Ret. Bd. of Somerville v. Buonomo

• Decision Date: 02 April 2014
• Docket Number: SJC–11413.
• Citation: 467 Mass. 662,6 N.E.3d 1069
• Parties: RETIREMENT BOARD OF SOMERVILLE v. John BUONOMO & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 662

6 N.E.3d 1069

RETIREMENT BOARD OF SOMERVILLE

v.John BUONOMO & others.¹

SJC–11413.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Jan. 9, 2014.

Decided April 2, 2014.

Matthew J. Buckley for the plaintiff.

Nicholas Poser, Boston, for the defendant.

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

SPINA, J.

In 2009, John Buonomo was convicted of eighteen counts of breaking into a depository, G.L. c. 266, § 16, eight counts of larceny under $250, G.L. c. 266, § 30(1), and eight counts of embezzlement by a public officer, G.L. c. 266, § 51. He committed these offenses during the time that he held office as register of probate of Middlesex County. At issue is whether, pursuant to G.L. c. 32, § 15, and as a consequence of his convictions, Buonomo forfeited the retirement allowance that he previously had earned as a member of the board of aldermen for the city of Somerville. Based on the language and intent of G.L. c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, we conclude that even though Buonomo's convictions involved violations of the laws applicable to his office or position as register of probate, he nonetheless forfeited his entitlement to a retirement allowance from the retirement board of Somerville (board) related to his prior service as a member of the board of aldermen. There is no requirement in § 15(4) that the public office to which a member's criminal convictions relate be the same as the public office from which that member is receiving a retirement allowance. Accordingly, we reverse the decision of the Superior Court that reached a contrary conclusion.²

1. Statutory framework. The provisions of G.L. c. 32, § 15, pertain to dereliction of duty by a member of a contributoryretirement system for public employees. See State Bd. of Retirement v. Bulger, 446 Mass. 169, 170, 843 N.E.2d 603 (2006). General Laws c. 32, § 15(4), provides:

“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.” ³

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.” State Bd. of Retirement v. Woodward, 446 Mass. 698, 705, 847 N.E.2d 298 (2006), quoting MacLean v. State Bd. of Retirement, 432 Mass. 339, 342–343, 733 N.E.2d 1053 (2000).

2. Factual and procedural background. On January 3, 2000, Buonomo retired from his position as a Somerville alderman and began receiving pension benefits from the board. In November, 2000, he was elected register of probate of Middlesex County, and he commenced his term on December 8, 2000.⁴ After his election, Buonomo was eligible to join the State employees' retirement system as a member in service, but he chose instead to continue receiving his retirement allowance from the board. See G.L. c. 32, § 3(2) ( a ) (iv). As a consequence, he remained an inactive member of the Somerville retirement system, see note 3, supra, while at the same time working and collecting his salary as register of probate. See G.L. c. 32, § 91 ( a ).

On August 6, 2008, Sergeant Brian P. Connors of the State police filed an application in the District Court for the issuance of a criminal complaint charging Buonomo with eighteen counts of breaking into a depository, eight counts of larceny under $250, and eight counts of embezzlement by a public officer. In support of the application, Sergeant Connors alleged that in June, 2008, State police assigned to the Public Protection, Anti–Terrorism, Corruption and Technology Unit of the Middlesex County district attorney's office commenced an investigation into suspected ongoing theft of monies from cash vending machines attached to photocopiers located in the registry of deeds section of a building in Cambridge that housed the Middlesex South registry of deeds as well as the Middlesex Division of the Probate and Family Court Department and the registry of probate.⁵ Initial estimates of the losses were reported to be approximately $2,000 per month over the course of eighteen months. Personnel from the registry of deeds and other witnesses identified Buonomo as someone who had been observed gaining access to several of the cash vending machines without authority or permission to do so.

