Officer’s Criminal Convictions For Accessing Other Officers’ Computer Records May Result In Pension Forfeiture

On October 26, 2006, Edward Bettencourt, a former member of the Peabody, Massachusetts Police Department, was convicted of 21 counts of accessing an unauthorized computer system. The same day, Bettencourt filed an application for retirement with the Peabody Retirement Board. After a hearing, the Board issued a decision approving Bettencourt’s retirement, ruling that his convictions did not violate a state law calling for pension forfeiture if an officer engages in “criminal activity connected with his office or position.” After a tortuous path of appeals, the matter wound up in the Massachusetts Court of Appeals.

The Court found that the forfeiture statute applied to Bettencourt. The Court concluded that “the commission of Bettencourt’s crime was directly linked to his office or position, and that the trial court judge substantially erred in his ruling to the contrary. Bettencourt’s crimes were not mere personal transgressions wholly unrelated to his office. The trial court judge acknowledged that Bettencourt’s criminal activity involved police equipment and targeted fellow police officers. He illegally accessed the files of the other officers while on duty in his official capacity as a watch commander, on department premises, and while using a department computer. Importantly, his job as a watch commander entailed the supervision of other officers, and he impersonated other officers on-line to facilitate his illegal access to the department computer system.

“Further, although no direct evidence was presented of exactly how Bettencourt obtained the Social Security numbers of the officers he impersonated, it strains credulity to suggest that he did not obtain at least some of this information through some official means. Based on the facts of this case we have no choice but to conclude that the direct link to Bettencourt’s job is present here.”

Bettencourt also argued that the forfeiture of his pension constituted an excessive fine in violation of the Eighth Amendment’s prohibition on cruel and unusual punishments. Because the trial court did not decide that issue, the Court remanded the case back to the trial court for development of a record on Bettencourt’s Eighth Amendment claim.

Public Employee Retirement Admin. Com’n v. Bettencourt, 2012 WL 414034 (Mass. App. Ct. 2012).