Posts tagged "Retirement"

Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-027-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12331   PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]       Suffolk.     November 6, 2017. – February 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Public Employee Retirement Administration Commission.  Contributory Retirement Appeal Board.  Retirement.  Public Employment, Retirement, Sick leave benefits, Vacation pay, Worker’s compensation.  Words, “Regular compensation.”       Civil action commenced in the Superior Court Department on May 14, 2015.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Judith A. Corrigan, Special Assistant Attorney General, for the plaintiff. Michael Sacco for retirement board of Swampscott.          CYPHER, J.  The plaintiff, the Public Employee Retirement Administration Commission (PERAC), appeals from a Superior Court judge’s decision affirming a determination by the Contributory Retirement Appeal Board (CRAB) that sick or vacation payments, when used to supplement workers’ compensation payments, are not “regular compensation” as defined in G. L. c. 32, § 1.  PERAC argues that CRAB’s decision is incorrect as a matter of law.  We disagree, and for the following reasons we affirm the decision of the Superior Court judge. Background.  The relevant facts are not in dispute.  From September 30, 1985, to July 7, 2012, Robert Vernava worked for the town of Swampscott’s department of public works.  On June 13, 2010, Vernava sustained injuries while performing job-related duties.  He began receiving workers’ compensation benefits the same day.  In addition to the workers’ compensation benefits, under G. L. c. 152, § 69, Vernava also received two hours per week of sick or vacation pay (supplemental pay) in order to maintain his union membership and life insurance.[2] Pursuant to G. L. c. 32, § 7, on February 1, 2012, the town of Swampscott filed an application seeking to retire Vernava involuntarily for accidental disability.  On June 28, 2012, the retirement board of Swampscott (board) approved the application and voted to involuntarily retire Vernava due to accidental disability.  Vernava received his workers’ compensation benefits and supplemental pay until July 7, 2012. Under G. L. c. 32, § 7 (2), the effective date of an employee’s accidental disability retirement is the latest of the following:  (1) “the date the injury was sustained;” (2) “the date […]

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Posted by Massachusetts Legal Resources - February 13, 2018 at 9:00 pm

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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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Posted by Massachusetts Legal Resources - December 15, 2017 at 10:42 pm

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State Board of Retirement v. O’Hare, et al. (Lawyers Weekly No. 11-155-17)

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-965                                        Appeals Court   STATE BOARD OF RETIREMENT  vs.  BRIAN O’HARE & another.[1]     No. 16-P-965.   Suffolk.     September 8, 2017. – December 15, 2017.   Present:  Rubin, Neyman, & Henry, JJ.     Retirement.  Public Employment, Forfeiture of pension, Police.  Police, Regulations.  Police Officer.  State Police.       Civil action commenced in the Superior Court Department on January 29, 2015.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings.     David R. Marks, Assistant Attorney General, for State Board of Retirement. Eric B. Tennen for Brian O’Hare.     HENRY, J.  Brian O’Hare was a sergeant with the Massachusetts State police when he committed the Federal crime of using the internet to entice a person under eighteen to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty.  This case presents the question whether the State Board of Retirement (board) correctly ordered forfeiture of O’Hare’s retirement allowance under G. L. c. 32, § 15(4).[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 we hold that O’Hare’s actions had a direct legal link to his position with the State police, we conclude that O’Hare’s conviction required forfeiture pursuant to § 15(4). Background.  Brian O’Hare served with the Massachusetts State police for twenty years and, in 2006, held the rank of sergeant and was a patrol supervisor and shift commander.  Between August, 2005, and February, 2006, O’Hare communicated online with an individual whom he believed to be a fourteen year old boy.  O’Hare used a family computer while off duty to communicate with the “youth.”  The youth was later revealed to be an undercover Federal Bureau of Investigation (FBI) agent. In February, 2006, O’Hare was arrested by the FBI after arriving at a prearranged meeting place to meet the youth for sexual purposes.  In October, 2006, O’Hare resigned from the State police while under Federal indictment.  In February, 2007, O’Hare pleaded guilty to one charge of using the internet to attempt to coerce and entice a child under the age of eighteen to engage in unlawful sexual activity, […]

