As State Police overtime probe intensifies, troopers race to lock in pensions and retire
Three Massachusetts State Police troopers received an unwelcome surprise last Wednesday morning, when FBI officials showed up on their doorsteps to arrest them on federal embezzlement charges.
But two of those troopers can expect a much more pleasant sight any day now: state pension checks.
At least 17 troopers linked to overtime abuse and under suspicion for payroll fraud have retired in recent months, locking in generous pensions and cashing out unused benefits and perks.
The pension payouts approved to date range from $68,000 to $105,000 per year. And with dozens of troopers under investigation, more may race to retirement.
Former lieutenant David W. Wilson and former trooper Paul E. Cesan, both of whom were arrested and charged with embezzlement Wednesday in federal court, retired in March and had their pension applications processed in recent weeks.
The first payments went out Friday, according to a spokeswoman for the state retirement board, which administers pensions. Those checks will contain an especially large lump sum, retroactive to their March retirements.
Wilson, 57, of Charlton, was on the force for more than 31 years and is set to receive $8,791 per month, or about $105,490 annually.
Cesan, 50, of Southwick, spent about 24 years with the State Police and is in line for $6,639 per month, or about $79,670 a year.
State Police members, a special class under state pension law, can retire and start collecting once they have at least 20 years of service, no matter their age.
Trooper pensions are based on base pay — not overtime or detail work — and the thousands of dollars they claimed in allegedly phony overtime won’t factor into their upcoming payouts.
Wilson, who earned nearly $260,000, including $103,000 in overtime during 2016, allegedly stole $12,450 that year in overtime, according to federal prosecutors.
Cesan earned $163,500, including $50,800 in overtime in 2016. He allegedly embezzled $29,287 in overtime.
Federal prosecutors said the theft figures are conservative calculations and cover only one year. If convicted, they face up to 10 years in prison and a $250,000 fine, but also the potential loss of their pensions.
The state retirement board can move to halt pension payments for former state employees convicted of crimes related to their employment. The board also can force them to repay benefits they’ve already received if they exceed the amount they contributed to their pensions during their careers.
State officials said they weren’t sure how many times the board has gone after already-paid pension benefits, but noted such cases are rare.
Absent a conviction, pension payments continue to flow.
Governor Charlie Baker has said he wants the board to be aggressive in going after the pensions of convicted troopers.
“If it’s up to me, I’d take it away — period,” Baker told reporters in April. “As far as I’m concerned, that’s stealing. And no one who sits in one of these public positions should steal — period. You learn that when you’re in second grade. What we’re talking about here is sworn officers of the law.”
Legal experts said that these troopers, if convicted, would appear to be ripe candidates to lose their pensions.
“Right now, it seems like very damning evidence that could result readily in the forfeiture,” said Boston attorney Walter M. Foster, who specializes in state pension law.
However, courtroom veterans noted, it’s no slam-dunk.
For one, troopers can keep their pensions under certain deals with prosecutors, in exchange for pleading guilty and agreeing to other penalties.
What’s more, if any troopers are convicted and the state moves to strip their pensions, they would be able to appeal.
“There’s a number of legal arguments that could be raised,” Foster said.
Troopers could argue that being forced to surrender their pensions violates the Eighth Amendment because it’s too harsh a penalty in light of the underlying crime.
Lawyers successfully made that argument in Massachusetts just two years ago in the case of retired Peabody police lieutenant Edward A. Bettencourt.
Bettencourt was convicted of a job-related offense — unauthorized use of a computer system for logging on to a state database to check civil service scores of 21 officers — and the state moved to strip his pension.
But the Supreme Judicial Court ruled that rescinding his pension, which it pegged as being worth up to $1.4 million, violated his rights under the Eighth Amendment ban on excessive fines.
Still, it’s hard to tell if that would work this time.
It’s a fairly new argument in the world of pension forfeitures, said Quincy-based attorney Brian P. Fox. “There’s not a lot of law on it.”
There’s also a section in Massachusetts law that gives the state retirement board discretion to allow people convicted of misappropriating government funds to remain eligible for their pensions so long as they pay back the misappropriated money.
A few criminal retirees have managed to keep public pensions by arguing their crimes weren’t related to their jobs. Former state senator James Marzilli, who was convicted of accosting four women, and Thomas Scully, a Beverly library worker who pleaded guilty to possession of child pornography, won Supreme Judicial Court rulings.
Meanwhile, former House speaker Salvatore F. DiMasi, convicted on corruption charges in 2011, received a favorable SJC ruling in 2016 that allowed him to keep the money he paid into his pension during his career.
Certainly, State Police troopers are examining their options. About 40 current or recently retired troopers are under investigation for overtime fraud.
At least 17 retirees received additional lump sum payouts for unused vacation and sick time, ranging from about $7,600 to $80,000.
All of those who did not retire have been suspended without pay, including the third trooper arrested Wednesday, Gary S. Herman, 45, of Chester.