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Dell'isola v. State Board of Retirement

Appeals Court of Massachusetts, Suffolk

December 15, 2017

MICHAEL DELL'ISOLA
v.
STATE BOARD OF RETIREMENT another [1]

          Heard: September 8, 2017.

         Civil action commenced in the Superior Court Department on December 31, 2014.

         The case was heard by Linda E. Giles, J., on motions for judgment on the pleadings.

          David R. Marks, Assistant Attorney General, for State Board of Retirement.

          Nicholas Poser for the plaintiff.

          Present: Rubin, Neyman, & Henry, JJ.

          HENRY, J.

         Michael Dell'Isola was a correction officer when he committed the crime of possession of cocaine. The State Retirement Board (board) subsequently conducted a hearing and made factual findings that Dell'Isola came into possession of the cocaine only as a result of an arrangement with an inmate who had been in his custody and who at the time remained in the custody of the Middlesex County sheriff's office. This case thus requires us to consider whether, pursuant to G. L. c. 32, § 15(4), Dell'Isola's conviction requires forfeiture of his retirement allowance.[2] General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that "[i]n no event shall any member [of the State employees' retirement system] 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." Because how Dell'Isola came into possession of the cocaine was factually linked to his position as a correction officer, we hold that his criminal offense falls within the purview of § 15(4) and he is ineligible to receive a retirement allowance.

         Background.

         In September, 2012, a jury convicted Dell'Isola of one charge of possession of cocaine. The board later held a hearing regarding Dell'Isola's application for a superannuation allowance. The board made the following findings of fact based on an evidentiary hearing and largely based on a transcript of Dell'Isola's own statements during a postarrest interview with the State police.

          In 2011, Dell'Isola was a sergeant and a senior correction officer with the Middlesex County sheriff's office, having served in the office since 1982. An inmate under Dell'Isola's supervision at the Middlesex County jail in Cambridge, identified only as "George, " offered Dell'Isola "a large amount of cash" and told Dell'Isola to contact George's mother.[3]Dell'Isola met with George's mother at a Dunkin' Donuts and received $1, 000 from her. George was later transferred to the Billerica house of correction, another facility overseen by the Middlesex County sheriff's office. While Dell'Isola was speaking by telephone with a fellow officer at that Billerica facility, George, who was with that officer, [4] shouted that Dell'Isola should call George's mother. Dell'Isola subsequently called George's mother, who told Dell'Isola that she first needed to speak with George. George's mother later told Dell'Isola he needed to speak with George's "cousin, " who later called Dell'Isola.[5] The cousin told Dell'Isola that he heard that Dell'Isola was "looking, " and asked if he wanted "some" and if he wanted it "flake" or "solid." Dell'Isola responded that he would take half "flake" and half "solid." They agreed for the cousin to give Dell'Isola an ounce of cocaine as well as $2, 500 in cash.

         In May, 2011, Dell'Isola, while off duty, met George's cousin at a Starbucks in Woburn. Dell'Isola did receive from the cousin the expected money, which he concedes he and George had previously agreed would occur, and one ounce of cocaine. After Dell'Isola left the Starbucks he was immediately arrested. The cousin was revealed to be an undercover State police trooper.

         Dell'Isola was arrested on a charge of trafficking in over twenty-eight grams of cocaine, in violation of G. L. c. 94C, § 31 (a.) (4); he was convicted of the lesser-included offense of possession of cocaine. He was not charged related to the receipt of money from George, either via George's mother or his "cousin."

         The board determined that, given the facts and circumstances of the conviction, in particular Dell'Isola's relationship and arrangements with the inmate George, Dell'Isola forfeited his retirement allowance under § 15(4) . A judge of the Boston Municipal Court affirmed the board's decision. Dell'Isola filed for certiorari review by the Superior Court, which reversed the ...


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