Lieutenant Does Not Forfeit Pension For Illegally Accessing Civil Service Files

A Massachusetts state statute calls for the forfeiture of a public employee’s pension “after final conviction of a criminal offense involving violation of the laws applicable to his office or position.”

Edward Bettencourt was a lieutenant with the Peabody, Massachusetts Police Department. On Christmas Day, 2004, while on duty as watch commander, Bettencourt used an office computer to access the Massachusetts Human Resources Division Applicant Record Information site in order to view the civil service examination scores of 21 police officers. To access the examination scores of these officers, Bettencourt needed each officer’s Social Security number and date of birth. In addition, access to the examination scores required Bettencourt to create an account and password for each officer.

On October 26, 2006, Bettencourt was indicted by a grand jury on 21 counts of violating a state law prohibiting unauthorized access to a computer system. After a trial, Bettencourt was convicted on all 21 counts, and was sentenced to pay a fine of $500.00 for each violation.
When his application for his pension was denied by a retirement commission because of his convictions, Bettencourt challenged the denial in court. The Massachusetts Superior Court sided with Bettencourt and upheld his pension application.

The Court reasoned that “there are no fixed standards or rules for deciding when there is a direct link between a criminal conviction and a member’s office or position. Rather, whether that link exists can only be determined by careful consideration of the elements of the crime and the nature of the member’s job.

“Although accessing a computer system without authorization is certainly a serious offense, albeit a misdemeanor, the Court does not find that it places at risk the integrity of the Peabody Police Department. When Bettencourt viewed the civil service scores of his colleagues, he exhibited a very substantial failure of good judgment and lack of respect for his colleagues’ personal information. In some sense, therefore, this conduct could also be said to show a lack of respect for the law, as would any conduct that violated a law, but it certainly did not violate a fundamental tenant of his job as a police officer.

“While the criminal conduct occurred while Bettencourt was on duty, it was not enabled by the official services that he was then performing. Rather, the fact that Bettencourt was on duty was incidental to the conduct at issue. In sum, accessing the computer system was not inherently in conflict with the role of a police officer as it is generally perceived by the public. There is no evidence that Bettencourt sought personal gain through his unlawful conduct or to advantage or disadvantage anyone else. His actions did not show a lack of concern for public safety or property, and they did not hinder any other officer in the performance of his or her duties, for example by hindering an investigation. Unless this Court were to find that any criminal conviction of a police officer requires pension forfeiture, which would appear to be inconsistent with legislative intent, Bettencourt’s criminal conviction ought not result in the loss of his pension.”

Public Employee Retirement Admin. Com’n v. Bettencourt, 2010 WL 3279672 (Mass. Super. 2010).

This article appears in the November 2010 issue