The Largest Pension Forfeiture to Date Does Not Constitute an Unconstitutionally Excessive Fine
The Eighth Amendment to the U.S. Constitution prohibits excessive fines but it is only recently that the U.S. Supreme Court considered when a punitive forfeiture constitutes an excessive fine. The Supreme Judicial Court subsequently agreed that a pension forfeiture can constitute a fine. Pursuant to M.G.L. c.32, §15(4), a member of a public retirement system who is convicted of a crime involving violation of the laws applicable to the member’s office or position is prohibited from receiving a retirement allowance; nor may his beneficiary receive any benefit. The convicted member is entitled to the return only of his contributions, without interest. The law is “all or nothing” – either all of the allowance is forfeited or none of it.
The Appeals Court recently considered the proportionality of the amount of the forfeiture with the gravity of the offense to conclude that the forfeiture of more than $1 million (net present value) did not constitute an excessive fine under the Eighth Amendment. In Bisignani v. Justices of the Lynn Division of the District Court Department of the Trial Court, the public official pled guilty to 12 counts, eight of which were related to his official position as a Town Manager in one town and Town Administrator in another. The charges were related to violation of the public bidding and procurement laws and interfering in the investigation of those charges. By application of M.G.L. c.32, §15(4), the public official forfeited $1,533,689 in pension benefits.
The official did not challenge the application of Section 15(4), conceding that the convictions were directly connected to his duties as a public employee. What is interesting, however, are the other factors the Court took into consideration. The record “suggested” without detail that the official engaged in other criminal behavior. There was no evidence that the official or his wife financially benefited from his crimes. The Court considered the maximum penalties, not the official’s actual sentence, in adjudging the seriousness of the violations. His actions were deemed to be a serious breach of the public trust, deprived the Towns of the benefits of the public bidding laws, risked harm to the public fisc, and had the potential to cause work to be performed by unqualified contractors. The Court did not consider the impact of the forfeiture on the public official and his family because the official did not present evidence of his personal finances. It did not consider the impact of the forfeiture on his (presumably innocent) wife because Section 15(4) prohibits her from benefiting. It also did not consider the blunt criticism of the law by one of the retirement board members because it is for the Court to consider the constitutionality of statutes, not administrative agencies.
The Appeals Court noted that the SJC had invited the Legislature to reconsider the all-or-nothing aspect of the forfeiture provision but, while a special commission recommended changes, no bill was passed to do so. Perhaps this decision, and the size of the forfeiture, will re-energize the legislative process.