigned from the State Police while under federal indictment. In February 2007, O’Hare pleaded guilty to one charge of using the internet to attempt to coerce and entice a child under the age of 18 to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b).

After O’Hare’s conviction, the Massachusetts State Board of Retirement held a hearing and denied O’Hare a retirement allowance. O’Hare sued, arguing that his offense “did not involve a violation of law applicable to his position” with the State Police.

An appeals court rejected O’Hare’s arguments, and held that his pension was forfeited. The Court’s decision focused on a state statute that “in no event shall any member of the State employees’ retirement system after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.”

The Court found that State Police regulations require, among other things, that troopers avoid conduct “which brings the Massachusetts State Police into disrepute or reflects discredit upon the person as a member of the Massachusetts State Police. The regulations also require State troopers to obey all of the laws of the United States and of the local jurisdiction in which the trooper is present. Because this would have the effect of making any violation of law mandate forfeiture, which the Supreme Judicial Court has already held is not permissible, we decline the invitation.

“Nonetheless, in evaluating pension forfeiture cases involving law enforcement personnel, we have acknowledged the special position of law enforcement officers. Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.

“O’Hare’s crime involved intentional action that would cause significant harm to a child. O’Hare’s egregious actions are in violation of the fundamental tenets of his role as a State police officer, where the protection of the vulnerable, including children, is at the heart of a police officer’s role, and this repudiation of his official duties violated the public’s trust and the integrity of the State police. O’Hare’s argument that his position of patrol supervisor and shift commander at the time of the offense meant that he was not responsible for policing crimes against children is not persuasive because it relies on the happenstance of a particular job assignment at the time of the crime and parses too fine a line for the central tenets of a law enforcement officer’s position.”

State Board of Retirement v. O’Hare, 2017 WL 6395792 (Mass. App. 2017).