DiMasi v. State Bd. of Ret.

• Decision Date: 21 April 2016
• Docket Number: SJC–11971.
• Citation: 474 Mass. 194,48 N.E.3d 452
• Parties: Salvatore F. DiMASI v. STATE BOARD OF RETIREMENT & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

474 Mass. 194

48 N.E.3d 452

Salvatore F. DiMASI

v.STATE BOARD OF RETIREMENT & others.¹

SJC–11971.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 9, 2016.

Decided April 21, 2016.

Thomas R. Kiley, Boston, for the plaintiff.

David R. Marks, Assistant Attorney General, for the defendants.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

SPINA

, J.

After the plaintiff, Salvatore F. DiMasi, was convicted of several violations of Federal law, the State Board of Retirement (board) unanimously approved the forfeiture of his retirement allowance in accordance with G.L. c. 32, § 15(4)

, and a judge in the Boston Municipal Court Department affirmed the board's decision. DiMasi filed a complaint for relief in the nature of certiorari pursuant to G.L. c. 249, § 4

, in the Supreme Judicial Court for Suffolk County. A single justice reserved and reported

the case for determination by the full court. DiMasi contends that a “final conviction” of a criminal offense for purposes of § 15(4)

occurs at the conclusion of the appellate process, not when a sentence is imposed. He further contends that the board improperly has withheld his accumulated total deductions since September, 2011. For the reasons that follow, we conclude that, in the context of pension forfeiture, a “final conviction” occurs when an individual is sentenced. We further conclude that DiMasi is entitled to the return of his accumulated total deductions, together with interest on such deductions from September, 2011, until such time as payment is made.

1. Statutory framework. The provisions of G.L. c. 32, § 15

, “pertain to dereliction of duty by a member of the contributory retirement system for public employees (member).” See State Bd. of Retirement v. Bulger, 446 Mass. 169, 170, 843 N.E.2d 603 (2006) (Bulger ). General Laws c. 32, § 15(4), states as follows:

“In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of [§§ 1–28], inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member. The said member or his beneficiary shall receive, unless otherwise prohibited by law, a return of his accumulated total deductions; provided, however, that the rate of regular interest for the purpose of calculating accumulated total deductions shall be zero”² (emphasis added).

This statutory provision applies to criminal offenses committed on or after its effective date of January 12, 1988. See St. 1987,

c. 697, §§ 47, 135. “Forfeiture of a retirement allowance pursuant to G.L. c. 32, § 15(4)

, is ‘mandatory and occurs by operation of law.... [It] is an automatic legal consequence of conviction of certain offenses.’ ” Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 663–664, 6 N.E.3d 1069 (2014) ( Buonomo ), quoting State Bd. of Retirement v. Woodward, 446 Mass. 698, 705, 847 N.E.2d 298 (2006) (Woodward ). Such forfeiture is intended to deter misconduct by public employees, protect the public fisc, and preserve respect for government service. See MacLean v. State Bd. of Retirement, 432 Mass. 339, 351, 733 N.E.2d 1053 (2000).

2. Factual and procedural background. The facts are taken from the parties' joint statement of agreed material facts, which we have supplemented with undisputed facts from the record. DiMasi, a former Speaker of the Massachusetts House of Representatives, resigned from that position on January 27, 2009. He filed an application with the board on February 11, 2009, seeking a superannuation retirement allowance pursuant to G.L. c. 32, § 5

. The board approved DiMasi's application and began to pay him monthly retirement benefits as of February 27, 2009.³

On June 2, 2009, a Federal grand jury indicted DiMasi in the United States District Court for the District of Massachusetts, alleging various violations of Federal laws.⁴ The indictment pertained to criminal acts purportedly committed by DiMasi while in the performance of his official duties.⁵ On June 9, 2009, the board notified DiMasi that it had received information pertaining to the indictment, that it was initiating a proceeding to review the Federal charges in conjunction with G.L. c. 32, § 15

, and that it

would be withholding further payments of his retirement allowance. The board subsequently voted to suspend DiMasi's retirement allowance, effective November 1, 2009.