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Posted by Massachusetts Legal Resources - December 15, 2017 at 7:08 pm

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Worcester Regional Retirement Board v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-147-17)

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   17-P-66                                         Appeals Court   WORCESTER REGIONAL RETIREMENT BOARD  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]     No. 17-P-66.   Worcester.     October 11, 2017. – November 29, 2017.   Present:  Milkey, Massing, & Ditkoff, JJ.     Contributory Retirement Appeal Board.  County, Retirement board. Municipal Corporations, Retirement board, Pensions.  Public Employment, Retirement, Retirement benefits.  Retirement.  Pension.     Civil action commenced in the Superior Court Department on September 15, 2015.   The case was heard by Shannon Frison, J., on motions for judgment on the pleadings.     Michael Sacco for the plaintiff. Thomas F. Gibson for Middlesex County Retirement Board.     MASSING, J.  The Worcester Regional Retirement Board (WRRB) appeals from a judgment of the Superior Court, which affirmed a decision of the Contributory Retirement Appeal Board (CRAB) requiring the WRRB to permit a former member to purchase nine additional months of creditable service.[2]  At issue is whether the WRRB is responsible for not having enrolled the employee, Brian Pierce, as of the day he became eligible for membership, or whether Pierce had an affirmative obligation to ensure that he had been enrolled as of his start date.  CRAB determined that the responsibility lay with the WRRB, not the employee; that the retirement system records should be corrected to reflect Pierce’s nine months of uncredited membership; and that Pierce should be permitted to buy back the time of which he had erroneously been deprived.  Discerning no legal error or abuse of discretion on CRAB’s part, we affirm. Background.  Pierce began permanent, full-time employment as a third-class lineman for the Princeton Municipal Light Department, which is a member unit of the Worcester Regional Retirement System (WRRS), on December 6, 1982.  On October 24, 1983, Pierce completed a new entrant enrollment form “[i]n order that [he] may be properly enrolled” in the WRRS.[3]  The WRRB stamped the form as received on November 18, 1983.  The form correctly indicated that Pierce’s full-time permanent employment had begun on December 6, 1982.  The WRRB enrolled Pierce as a member as of September 1, 1983, crediting him with service prior to its receipt of his enrollment form, but not for the first nine months of his employment starting on December 6, 1982. Pierce’s service with the town of Princeton ended on May 1, 1986, when he took a similar position with the Middleborough Light Department. […]

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Posted by Massachusetts Legal Resources - November 29, 2017 at 4:44 pm

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Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)

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-1158                                       Appeals Court   ESSEX REGIONAL RETIREMENT BOARD  vs.  JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2]     No. 16-P-1158.   Essex.     March 8, 2017. – July 12, 2017.   Present:  Grainger, Blake, & Neyman, JJ.[3]     Public Employment, Retirement, Forfeiture of pension.  Police, Retirement.  Pension.  Constitutional Law, Public employment, Excessive fines clause.  County, Retirement board.  Practice, Civil, Action in nature of certiorari.  District Court, Appeal to Superior Court.       Civil action commenced in the Superior Court Department on July 14, 2015.   The case was heard by James F. Lang, J., on motions for judgment on the pleadings.     Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow.     GRAINGER, J.  The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow.  The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4).  We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4).  We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background.  We summarize the procedural history and the underlying relevant facts which are undisputed.  In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department.  At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service.  Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point.  After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan.  He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car.  The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs.  Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt.  He began screaming […]

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Posted by Massachusetts Legal Resources - July 12, 2017 at 8:47 pm

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State Board of Retirement v. Finneran, et al. (Lawyers Weekly No. 10-051-17)

