SalemNews.com, Salem, MA

January 29, 2014

Judge rules Bettencourt not entitled to pension

Dismisses former police lieutenant's claim of excessive fine

BY JULIE MANGANIS
STAFF WRITER

---- — PEABODY — It’s been nearly a decade since then-Peabody police Lt. Edward Bettencourt got nosy while working as the watch commander on the midnight shift on Christmas 2004.

To this day, no one knows for sure why he used the Social Security numbers and birth dates of 21 colleagues to create bogus online accounts that let him take a peek at their Civil Service exam scores. In 2008, after a jury-waived trial, he was convicted of 21 counts of improperly accessing a computer.

The punishment in the case was a $10,500 fine.

But when state retirement officials moved to take away Bettencourt’s pension, estimated at being worth between $659,000 and $1 million, based on misconduct in the course of his employment as a police officer, that touched off another legal battle.

Last week, a Suffolk Superior Court judge ruled that the forfeiture of the pension was not a violation of Bettencourt’s Eighth Amendment protection against an “excessive fine.” He dismissed Bettencourt’s appeal.

In a ruling that is likely to be further appealed, Judge Garry Inge concluded that because a pension is something that is contingent on a public employee’s completion of service without engaging in criminal misconduct related to the job, withdrawing it is not the same as imposing a “fine.”

Inge, who reviewed cases from around the country and the U.S. Court of Appeals, concluded that “forfeiture of a pension pursuant to (Massachusetts law) is not a payment to a sovereign considered as a fine for the purposes of the Eighth Amendment.”

The question of whether Bettencourt’s snooping was related to his job was also the subject of lengthy court proceedings. After a Peabody District Court judge concluded that it was not job-related, the Public Employee Retirement Administration Commission appealed.

Ultimately, the state Appeals Court concluded that Bettencourt’s actions were related to his employment. But in the same ruling, the court ruled that Bettencourt was entitled to a hearing on the issue of whether the pension forfeiture violated his Eighth Amendment rights.

That sent the case back to Peabody District Court; in 2012, Judge Matthew Nestor found that the forfeiture was excessive, and PERAC then appealed to Suffolk Superior Court.

After a hearing earlier this month, Inge reversed Nestor’s finding.

Since state law requires that an employee remain “free from criminal convictions related to an employee’s office,” Inge wrote, “failure to satisfy that condition means Bettencourt had no right to a pension. Without such a right, he had nothing to pay to the Commonwealth, and the Eighth Amendment does not apply.”

Judith Corrigan, an attorney with PERAC, said this case could be the first time the issue of whether a pension forfeiture constitutes a “fine” comes before the state’s appellate courts if Bettencourt chooses to appeal.

Bettencourt’s attorney for the pension appeals, Paul Hynes, did not return a call seeking comment on whether he will appeal.

Bettencourt was paid approximately $102,000, the total of his contributions to the pension system during his 26-year career, according to PERAC records, but he has not been paid any additional funds.

Bettencourt is also again challenging his 2008 conviction. If the conviction were to be overturned, that would make him eligible for his pension again.

Last month, another Suffolk Superior Court judge, Mitchell Kaplan, denied Bettencourt’s second motion for a new trial, in which he contended that the judge who found him guilty in 2008 was given inaccurate information.

His attorney in the criminal appeal is expected to update the Appeals Court today on the status of the case, according to the case docket.

While that appeal is pending, Bettencourt has not been required to pay the $10,500 fine.

Bettencourt is the father of current Peabody Mayor Ted Bettencourt.

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