SalemNews.com, Salem, MA

November 8, 2012

Judge: Pension loss is excessive

Orders Bettencourt retirement pay reinstated

BY JULIE MANGANIS STAFF WRITER
The Salem News

---- — PEABODY — A now-retired Peabody police lieutenant convicted of using the birth dates and Social Security numbers of colleagues to access their Civil Service exam results on a state website eight years ago should not lose his pension, a Peabody District Court judge has ruled.

Judge Matthew Nestor, in a 31/2-page decision released yesterday, found that the lost pension, potentially worth between $659,000 and more than $1 million, amounted to an “excessive fine” given the nature of the crimes that Edward Bettencourt committed.

State law allows for the forfeiture of a pension in response to misconduct that is related to a public employee’s job. But Bettencourt and his lawyers have argued that, though his crimes took place while he was on duty, on Police Department equipment, they were not related to his role as a police officer.

They also argued that even if they were found to be — as the Appeals Court did earlier this year — the penalty is far in excess of what the crime warrants.

On this point, Nestor agreed.

“Given Mr. Bettencourt’s conduct and the harm incurred by the officers and the public, I find that the forfeiture of his lifetime pension benefits and health insurance coverage is an excessive fine and is prohibited by the Eighth Amendment to the United States Constitution,” Nestor concluded.

His decision could now be appealed by the state Public Employee Retirement Administration Commission, potentially setting off further litigation. A lawyer for PERAC could not be reached yesterday for comment on whether the agency will appeal.

Bettencourt, at the time a 24-year veteran of the Peabody Police Department, was the watch commander on Christmas night 2004.

While at the station, using a department computer, Bettencourt used the names, dates of birth and Social Security numbers of 20 fellow Peabody officers and one Salem officer to create fraudulent accounts on the Civil Service website, which then allowed him to check each individual officer’s exam scores.

It’s never been proven just why Bettencourt wanted the scores or what he intended to do with them.

But after a trial in Suffolk Superior Court in 2008, Bettencourt was convicted of 21 counts of improperly accessing a computer system. He was fined $10,500 (a fine he has not yet paid while the case has been under appeal).

Bettencourt’s appeal of his conviction has also been stayed while the issue of his pension has worked its way up and down the courts. Bettencourt’s pension was initially awarded by the city’s retirement board, a ruling PERAC appealed to a Peabody District Court judge. That judge, now retired, found no relationship between his crimes and his job, and ordered the pension reinstated.

PERAC appealed that to a Suffolk Superior Court judge, who also found the conduct was not job-related, and later the Appeals Court.

The Appeals Court found that the crimes were, in fact, related to his work as a police officer. But the court also ruled that Bettencourt was entitled to pursue his other legal argument in the case, that the penalty was excessive and thus violated the Constitution’s protection against cruel and unusual punishment or excessive fines. The Appeals Court sent the case back to Peabody District Court to consider that one issue.

Last month, Nestor, the acting presiding judge, conducted a hearing. Normally, the case would have gone back to the same judge who ruled on it the first time, but Judge James O’Leary has retired since ruling on the case.

“There is no question that the privacy rights of his fellow officers were violated and that there was a breach of the public trust,” Nestor wrote. “Nothing in the record, however, illustrates any personal benefit, profit or gain by the plaintiff (Bettencourt). PERAC goes to great length to speculate about how knowledge of the scores might have influenced additional test-taking decisions or the interview process. ... The criminal act resulted in a loss of privacy for individuals and a violation of the public trust, but no direct gain by the defendant.”

The judge cited cases that have held that a forfeiture of property is punitive, in addition to whatever other penalties are imposed in a case.

PERAC argued that Bettencourt did not “own” his pension until it was paid out. Nestor rejected that argument, saying that the pension is something an employee knows that he is earning during his employment and that it can be taken only under certain circumstances.

Bettencourt’s lawyer, Paul Hynes, could not be reached for comment before last night’s Salem News deadline.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.