SalemNews.com, Salem, MA

October 4, 2012

Lawyer: Penalty too severe

Former lieutenant's loss of pension an 'excessive fine,' his attorney says

BY JULIE MANGANIS STAFF WRITER
The Salem News

---- — PEABODY — By one estimate, the pension of former Peabody police Lt. Edward Bettencourt is worth $659,000, not including health benefits. His own lawyer puts the figure much higher, at more than $1 million.

And that, his lawyer argued yesterday, is too high a price to pay for what he characterized as “being curious and nosy.” It amounts to a violation of Bettencourt’s right against “excessive fines” under the Eighth Amendment, attorney Paul Hynes said during a hearing yesterday in Peabody District Court.

But state pension officials beg to differ, saying that Bettencourt’s actions — using birth dates and Social Security numbers of 21 fellow police officers to create phony accounts that let him see their Civil Service exam scores — were a “violation of the public trust.” They contend that Bettencourt should forfeit his pension under a state law that calls for such a sanction when a public employee is found guilty of misconduct relating to his or her job.

Lawyers for both sides were trying to convince Peabody District Court Judge Matthew Nestor during a hearing yesterday morning to see things their way. The hearing comes in the wake of an Appeals Court ruling that Bettencourt’s misconduct was related to his job as a police officer, triggering the forfeiture statute. The Appeals Court left open the question of whether the penalty was too severe.

Nestor said he would issue a decision within one to two weeks.

Bettencourt, a 26-year veteran of the Peabody Police Department, was found guilty in 2008 of 21 counts of misuse of a computer system, charges that stemmed from an incident while Bettencourt was working on Christmas night in 2004.

Bettencourt was the shift commander that evening. While on duty, he went online, to the state’s Civil Service website, where he proceeded to enter the personal information of 20 Peabody colleagues and a Salem officer, creating accounts that allowed him to view their Civil Service test scores online.

To this day, “We still don’t know if Mr. Bettencourt got any benefit,” said Judith Corrigan, assistant general counsel to the Public Employees Retirement Administration Commission (PERAC), during a hearing yesterday in Peabody District Court.

Bettencourt’s conviction resulted in a fine of $10,500, which has been stayed while he appeals.

While the Peabody Retirement Board went on to approve his $70,000-a-year pension, PERAC overruled that decision, touching off a lengthy legal battle over whether a state law barring the payout of pensions for public employees convicted of official misconduct applied in Bettencourt’s case.

A Peabody District Court judge (who is now retired) and a Suffolk Superior Court judge both decided that the misconduct was not directly related to Bettencourt’s duties and ordered the pension reinstated.

But earlier this year, the state Appeals Court disagreed, finding that the crimes were, in fact, related to Bettencourt’s duties.

The Appeals Court, however, sent the case back to Peabody District Court to be reconsidered on the issue of whether a pension forfeiture amounts to an excessive penalty, an issue Bettencourt and his lawyer had also argued four years ago but was never addressed by a judge.

Hynes, representing Bettencourt, argued it was “grossly disproportionate to the offense.”

Hynes suggested that PERAC failed to consider the severity of other cases, comparing Bettencourt’s misconduct with that of a former state senator, William “Biff” MacLean, convicted of various corruption charges, and with a former Quincy plumbing inspector convicted of breaking into City Hall to steal negative reports from his personnel file as he sought a promotion.

“So, it’s a sliding scale, is that what you’re telling me?” Nestor shot back. The judge also questioned whether Hynes was asking him to delve back into the issue of whether Bettencourt’s actions were work-related.

Hynes responded with a hypothetical scenario: two longtime Registry of Motor Vehicles employees retire and it’s later discovered that both had stolen from the agency. One stole on a daily basis for decades, while the other did so just once. Hynes suggested that it would be unfair for both to lose their pensions.

But that’s exactly how state courts have come down on the issue, Corrigan argued, calling it a “harsh” law but one that is intended to serve as a deterrent against corruption and misconduct.

It’s not a punishment, as the Eighth Amendment seems to require, she argues. “It’s civil in nature,” Corrigan told the judge. “It does have a deterrent effect, but it’s not intended to be punitive.”

And it wasn’t just one crime, she argued — Bettencourt created 21 accounts that night. Corrigan suggested, citing the Appeals Court ruling, that it’s also reasonable to infer that Bettencourt got the Social Security numbers and birth dates of his colleagues because as a police officer, he would have access to such information.

Still, the judge was concerned that there was no evidence that Bettencourt stood to gain anything from the snooping.

The judge also questioned Corrigan’s argument that Bettencourt does not technically “own” his pension.

Bettencourt has already received the $102,000 he paid in to the state retirement system during his career.

The Appeals Court is currently deciding on a case involving former Haverhill highway superintendent James Flaherty, who was convicted of stealing city supplies for use by his own side business. During a hearing last week, his attorney also argued that forfeiture of Flaherty’s $65,000-a-year pension amounted to an excessive fine.

The outcome of that case could potentially affect any further appeals in Bettencourt’s case.

Bettencourt is also continuing to appeal his criminal conviction.

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