Dell'Isola v. State Bd. of Ret. Another . ( 2017 )

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16-P-963 Appeals Court
MICHAEL DELL'ISOLA vs. STATE BOARD OF RETIREMENT
another1.
No. 16-P-963.
Suffolk. September 8, 2017. - December 15, 2017.
Present: Rubin, Neyman, & Henry, JJ.
Retirement. Public Employment, Forfeiture of pension.
Correction Officer.
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.
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
1
The Justices of the Boston Municipal Court Department.
2
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.
2
This case was paired for argument with State Bd. of
Retirement v. O'Hare, 92 Mass. App. Ct. (2017).
3
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
3
The board did not make findings as to why George offered
this money. The board did find that Dell'Isola acknowledged
that he had a conversation with George regarding drug dealing,
and that he acknowledged considering to act as an intermediary
with George and the dealers he already knew. While the board
noted that the record "strongly suggests that the agreement with
George included an agreement regarding cocaine," the board did
not make a finding on this question and the point was not
critical to the decision.
4
The identify of that officer was not confirmed.
4
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
5
The record is not clear if Dell'Isola was on or off duty
when speaking with the inmate's mother and cousin.
5
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 judgment issued from the Boston Municipal
Court, and vacated the decision.6 The board then appealed to
this court.
Discussion. a. The record. As a preliminary matter, we
acknowledge the procedural posture of this case. In the vast
majority of pension forfeiture cases, the member of the State
employees' retirement system pleads guilty to one or more
criminal charges, and the facts at the forfeiture hearing are
not disputed. See, e.g., State Bd. of Retirement v. Finneran,
476 Mass. 714, 716 n.3 (2017). In contrast, Dell'Isola's
hearing followed a criminal jury trial, and the jury did not
need to consider the connection between Dell'Isola's job and his
possession of cocaine. The question is to what extent the board
may consider evidence beyond the record established at
Dell'Isola's criminal trial.
In determining the applicability of G. L. c. 32, § 15(4),
the board is authorized to make factual findings and may admit
6
The Boston Municipal Court and Suffolk Superior Court
decisions were entered prior to the release and without the
benefit of both State Bd. of Retirement v. Finneran, 476 Mass.
714 (2017), and Essex Regional Retirement Bd. v. Justices of
Salem Div. of Dist. Ct. Dept. of the Trial Ct., 91 Mass. App.
Ct. 755 (2017).
6
and give probative weight to "the kind of evidence on which
reasonable persons are accustomed to rely in the conduct of
serious affairs." G. L. c. 30A, § 11(2), inserted by St. 1954,
c. 681, § 1. The hearing officer may assign probative value to
evidence "only if it bears the requisite 'indicia of
reliability.'" Scully v. Retirement Bd. of Beverly, 80 Mass.
App. Ct. 538, 545 n.9 (2011), quoting from Doherty v. Retirement
Bd. of Medford, 425 Mass. 130, 140 (1997).
Here, Dell'Isola argues that the board improperly admitted
copies of his postarrest interview transcript and the arrest
report, because both were hearsay and neither was certified as a
copy of an exhibit admitted at the criminal trial, so they
cannot be assumed to be facts that the jury considered in
convicting him. See Retirement Bd. of Somerville v. Buonomo,
467 Mass. 662, 666 n.9 (2014). An assistant district attorney
handling Dell'Isola's criminal case emailed both documents to
counsel for the board, who offered both documents in evidence at
the hearing. At oral argument, Dell'Isola conceded both that
the board may make factual findings based on properly admitted
evidence, and that the transcript was "probably" properly before
the court.
