Opinion
11-P-0323
02-10-2012
PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION v. EDWARD BETTENCOURT & others. [FN1]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On October 26, 2006, the defendant Edward Bettencourt, a former member of the Peabody police department (department), was convicted of twenty-one counts of accessing an unauthorized computer system, in violation of G. L. c. 266, § 120F. The same day, Bettencourt filed an application for voluntary superannuation retirement with the Peabody retirement board (board) under G. L. c. 32, § 5. After a hearing, the board issued a decision approving Bettencourt's retirement, ruling that his convictions did not violate G. L. c. 32, § 15(4), because the board concluded that Bettencourt's conduct did not constitute 'criminal activity connected with [his] office or position.' In accordance with G. L. c. 32, §§ 5(3)(d), 21(4), the board's decision was submitted to the Public Employee Retirement Administration Commission (PERAC) for approval. PERAC reversed the board's decision, concluding that Bettencourt's crimes were 'per se . . . related to his . . . position.' Bettencourt sought review in the District Court, arguing both that PERAC erroneously applied G. L. c. 32, § 15(4), and that pension forfeiture in this matter was an excessive fine in violation of the Eighth Amendment to the United States Constitution. On cross motions for summary judgment, a District Court judge overruled PERAC's decision. Following the District Court judge's decision, PERAC sought certiorari review in Suffolk Superior Court. See G. L. c. 249, § 4. Again on cross motions for summary judgment, a Superior Court judge affirmed the District Court judge's decision awarding benefits to Bettencourt.
The statute, governing forfeiture of pension upon misconduct, reads in relevant part: 'In no event shall any member 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 under the provisions of section one to twenty-eight, inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member.' G. L. c. 32, § 15(4), inserted by St. 1987, c. 697, § 47.
PERAC filed a timely notice of appeal. We vacate the judgment, and remand the matter to the District Court for consideration of the Eighth Amendment issue.
Discussion. In this context we review the decision of the District Court judge 'without giving the view of the Superior Court judge any special weight.' Doe v. Superintendent of Schs. of Stouqhton, 437 Mass. 1, 5 & n.6 (2002). We must determine whether the District Court judge committed a 'substantial error of law' in overturning PERAC's ruling denying Bettencourt pension benefits under G. L. c. 32, § 15(4). See, e.g., Woodward v. State Bd. of Retirement, 446 Mass. 698, 703-704 (2006).
In determining whether a violation of G. L. c. 32, § 15(4), has occurred, '[t]he substantive touchstone intended by the General Court is criminal activity connected with the office or position.' Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 4 (1996). See MacLean v. State Bd. of Retirement, 432 Mass. 339, 341-342 (2000); State Bd. of Retirement v. Bulger, 446 Mass. 169, 175 (2006); G. L. c. 32, § 15(4). Not all convictions, but only 'those violations related to the member's official capacity were targeted' by the statute. Gaffney, supra at 5. 'Looking to the facts of each case for a direct link between the criminal offense and the member's office or position best effectuates the legislative intent of § 15(4).' Ibid.
We conclude that the commission of Bettencourt's crime was directly linked to his office or position, and that the District Court judge substantially erred in his ruling to the contrary. Bettencourt's crimes were not 'mere personal transgressions wholly unrelated' to his office. Bulger, 446 Mass. at 174. The District Court judge acknowledged that 'Bettencourt's criminal activity involved police equipment and targeted fellow police officers.' He illegally accessed the files of the other officers while on duty in his official capacity as a watch commander, on department premises,and while using a department computer. Importantly, his job as a watch commander entailed the supervision of other officers, and he impersonated other officers on-line to facilitate his illegal access to the department computer system. Further, although no direct evidence was presented of exactly how Bettencourt obtained the Social Security numbers of the officers he impersonated, it strains credulity to suggest that he did not obtain at least some of this information through some official means. Based on the facts of this case we have no choice but to conclude that the direct link required by Gaffney and Bulger is present here.
Contrast Scully v. Retirement Bd. of Beverly, 80 Mass. App. Ct. 538, 543 (2011) (holding § 15[4] inapplicable where there was no evidence that the defendant used library computers to illegally access and store child pornography, and where the defendant did not 'use his position to facilitate the crime of which he was convicted').
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As the Commonwealth points out in its reply brief, any arguments 'that the pension forfeiture statute is not calibrated to the gravity of an offense' are policy arguments that 'are better addressed to the Legislature.' MacLean, 432 Mass at 340 n.2. 'To the extent that there may be hardship' resulting from a particular application of G. L. c. 32, § 15(4), 'amelioration must be left to the Legislature.' Glass v. Lynn, 49 Mass. App. Ct. 352, 355 (2000).
As the District Court judge did not reach Bettencourt's claim that the forfeiture of his pension benefits constitutes an excessive fine in violation of the Eighth Amendment, we remand the case to the District Court for consideration of that issue.
The judgment of the Superior Court is vacated and the case is remanded to the District Court for consideration of the defendant's Eighth Amendment claim.
By the Court (Berry, Trainor & Hanlon, JJ.),