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   SJC-12069   STATE BOARD OF RETIREMENT  vs.  THOMAS M. FINNERAN & others.[1]       Suffolk.     December 8, 2016. – April 5, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Budd, JJ.[2]     Retirement.  State Board of Retirement.  Public Employment, Forfeiture of retirement benefits.  Constitutional Law, Excessive fines clause.  Practice, Civil, Action in nature of certiorari.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 4, 2015.   The case was reported by Lenk, J.     David R. Marks, Assistant Attorney General, for the plaintiff. Nicholas Poser (Thomas R. Kiley also present) for Thomas M. Finneran.     LENK, J.  Former Speaker of the House Thomas Finneran pleaded guilty in the United States District Court in 2007 to one count of obstruction of justice in violation of 18 U.S.C. § 1503.  The obstruction of justice conviction related to false testimony that he had provided in relation to a Federal court action challenging the 2001 redistricting act, St. 2001, c. 125 (redistricting act).  Finneran had played a significant role in the development of the redistricting act from the point of its inception but denied under oath that he had played any part in its development.  Indeed, he testified that he had not even seen the plan before it was released to the full House of Representatives. After his conviction, Finneran was informed by the State Retirement Board (board) that his crime constitutes a “violation of the laws applicable to his office or position,” pursuant to G. L. c. 32, § 15 (4), requiring the forfeiture of his pension.  Finneran appealed from the board’s determination to the Boston Municipal Court.  A Boston Municipal Court judge reversed, discerning no direct link between Finneran’s “conviction and his position as a Member and/or Speaker of the House.”  We reach the opposite conclusion, and accordingly reverse the decision of the Boston Municipal Court judge and affirm the conclusion of the board. Background.[3] Finneran was first elected to the House of Representatives in 1978, as the representative of the Twelfth Suffolk District.  Thereafter, he was reelected every two years, and concurrently served as Speaker of the House from 1996 until his resignation in 2004. In 2001, Finneran played a key role in shepherding the Commonwealth through the redistricting process pursuant to the 2000 decennial United States census.  The Legislature bore the […]

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Posted by Massachusetts Legal Resources - April 5, 2017 at 3:01 pm

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Retirement Board of Stoneham v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-189-16)

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-12098   Retirement Board OF STONEHAM  vs.  Contributory Retirement Appeal Board & another.[1]       Middlesex.     October 5, 2016. – December 22, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Retirement.  Municipal Corporations, Retirement board.  Public Employment, Retirement.  Contributory Retirement Appeal Board.       Civil action commenced in the Superior Court Department on February 6, 2014.   The case was heard by Robert L. Ullmann, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Douglas S. Martland, Assistant Attorney General, for Contributory Retirement Appeal Board. Thomas F. Gibson for Christine DeFelice. Michael Sacco for the plaintiff.     LOWY, J.  This case requires us to answer two questions:  (1) whether a municipal retirement board possesses absolute discretion to terminate a part-time employee’s membership in a retirement system to which that board has granted the employee membership; and (2) even if such a board does not have the power to terminate a part-time employee’s membership, whether a “separation from [an employee’s] service” under G. L. c. 32, § 3 (1) (a) (i), occurs when a part-time employee working two jobs for the same municipal employer ceases to work only one of those jobs.  We answer both questions in the negative and reverse the judgment of the Superior Court. Background.  Christine DeFelice began working on a part-time basis for the Stoneham school department (department) in November, 2000.  In April, 2001, she took on a second part-time job with the department to fill a temporary vacancy, increasing her weekly workload from nineteen and one-half hours per week to over thirty hours per week for the ensuing nine weeks.  At the end of the nine-week period, DeFelice continued to work for the department on a part-time basis until at least June, 2009, only occasionally working more than nineteen and one-half hours per week.[2] In 2009, DeFelice sought retroactive membership in the Stoneham retirement system as an employee of the department, based on the nine-week period in 2001 during which she worked over thirty hours per week.  Under the membership eligibility criteria for part-time employees established by the Stoneham retirement board (board) that were in effect during 2001, Stoneham employees were eligible for membership in the retirement system if they were […]

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Posted by Massachusetts Legal Resources - December 23, 2016 at 12:28 am

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Kalu v. Boston Retirement Board, et al.

