Dell’Isola v. State Board of Retirement, et al. (Lawyers Weekly No. 11-154-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-963                                        Appeals Court   MICHAEL DELL’ISOLA  vs.  STATE BOARD OF RETIREMENT another[1].     No. 16-P-963.   Suffolk.     September 8, 2017. – December 15, 2017.   Present:  Rubin, Neyman, & Henry, JJ.     Retirement.  Public Employment, Forfeiture of pension.  Correction Officer.       Civil action commenced in the Superior Court Department on December 31, 2014.   The case was heard by Linda E. Giles, J., on motions for judgment on the pleadings.     David R. Marks, Assistant Attorney General, for State Board of Retirement. Nicholas Poser for the plaintiff.     HENRY, J.  Michael Dell’Isola was a correction officer when he committed the crime of possession of cocaine.  The State Retirement Board (board) subsequently conducted a hearing and made factual findings that Dell’Isola came into possession of the cocaine only as a result of an arrangement with an inmate who had been in his custody and who at the time remained in the custody of the Middlesex County sheriff’s office.  This case thus requires us to consider whether, pursuant to G. L. c. 32, § 15(4), Dell’Isola’s conviction requires forfeiture of his retirement allowance.[2]  General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n 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.”  Because how Dell’Isola came into possession of the cocaine was factually linked to his position as a correction officer, we hold that his criminal offense falls within the purview of § 15(4) and he is ineligible to receive a retirement allowance. Background.  In September, 2012, a jury convicted Dell’Isola of one charge of possession of cocaine.  The board later held a hearing regarding Dell’Isola’s application for a superannuation allowance.  The board made the following findings of fact based on an evidentiary hearing and largely based on a transcript of Dell’Isola’s own statements during a postarrest interview with the State police. In 2011, Dell’Isola was a sergeant and a senior correction officer with the Middlesex County sheriff’s office, having served in the office since 1982.  An inmate under Dell’Isola’s supervision at the Middlesex County jail in Cambridge, identified only as “George,” offered Dell’Isola “a large amount of cash” and told Dell’Isola to contact George’s mother.[3]  Dell’Isola met with […]

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