SalemNews.com, Salem, MA

Local News

November 8, 2012

Judge: Pension loss is excessive

Orders Bettencourt retirement pay reinstated

(Continued)

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.”

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