Public Employee Retirement Administration Commission v. Bettencourt (Lawyers Weekly No. 10-047-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   SJC-11906   PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION  vs.  EDWARD A. BETTENCOURT. Suffolk.     October 6, 2015. – April 6, 2016.   Present (Sitting at New Bedford):  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Public Employee Retirement Administration Commission.  Retirement.  Public Employment, Retirement benefits, Forfeiture of retirement benefits.  Constitutional Law, Excessive fines clause.       Civil action commenced in the Superior Court Department on December 19, 2012.   The case was heard by Garry V. Inge, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Paul T. Hynes (Michael R. Keefe with him) for the defendant. Peter Sacks, State Solicitor (Judith A. Corrigan, Special Assistant Attorney General, with him) for the plaintiff. Ian O. Russell & Patrick N. Bryant for Massachusetts Coalition of Police, amicus curiae, submitted a brief.     BOTSFORD, J.  The Commonwealth’s law governing public employee retirement systems and pensions requires that a public employee forfeit the retirement and health insurance benefits (retirement allowance or pension) to which the employee would be entitled upon conviction of a crime “involving violation of the laws applicable to [the employee’s] office or position.”  G. L. c. 32, § 15 (4) (§ 15 [4]).[1]  We consider here whether this mandatory forfeiture of a public employee’s retirement allowance qualifies as a “fine” under the excessive fines clause of the Eighth Amendment to the United States Constitution.  We conclude that it does and that, in the circumstances of this case, the mandatory forfeiture of the public employee’s retirement allowance is “excessive.”[2] Background.[3]  Edward A. Bettencourt was first appointed as a police officer in the city of Peabody in October, 1980, and became a member of the Peabody retirement system on November 7, 1982.[4]  Bettencourt was promoted to the rank of sergeant around 1990, and promoted again to serve as a lieutenant in 2003.  In the early morning hours of December 25, 2004, Bettencourt was on duty as a watch commander, and he knowingly accessed, through theInternet and without permission, the Massachusetts human resources division (HRD) computer system, and specifically the HRD Internet site containing individual applicant record information.  Gaining the unauthorized access, he viewed the civil service promotional examination scores of twenty-one other police officers, including four officers who were his direct competitors […]

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