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SJC rules ex-officer can collect pension despite conviction

The state’s highest court ruled Wednesday that a retired Peabody police lieutenant can collect his pension despite a criminal conviction for a job-related offense, a decision that a top retirement official said sends “a very negative message to the taxpayers.”

In a unanimous ruling, the Supreme Judicial Court sided with former lieutenant Edward A. Bettencourt, 63, in finding that a state law requiring that he forfeit his pension — worth between $659,000 to more than $1.4 million over the life of the payouts — violated his rights under the Eighth Amendment ban on excessive fines.

Justice Margot Botsford wrote in the 32-page ruling that stripping Bettencourt of his entire pension is “not proportional to the gravity of the underlying offenses of which he was convicted.”


While the ruling puts a dent in the state law, it appears to have a limited impact on more serious cases involving public officials, who have often fought to get their pensions back after criminal convictions.

Bettencourt, the father of Peabody Mayor Ted Bettencourt, was convicted of 21 counts of unauthorized use of a computer system for logging on to a state database in 2004 to check civil service scores of 21 officers, including four who were competing with him for an open captain’s position. He was fined $10,500 for the misdemeanor offenses but received no jail time or probation.

“If history is any guide, cases involving such a relatively minimal degree of culpability and harm to the public are highly unusual,” Botsford wrote.

Bettencourt could not be reached for comment on Wednesday night, and Mayor Bettencourt did not respond to inquiries seeking comment.

Lieutenant Bettencourt’s lawyer, Paul Hynes, praised the ruling in a phone interview.

“We now know that public employees have constitutional rights with respect to their pensions. That’s the biggest issue that they decided,’’ Hynes said of the SJC decision. “This is a landmark case, but it’s not going to open up any floodgates.”


Joseph E. Connarton, executive director of the state’s Public Employee Retirement Administration Commission, which initially denied Bettencourt his pension benefits in 2008 and argued before the SJC against providing them, said his panel has not yet decided whether to appeal.

“It’s incomprehensible to us that a superior officer, while on duty in uniform, [unlawfully] using police resources would not reach the level of having his pension forfeited,” Connarton said. “I think it sends a chilling message to the general public. I think it sends a very negative message to the taxpayers that someone can commit a crime, albeit a misdemeanor, and they are allowed to collect the full [retirement] benefit.”

Botsford wrote that the court understands the state forfeiture law helps protect “the honesty and integrity” of public officials. However, she said the court is also suggesting that the state Legislature change the law to avoid excessive penalties.

“[M]ight the Legislature choose to establish a wholly different forfeiture system -- for example, one that provided for different percentages of pension forfeiture depending on the nature and circumstances of the crime?” Botsford wrote.

House speaker Robert DeLeo signaled a willingness to consider changes to the pension forfeiture law.

“The Court has suggested legislative action to clarify the law and that is a suggestion that I take very seriously,” DeLeo said in a prepared statement. “That said, because the Court did acknowledge that cases where a pension revocation would be deemed unconstitutional are infrequent, I think we have some time to do our due diligence.”


Gregory Sullivan, a former state inspector general, said he would support a tiered punishment system.

“The [SJC] is suggesting that they go back and look at this come up with a more reasonable, staggered system” said Sullivan, now the research director of the Pioneer Institute, a policy think tank. “I think that this makes a lot of sense. . . . I don’t think the penalty should be annihilation of your financial future for a relatively small crime."

A number of Massachusetts officials have been stripped of their pensions in recent years for criminal convictions, including two former House speakers, Salvatore DiMasi and Thomas Finneran, as well as former Probation commissioner John O’Brien.

Finneran, who in 2007 pleaded guilty to one count of obstruction of justice based on testimony he gave under oath in a federal civil suit related to redistricting, had his pension reinstated last year by a judge, but the case is still pending in the courts. The judge ruled that Finneran was not acting in a public capacity when he was testifying in the suit.

O’Brien is appealing his federal racketeering conviction for running a rigged hiring system at the probation agency. The state retirement board recently stripped him of his pension, but he is appealing the ruling as well.

Nicholas Poser, a prominent Boston attorney who specializes in pension law and who represents Finneran and O’Brien in their bids to keep their retirement benefits, said Wednesday that the SJC ruling does not directly affect their cases, which deal with different legal issues.


But he praised the decision, saying the justices determined that in the Bettencourt case, “the punishment didn’t fit the crime.”

He said the justices are “very clear” that the ruling is limited to a small number of people.

The opinion, he said, “moves the law in the direction that it has been moving in the last couple of years . . . which is to narrow the application of the forfeiture statute to persons who are truly using their public office for criminal enterprises.”

DiMasi is serving an eight-year federal prison term for corruption in a case in which he collected $65,000 in bribes. His pension was revoked in 2012 but he is appealing that ruling before the SJC.

Thomas R. Kiley, a lawyer for DiMasi, said in an e-mail that he has followed the Bettencourt case with interest.

He called Wednesday’s ruling from the SJC “well-reasoned,” but said that it presents different issues from his client’s case.

Kathy McCabe of the Globe staff contributed to this report. Travis Andersen can be reached at travis.andersen
. John R. Ellement can be reached at john