Although the exhibits were hearsay, that alone does not
undercut their admissibility and reliability. See Embers of
Salisbury, Inc. v. Alcoholic Bev. Control Commn., 401 Mass. 526,
7
530-531 (1988) (agency decision based on hearsay evidence,
including trial transcript and stipulation as to anticipated
testimony of witnesses); Commonwealth v. Durling, 407 Mass. 108,
120-122 (1990) (revocation of probation based on two police
reports read in court and accepted in evidence); Costa v. Fall
River Housing Authy, 453 Mass. 614, 627 (2009) (hearsay evidence
may form basis of administrative decision). The hearing officer
and the board found that both documents had the requisite
indicia of reliability. The transcript bore a signature and
certification from an approved court transcriber. Dell'Isola
himself offered the statements in the interview after he was
advised of his right to remain silent, and the statements were
consistent with the narrative of events presented in other
documents. As to the police report, there was no suggestion
that the trooper who filed the report had a personal interest in
the case. The report contained observations and actions from
that trooper, and the narrative was consistent with other
evidence presented. The hearing officer also noted areas in
both exhibits that were assigned decreased probative weight,
including inaudible sections of the interview, and statements in
the arrest report that were relayed from other officers. We
discern no error in the admission of either document.
Dell'Isola further contends that, even if the documents
were admissible, they do not establish the facts underlying his
8
conviction. He asserts that the board can consider only
evidence that the jury considered at his criminal trial, relying
on Scully, 80 Mass. App. Ct. at 543, where we held that a direct
link could not be established relying on facts from charges that
were dismissed or nol prossed in connection with a plea bargain.
Dell'Isola, however, overreads Scully. While forfeiture cannot
be based on criminal conduct that did not result in a
conviction, nothing in Scully prevents the board from
considering the facts related to how Dell'Isola came into
possession of the cocaine. In Scully, we questioned the
reliability of a statement provided by a minor to police, but
assumed for the sake of argument that it was reliable. Id. at
545 n.9. Even with that assumption, the record did not support
forfeiture because there was no direct link between the crime
Scully committed and his position at his workplace. We did not,
however, restrict the board from considering the police report
or like documents. In this case, the exhibits present a
sufficient indicia of reliability, and we similarly do not
restrict the board from making findings from the facts that they
present. The question therefore is not whether the board could
draw facts from these documents, but rather whether those facts
establish a direct link between Dell'Isola's position as a
correction officer and the crime for which he was convicted.
9
b. Forfeiture pursuant to G. L. c. 32, § 15(4). Judicial
review pursuant to G. L. c. 249, § 4, is in the nature of
certiorari and is limited, "allow[ing] a court to 'correct only
a substantial error of law, evidenced by the record, which
adversely affects a material right of the [member]. . . . In
its review, the court may rectify only those errors of law which
have resulted in manifest injustice to the [member] or which
have adversely affected the real interests of the general
public.'" State Bd. of Retirement v. Bulger, 446 Mass. 169, 173
(2006), quoting from Massachusetts Bay Transp. Authy. v. Auditor
of the Commonwealth, 430 Mass. 783, 790 (2000).
As the purpose and operation of § 15(4) has been recently
and thoroughly reviewed in Finneran, supra, we proceed directly
to the question whether there was a direct factual or legal link
between Dell'Isola's conviction and his position. A factual
link exists only "where there is a direct factual connection
between the public employee's crime and position." Finneran,
476 Mass. at 720. "The nexus required by G. L. c. 32, § 15(4),
is not that the crime was committed while the member was
working, or in a place of work, but only that the criminal
behavior be connected with the member's position." Durkin v.
Boston Retirement Bd., 83 Mass. App. Ct. 116, 119 (2013).
Dell'Isola asserts that the connection between his position
as a correction officer and his conviction for possession of
10
cocaine are not factually connected. He argues that the inmate
was no longer under his supervision and that no evidence
establishes that the inmate arranged for Dell'Isola to receive
cocaine. Instead, he frames the transaction as one between
Dell'Isola and the cousin alone, where the cousin contacted
Dell'Isola and initiated a conversation about cocaine, prompting
their meeting to conduct a separate transaction while Dell'Isola
was off duty and away from his place of employment. He contends
that this was a transaction that occurred without use of office
resources and without any connection to the inmate. See Scully,
80 Mass. App. Ct. at 543; Retirement Bd. of Maynard v. Tyler, 83
Mass. App. Ct. 109, 112-113 (2013). While he concedes that an
agreement for money existed, this was uncharged conduct.
We have previously held that no factual connection existed
when a firefighter sexually abused young boys, where the crimes
occurred outside of the firehouse while the member was off duty,
and "there was no evidence that [the member] used his position,
uniform, or equipment for the purposes of his indecent acts."
Ibid.