As a result of the information they gathered, officers conducted video surveillance for six weeks, focusing on two geographical areas where the machines were located. On divers dates between June 23 and August 5, 2008, Buonomo was observed unlocking machines in the registry of deeds section of the building with a key, opening them, removing money, closing the machines, and then leaving the area.⁶ Marked currency was used during the course of the investigation.

Officers interviewed Buonomo at the registry of deeds on August 6 and then placed him under arrest. The following day, approximately one month before the return of indictments in the Superior Court, criminal complaints ⁷ issued in the District Court charging Buonomo with eighteen counts of breaking into a depository, eight counts of larceny under $250, and eight counts of embezzlement by a public officer.⁸ On October 15, 2009, he pleaded guilty to all thirty-four charges in the Superior Court. Buonomo was sentenced to two and one-half years in a house of correction on the charge of breaking into a depository; he was given a concurrent sentence of two years on the charge of embezzlement by a public officer; he was placed on supervised probation for ten years to take effect from and after his house of correction sentences; and he was ordered to pay a fine of $1,000.⁹

In a letter dated November 24, 2009, the board notified Buonomo that it intended to revoke his pension pursuant to G.L. c. 32, § 15(3) and (4). At Buonomo's request, the board held an evidentiary hearing on the matter. By decision dated January 21, 2010, the board informed Buonomo that, in light of his criminal convictions, it had voted to forfeit his pension under § 15(3) and (4).

Pursuant to G.L. c. 32, § 16(3) ( a ), Buonomo appealed the board's decision to the District Court, which reversed the board's decision and reinstated Buonomo's pension.¹⁰ In a memorandum of decision and order dated May 28, 2010, a judge determined, among other things, that the board lacked a basis for revoking Buonomo's pension because the crimes of which Buonomo was convicted did not arise from or otherwise involve his work as a Somerville alderman, for which he was receiving the retirement allowance.

On July 14, 2010, the board 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.¹¹ The single justice ordered the matter transferred to the Superior Court in accordance with G.L. c. 211, § 4A, for disposition. The parties proceeded to file cross motions for judgment on the pleadings. In a memorandum of decision and order dated April 27, 2012, a judge allowed Buonomo's motion, denied the board's motion, and entered a judgment affirming the decision of the District Court.

The judge stated that although it was undisputed that Buonomo's criminal convictions were directly related to his position as register of probate, they were not related to his position as a Somerville alderman. Buonomo's misconduct, the judge continued, neither occurred while he was an alderman nor involved any of his duties in that capacity. The judge said that although the enactment of G.L. c. 32, § 15(4), broadened the range of crimes leading to forfeiture of retirement benefits, it still required a nexus between the offenses and the member's office or position. In the judge's view, because the board was unable to establish a direct link between Buonomo's criminal convictions and his position as a Somerville alderman, the board could not initiate forfeiture proceedings. Therefore, the judge concluded that the District Court judge did not commit a substantial error of law by holding that Buonomo was not required to forfeit his retirement allowance under § 15(4). The board appealed the judge's decision, the case was entered in the Appeals Court, and we transferred it to this court on our own motion.

3. Standard of review. The scope of judicial review for an action in the nature of certiorari under G.L. c. 249, § 4, is limited. See Bulger, 446 Mass. at 173, 843 N.E.2d 603. “Certiorari allows a court to ‘correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff.... In its review, the court may rectify only those errors of law which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public.’ ” Id., quoting Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 790, 724 N.E.2d 288 (2000). See State Bd. of Retirement v. Woodward, 446 Mass. at 703–704, 847 N.E.2d 298.

4. Discussion. The thrust of the board's argument is that, although the Superior Court judge correctly determined that pursuant to G.L. c. 32, § 15(4), there must be a direct link between Buonomo's office or position and his criminal convictions, the judge improperly concluded that the relevant office or position was the one from which Buonomo was receiving a retirement allowance. In the board's view, the judge's interpretation of § 15(4) had the effect of reading into the statutory language a...