Retirement Forfeiture Violates ‘Excessive Fine’ Clause Of Eighth Amendment

The Eighth Amendment to the United States Constitution is usually known for its prohibition on “cruel and unusual punishments.” A case from the Supreme Judicial Court of Massachusetts illustrates how a different aspect of the Eighth Amendment can have an impact on public employee retirements.

The case involved Edward A. Bettencourt, who was first appointed as a police officer in the City of Peabody in October 1980, and became a member of the Peabody retirement system on November 7, 1982. Bettencourt was promoted to the rank of sergeant around 1990, and promoted again to serve as a lieutenant in 2003.

In the early morning hours of December 25, 2004, Bettencourt was on duty as a watch commander, and he knowingly accessed, through the Internet and without permission, the Massachusetts Human Resources Division computer system, and specifically the HRD Internet site containing individual applicant record information. Gaining the unauthorized access, he viewed the civil service promotional examination scores of 21 other police officers, including four officers who were his direct competitors for a promotion to the position of captain in the Police Department. In order to view the examination scores of these other officers, Bettencourt created a distinct user account for each officer, using the Social Security numbers and birth dates of the officers.

On October 26, 2006, Bettencourt was indicted for unauthorized access to a computer system. On April 4, 2008, at the conclusion of a bench trial, Bettencourt was found guilty on all counts. Bettencourt filed an application for voluntary retirement with the Peabody retirement board on the same day he was found guilty. As of that date, he had served as a Peabody police officer for over 27 years and had been a member of the Peabody retirement system for over 25 years.

On May 23, 2008, after learning of Bettencourt’s convictions, the Board held an evidentiary hearing to determine whether, because of these convictions, Bettencourt remained eligible for his retirement allowance. A majority of the Board concluded that none of the convictions was a “violation of the laws applicable to his office or position,” and thus, his application for retirement was to be processed, subject to the approval of the Public Employee Retirement Administration Commission. The Commission, however, denied Bettencourt’s retirement application because it concluded that Bettencourt’s criminal convictions did relate to his office or position, and therefore, under a provision in the retirement statutes, he was not entitled to receive any retirement allowance. The case was thus teed up for the Supreme Judicial Court of Massachusetts.

The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Court first decided that the forfeiture of Bettencourt’s retirement was a “fine” under the Eighth Amendment. As put by the Court, “at the point that Bettencourt, as a Peabody police officer, became a contributing member of the Peabody retirement system with deductions taken from his salary in accordance with governing statutes and rules, he acquired a protected interest in the retirement allowance provided by the retirement system that amounted to a property interest. This is not to say that Bettencourt, or any public employee, may not lose his right to receive his retirement allowance as a result of committing a crime connected to his employment. Rather, it is precisely this property interest that the employee is required to forfeit, and the forfeiture effects what is in substance an extraction of payments from the employee to the Commonwealth.”

The Court next found that the retirement forfeiture was also a “punishment” under the Eighth Amendment, holding: “We conclude that the forfeiture required by pension statutes qualifies as punishment. Accordingly, because the forfeiture does involve an ‘extraction of payments’ and is punitive, it is a fine within the meaning of the excessive fines clause of the Eighth Amendment. We turn to the question whether the forfeiture is excessive.”

On the key question of whether the forfeiture was excessive, and thus prohibited by the Eighth Amendment, the Court first cited evidence that Bettencourt would face forfeiture of $659,000 at a minimum, plus the value of health insurance benefits, and noted that Bettencourt accrued his interest in the forfeited benefits over more than 25 years of public service.

The Court then ruled: “We are called upon to gauge the degree of Bettencourt’s culpability and, in that regard, to consider the nature and circumstances of his offenses, whether they were related to any other illegal activities, the aggregate maximum sentence that could have been imposed, and the harm resulting from them. In sentencing Bettencourt, the trial judge observed that there was no evidence that Bettencourt made any use at all of this private information – i.e., no evidence of any gain to Bettencourt other than the satisfaction of his curiosity; the essence of his crime, in substance, was one of snooping.

“Second, Bettencourt’s offenses were wholly unrelated to other illegal activities. Bettencourt had no prior criminal record, and there is nothing before us suggesting that he had engaged in any criminal or illegal misconduct besides this one episode of accessing the computer files without authority. Third, the maximum punishment authorized by the Legislature for a single offense under the statute under which Bettencourt was convicted, a misdemeanor, is imprisonment in a house of correction for 30 days and a fine of not more than $1,000, which suggests to us that the Legislature did not view this crime as a grave, serious offense.

“We conclude that the complete forfeiture of Bettencourt’s retirement benefits in excess of $659,000, accrued over a lengthy career as a full-time municipal police officer, was not proportional to the gravity of the underlying offenses of which he was convicted. In sum, the forfeiture violates the excessive fines clause of the Eighth Amendment.”

The Court ordered that Bettencourt’s pension be restored.

Public Employee Retirement Administration Commission v. Bettencourt, 474 Mass. 60 (Mass. 2016).