Posted by Justin Rice December 7, 2011 03:05 PM
The Public Employee Retirement Administration Commission is appealing decisions made by both the Peabody District Court and the Suffolk Superior Court determining that Bettencourt is entitled to his $70,000-a-year pension.
“At a minimum the public has the right to expect that a police officer will refrain from committing a crime while on duty,” Judith Corrigan, PERAC’s acting general council said after the hearing at the State Appeals Court at the John Adams Courthouse in Boston.
Corrigan said the panel’s ruling on whether Bettencourt is entitled to his pension could take as long as 90 days.
In 2008, Bettencourt was convicted of 21 counts of obtaining unauthorized access to an online state human resources database. (It’s unclear how Bettencourt obtained the birthdays and social security numbers of 21 police officers needed to view their civil service promotional exam scores. His motives are also unclear.).
Later that year, the Peabody Retirement Board determined Bettencourt was entitled to his pension because the conviction did not constitute violations of the “law applicable” to his position. The Board sited a 1996 case (Gaffney v. Contributory Ret.) that set the precedent that criminal activity has to be connected with the office of position” in order for an employee to have their pension revoked.
In other words, the question before the court is whether Bettencourt could have been capable of committing the same crime if he was not a police officer
Assistant Attorney General Peter Sacks, who represented PERAC in court today, argued that Bettencourt could not have committed the crimes had he not used information available to him as a police officer.
“Knowing who was taking the [promotional] exam was information privileged to him as a an officer,” Sacks argued in court.
Associate Justice Joseph A. Trainor also questioned how Bettencourt would have obtained the information if he wasn’t a police officer.
“Well that’s never been established in the record your honor,” Bettencourt’s lawyer, Paul T. Hynes, said during the hearing. “There’s nothing in the record establishing you had to be a police officer to commit this crime.”
“How would you get the social security numbers of 20 police officers?” Trainor fired back.
Hynes speculated that someone could’ve given them to him or he could have gotten them from a union roster.
“This was not a case of him being accused of manipulating scores, moving someone up or down,” Hynes said later in the hearing. “He was unfortunately a nosy individual.”
After the hearing, Bettencourt declined to comment.
Corrigan said if the panel decides in favor of PERAC than the case would likely go back to the Peabody District court to determine if Bettencourt’s pension being revoked is an appropriate punishment for his crimes.
“Many people when they forfeit their pension argue that it’s an excessive fine under the Eighth Amendment,” she said before adding. “[There would] have to be an analysis of the person’s life expectancy, the person’s beneficiaries’ life expectancy, actuary of tables; things that have not been developed in this record because Bettencourt has won twice before.”
Justin A. Rice can be reached at email@example.com.