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DiMasi v. State Board of Retirement

Supreme Judicial Court of Massachusetts, Suffolk

April 21, 2016

SALVATORE F. DiMASI
v.
STATE BOARD OF RETIREMENT & others. [1]

Heard: February 9, 2016.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 16, 2014.

The case was reported by Cordy, J.

Thomas R. Kiley for the plaintiff.

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

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

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 (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 (2014) (Buonomo), quoting State Bd. of Retirement v. Woodward, 446 Mass. 698, 705 (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 (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, ยง 5. The ...


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