By Alan Burke
Staff writer
—
BOSTON — Former Peabody police Lt. Edward Bettencourt still has his $70,000-a-year pension because he wasn't seeking personal gain when he broke the law by stealing a look, via computer, at his colleagues' Civil Service scores.
And he did not endanger the public safety or property, according to Suffolk Superior Court Judge Mitchell Kaplan, or hinder any fellow officer in the performance of his duties or befoul any ongoing investigation.
Nor, according to the memo obtained yesterday outlining Kaplan's decision, is there evidence that Bettencourt was trying to further his career with the information he gathered.
The crime, ruled Kaplan, must be directly linked to his office in order to disqualify Bettencourt from receiving his pension.
"In this present case, the only link is that Bettencourt was a police officer who committed a crime," Kaplan said. "That is insufficient."
The judge added, "Accessing the computer system was not inherently in conflict with the role of a police officer as it is generally perceived by the public."
In making his decision, Kaplan cited a case involving one of the most notorious names in the commonwealth. John Bulger — youngest brother of alleged gangster and murderer James J. "Whitey" Bulger and former Massachusetts Senate President William Bulger — was forced from his position as Juvenile Court clerk magistrate in Boston after pleading guilty to perjury and obstruction of justice in the aftermath of Whitey's escape from arrest.
Subsequently, John Bulger lost his post and was denied his pension. On appeal, the Supreme Judicial Court ruled against him, noting, "The nature of Bulger's particular crimes cannot be separated from the nature of his particular office when what is at stake is the integrity of our judicial system."
Kaplan commented, "Bulger teaches that there are no fixed standards or rules for deciding when there is a 'direct link' between a criminal conviction and a member's office or position." Thus, the circumstances must be carefully weighed in each case.
The Public Employee Retirement Administration Commission argued that because Bettencourt's job required upholding the law, his crime was linked to his work.
"The court finds that the commission's argument sweeps too broadly," Kaplan said. The law, he noted, was narrowly drawn by the Legislature.
He did acknowledge that Bettencourt's actions "exhibited a very substantial failure of good judgment and a lack of respect for his colleagues' personal information."
Bettencourt was convicted in 2008 of unlawfully accessing state Civil Service records on 21 fellow officers, a misdemeanor. This happened Christmas Day 2004, while he was acting as watch commander.
The veteran officer paid a $10,500 fine and retired, and the Peabody Retirement Board allowed him to keep his pension.
The commission went to court hoping to reverse that decision. They intended to return Bettencourt's contributions to the retirement system and leave it at that. Last year, however, Peabody District Court Judge James O'Leary upheld the Peabody board's decision, saying there was no "direct link" between the crime and Bettencourt's position.
The commission appealed to the Suffolk Superior Court, where Judge Kaplan has publicly aired his "struggle" in coming to a fair decision.
Commission lawyer Judith Corrigan, contacted before the judge's explanation reached her, declined to comment on his decision. Bettencourt's lawyer, Paul Hynes, did not respond to a phone call.
"Pension forfeiture will follow conviction of a crime only when the crime is directly linked to the member's office or position," Kaplan wrote in his decision.