DiMasi filed a petition in the Boston Municipal Court seeking judicial review of the board's decision. On July 13, 2010, summary judgment entered in favor of DiMasi. A judge determined, in part, that the existence of the indictment, standing alone, did not provide a sufficient basis for concluding that the charges against DiMasi were true, and that the board did not have the authority under G.L. c. 32, § 15

, to temporarily withhold DiMasi's retirement benefits in the circumstances of this case. Accordingly, the judge ordered the board to resume the payment of DiMasi's retirement allowance and to pay him the amounts that had been withheld. On September 7, 2010, the board appealed that decision by filing a complaint for relief in the nature of certiorari pursuant to G.L. c. 249, § 4, in the Supreme Judicial Court for Suffolk County. A single justice ordered the matter transferred to the Superior Court in accordance with G.L. c. 211, § 4A, for disposition.

In the spring of 2011, a Federal trial was held on the criminal charges against DiMasi and several alleged coconspirators. See notes 4 and 5, supra. On June 15, 2011, the jury found DiMasi guilty of seven counts of the superseding indictment, and not guilty of two other counts.⁶ The board filed an “emergency” motion in the pending action that had been transferred by the single justice to the Superior Court, seeking, among other things, to suspend DiMasi's retirement allowance and to place the benefits that he was owed into an escrow account. Following a hearing, a Superior Court judge denied the board's motion. The judge concluded that because DiMasi had not yet been sentenced, there was no final conviction that mandated the forfeiture of his retirement allowance under G.L. c. 32, § 15

.

On September 9, 2011, DiMasi was sentenced in the United States District Court for the District of Massachusetts to ninety-six months in a Federal prison.⁷ As a consequence, the board voted at a special meeting held on September 15, 2011, to suspend

payment of DiMasi's retirement allowance, commencing with the September 30, 2011, payment. A judgment of conviction against DiMasi was entered in the Federal court on September 27, 2011. The following day, DiMasi filed a notice of appeal in the United States Court of Appeals for the First Circuit.

On October 18, 2011, DiMasi filed in the Boston Municipal Court a petition for review of the board's September 15 decision to suspend his retirement benefits without first conducting a hearing. A hearing officer for the board subsequently held an evidentiary hearing on November 2, 2011, concerning the applicability of G.L. c. 32, § 15

, to DiMasi's retirement allowance. By decision dated August 8, 2012, the hearing officer found that because DiMasi's criminal convictions involved violations of the laws applicable to his office or position, the pension forfeiture provisions of G.L. c. 32, § 15(4), were applicable to his case. The hearing officer stated that DiMasi's convictions became “final” for purposes of § 15(4) when he was sentenced on September 9, 2011. Consequently, the hearing officer continued, DiMasi forfeited his retirement allowance as of that date. The hearing officer further found that pursuant to § 15(4), DiMasi was entitled to the return of his accumulated total deductions, but the interest rate applicable to such deductions was zero per cent. Finally, the hearing officer stated that the board was not entitled to recoup retirement payments made to DiMasi before September 9, 2011, because G.L. c. 32, § 15(6),⁸ is only applicable to members who retire on or after April 2, 2012, and DiMasi retired on January 27, 2009. The board unanimously voted to accept the hearing officer's decision at its meeting on August 30, 2012.

On October 18, 2012, DiMasi filed another petition for review in the Boston Municipal Court.⁹ He asserted that the board improperly terminated his retirement allowance because there was no “final conviction” within the meaning of G.L. c. 32, § 15(4)

, given that he had not yet exhausted his direct appeals. DiMasi also asserted that the board had failed to return his accumulated

total deductions as required by § 15(4)

. The board filed the administrative record as its answer. On November 22, 2013, DiMasi filed a motion for summary judgment.

Meanwhile, on August 21, 2013, the United States Court of Appeals for the First Circuit affirmed DiMasi's criminal convictions and sentences. His subsequent petitions for rehearing were denied. On January 27, 2014, the United States Supreme Court denied DiMasi's petition for a writ of certiorari.

By decision dated April 17, 2014, a judge in the Boston Municipal Court denied DiMasi's motion for summary judgment and affirmed the board's August 30, 2012, decision. The judge pointed out that the only matter of dispute between the parties was when DiMasi's convictions became “final” for purposes of G.L. c. 32, § 15(4)

. After considering the language and intent of the statute, the judge agreed with the board that the term “final” meant the date when DiMasi was sentenced—September 9, 2011—and not the date when all of his direct appeals were exhausted—January 27, 2014.

3. Standard of review. “General Laws c. 249, § 4

, provides for limited judicial review in the nature of certiorari to correct errors of law in administrative proceedings where judicial review is otherwise unavailable.” Bulger, 446 Mass. at 173, 843 N.E.2d 603. See Sheriff of Plymouth County v....