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   15-P-1148                                       Appeals Court   OBIDIYA KALU  vs.  BOSTON RETIREMENT BOARD & another.[1]     No. 15-P-1148.   Norfolk.     May 4, 2016. – October 14, 2016.   Present:  Katzmann, Carhart, & Sullivan, JJ.[2]     Contributory Retirement Appeal Board.  Public Employment, Accidental disability retirement, Retirement.  Retirement.  Practice, Civil, Appeal.  Administrative Law, Decision, Judicial review, Official notice, Substantial evidence.       Civil action commenced in the Superior Court Department on July 21, 2014.   The case was heard by Peter B. Krupp, J., on motions for judgment on the pleadings.     Charles E. Berg for the plaintiff. Elizabeth Kaplan, Assistant Attorney General, for Contributory Retirement Appeal Board. Edward H. McKenna for Boston Retirement Board.     SULLIVAN, J.  The plaintiff, Obidiya Kalu, appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB).  CRAB had determined that while Kalu’s appeal from the denial of accidental disability retirement benefits by the Boston Retirement Board (BRB) was timely, she was not entitled to those benefits.[3]  We conclude that the appeal was timely, but we vacate the judgment affirming the denial of benefits and remand the case for further proceedings. Timeliness of appeal from retirement board decision.  The first issue presented is whether the fifteen-day appeal period from an adverse decision of a retirement board set forth in G. L. c. 32, § 16(4), begins to run when a represented applicant receives proper notice of the retirement board’s decision, or when an applicant’s legal counsel receives such notice.  We defer to CRAB’s reasonable interpretation of its enabling statute and conclude that the appeal period begins to run when notice is received by the applicant’s counsel. After a hearing, an administrative magistrate of the Division of Administrative Law Appeals (DALA) made factual findings on the issue of when notice was received, and by whom, all of which were adopted by CRAB.  “We accept the facts found by CRAB when there is substantial evidence to support them, and also accept the reasonable inferences CRAB draws from the facts.”  Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. 434, 438 (2010) (citation omitted).  We summarize the pertinent findings, all of which were supported by substantial evidence. Attorney James Ellis filed the claim for accidental disability retirement benefits on Kalu’s behalf on December 30, 2006.  In October, 2008, the BRB held a hearing on Kalu’s […]

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Posted by Massachusetts Legal Resources - October 14, 2016 at 8:23 pm

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DiMasi v. State Board of Retirement, et al. (Lawyers Weekly No. 10-056-16)

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-11971   SALVATORE F. DiMASI  vs.  STATE BOARD OF RETIREMENT & others.[1]     Suffolk.     February 9, 2016. – April 21, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Public Employment, Forfeiture of retirement benefits.  Retirement.  State Board of Retirement.  Contribution. Words, “Final conviction.”       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 16, 2014.   The case was reported by Cordy, J.     Thomas R. Kiley for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants.          SPINA, J.  After the plaintiff, Salvatore F. DiMasi, was convicted of several violations of Federal law, the State Board of Retirement (board) unanimously approved the forfeiture of his retirement allowance in accordance with G. L. c. 32, § 15 (4), and a judge in the Boston Municipal Court Department affirmed the board’s decision.  DiMasi filed a complaint for relief in the nature of certiorari pursuant to G. L. c. 249, § 4, in the Supreme Judicial Court for Suffolk County.  A single justice reserved and reported the case for determination by the full court.  DiMasi contends that a “final conviction” of a criminal offense for purposes of § 15 (4) occurs at the conclusion of the appellate process, not when a sentence is imposed.  He further contends that the board improperly has withheld his accumulated total deductions since September, 2011.  For the reasons that follow, we conclude that, in the context of pension forfeiture, a “final conviction” occurs when an individual is sentenced.  We further conclude that DiMasi is entitled to the return of his accumulated total deductions, together with interest on such deductions from September, 2011, until such time as payment is made. 1.  Statutory framework.  The provisions of G. L. c. 32, § 15, “pertain to dereliction of duty by a member of the contributory retirement system for public employees (member).”  See State Bd. of Retirement v. Bulger, 446 Mass. 169, 170 (2006) (Bulger).  General Laws c. 32, § 15 (4), states as follows: “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 [§§ 1-28], inclusive, nor shall any beneficiary be entitled to receive any benefits […]

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Posted by Massachusetts Legal Resources - April 21, 2016 at 7:02 pm

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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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Posted by Massachusetts Legal Resources - April 6, 2016 at 5:40 pm

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