Massachusetts high court: Police officer who committed misdemeanors may keep pension

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BOSTON >> A police officer convicted of multiple misdemeanor computer crimes will be able to keep his retirement allowance after the Supreme Judicial Court ruled Wednesday that forfeiting the benefit would violate the Eighth Amendment's prohibition against excessive fines.

The decision says it is the first where the Supreme Judicial Court has held "rather than assumed" that a pension forfeiture for misconduct violates the Eighth Amendment. In addition to banning "cruel and unusual punishments," the Eighth Amendment of the U.S. Constitution prohibits excessive bail and fines.

The high court also passed policymaking questions to the legislative branch, suggesting some new statutory structure for lesser crimes committed by public employees that fall short of justifying a complete pension forfeiture.

Edward Bettencourt had served as a Peabody police officer since 1980 and attained the rank of lieutenant when on early Christmas morning in 2004 he inappropriately accessed a human resource system, according to the court ruling. Bettencourt viewed 21 other officers' Civil Service exam scores, including four who were his direct competitors for promotion to captain, the court wrote.

Less than four years later, a judge convicted Bettencourt of 21 counts of unauthorized access to a computer system and sentenced him to a total of $10,500 in fines.

Bettencourt filed for superannuation retirement and the local board went along with his request, but the Public Employee Retirement Administration Commission in September 2008 denied the retirement application, finding that Bettencourt's crimes were related to his position.

Bettencourt pegged the value of his forfeited pension benefit at nearly $1.5 million and his health care benefits at $482,500, while PERAC calculated a lower estimate of the pension benefit, at $659,000.

In a ruling written by Justice Margot Botsford, the state's highest court determined such a financial penalty on Bettencourt violated the Bill of Rights and left it to the Legislature to determine what might be deemed a more appropriate fine.

Characterizing Bettencourt's behavior as "snooping," Botsford wrote that he did not inflict significant harm on anyone, and citing the maximum statutory punishment for the computer crime, she determined the Legislature "did not view this crime as a grave, serious offense."

"The decision that a public employee's retirement allowance should be forfeited completely upon conviction of certain types of crimes constitutes a policy choice for the Legislature to make," Botsford wrote. The decision said, "The Legislature has not had the opportunity to consider what should occur if and when such a judicial determination of excessiveness is made, and questions of policy abound."

The ruling suggests a possible pension forfeiture arrangement where different percentages of the retirement allowance are kept from retirees depending on the nature of the crime.

"These types of determinations are ones that fit squarely within the legislative, not the judicial, domain, and we believe that the more prudent approach is to defer to the Legislature for its resolution of such issues in the first instance," the decision said.


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