Likewise, we found no factual connection when a library
employee pleaded guilty to possession of child pornography,
where the member neither stored nor accessed the images on
library computers, nor did he use his position at the library to
facilitate that crime. See Scully, supra. The board could not
11
rely on conduct that did not result in a conviction to establish
a direct link. Id. at 544.
In contrast, a direct factual connection existed when the
superintendent of the municipal water and sewer department stole
money from the town, and when a city employee broke into city
hall and stole documents from his own personnel file to improve
his chances of being reappointed to his position. See Gaffney
v. Contributory Retirement Appeal Bd., 423 Mass. 1, 4-5 (1996);
Maher v. Justices of Quincy Div. of Dist. Ct. Dept., 67 Mass.
App. Ct. 612, 616-617 (2006), S.C., 452 Mass. 517 (2008), cert.
denied, 556 U.S. 1166 (2009).
Most recently, in Finneran, 476 Mass. at 721-722, the
Supreme Judicial Court held that a direct factual link existed,
requiring forfeiture, where the former Speaker of the House
pleaded guilty to obstruction of justice related to false
testimony he had given about a redistricting plan. The link
existed where the false testimony directly related to his
position as Speaker of the House and his work on the
redistricting act, and where his admitted motivation in
providing false testimony was meant to "vindicate his conduct"
as Speaker. As the Supreme Judicial Court concluded:
"While [his] offense itself does not directly implicate his
duties as Speaker of the House, it is nonetheless
inextricably intertwined with his position. Simply put, it
is only because he had been Speaker of the House at the
relevant time that he was in a position to testify as to
12
the genesis of the redistricting plan and to do so
falsely."
Id. at 722.
The decision in Finneran compels the outcome here, where
"[Dell'Isola's] crime directly concerns actions that he had
carried out when he served . . . in his role . . . ." Id. at
721-722. Here, Dell'Isola's actions were "inextricably
intertwined" with his position as a correction officer.
Although the transaction with the cousin occurred while
Dell'Isola was off duty and off location, it followed only as a
direct result of Dell'Isola's communications with, and on behalf
of, an inmate who continued to be in custody, albeit in a
different facility. Dell'Isola came to know and communicate
with the inmate as a result of his work as a correction officer,
and used those continued communications while the inmate
remained in custody, to obtain cocaine.
Furthermore, the board determined that Dell'Isola believed
that he would be meeting someone acting on the inmate's behalf,
based on the previous transaction where the inmate offered money
through his mother. By Dell'Isola's own admission during the
postarrest interview, he expected to receive both money and
cocaine during the transaction with the cousin. Unlike in
Scully, 80 Mass. App. Ct. at 543, where it was insufficient that
"some work-related conduct spark[ed] an investigation," the
13
factual link is not based on the uncharged receipt of money.
Rather, that conduct simply illuminates the manner in which
Dell'Isola and the inmate conducted transactions. The cousin
may have been the first to mention cocaine on the telephone, but
Dell'Isola's own retelling of that conversation indicated that
there were prior conversations about cocaine, based on the
cousin already having heard that Dell'Isola was "looking."
Dell'Isola's use of his position is not diminished because he
came into possession of the cocaine through a series of
communications facilitated by the inmate and not through a
direct transaction with him.
We therefore conclude that the board's decision was
supported by substantial evidence, and that G. L. c. 32,
§ 15(4), and the case law interpreting it mandate forfeiture
where Dell'Isola was convicted of possession of cocaine under
the facts of this case.7
Conclusion. As there was a direct factual link between
Dell'Isola's position as a public employee and his criminal
7
Because we conclude that a direct factual link exists, we
do not address the question whether there is a direct legal
link. A legal link exists "when a public employee commits a
crime directly implicating a statute that is specifically
applicable to the employee's position. . . . The requisite
direct legal link is shown where the crime committed is
'contrary to a central function of the position as articulated
in applicable laws.'" Finneran, supra at 721, quoting from
Garney v. Massachusetts Teachers' Retirement Sys., 469 Mass.
384, 391 (2014).
14
conviction for the possession of cocaine, the judgment of the
Superior Court is reversed. The matter is remanded for
consideration of Dell'Isola's Eighth Amendment claim that
pension forfeiture would be an excessive fine.
So ordered.