Dell'Isola v. State Bd. of Ret. Another .
Dell'Isola v. State Bd. of Ret. Another .
Opinion
*786 *547 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 the cocaine *548 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.
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 *549 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. *787 George's mother later told Dell'Isola he needed to speak with George's "cousin," who later 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 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
*550
charges, and the facts at the forfeiture hearing are not disputed. See, e.g.,
State Bd. of Retirement
v.
Finneran
,
In determining the applicability of G. L. c. 32, § 15(4), the board is authorized to make factual findings and may admit 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
,
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
*788
they cannot be assumed to be facts that the jury considered in convicting him. See
Retirement Bd. of Somerville
v.
Buonomo
,
Although the exhibits were hearsay, that alone does not undercut their admissibility and reliability. See
Embers of Salisbury, Inc.
v.
Alcoholic Bev. Control Commn
.,
Dell'Isola further contends that, even if the documents were admissible, they do not establish the facts underlying his conviction. He asserts that the board can consider only evidence that the jury considered at his criminal trial, relying on
Scully
,
b.
Forfeiture pursuant to G. L. c. 32, § 15(4)
. Judicial review pursuant to G. L. c. 249, § 4, is in the nature of
*789
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
*552
general public.' "
State Bd. of Retirement
v.
Bulger
,
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
,
Dell'Isola asserts that the connection between his position as a correction officer and his conviction for possession of 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
,
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."
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 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
*553
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
.,
"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 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,
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
*554
during the transaction with the cousin. Unlike in
Scully
,
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
*791 Conclusion . As there was a direct factual link between Dell'Isola's position as a public employee and his criminal 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 .
This case was paired for argument with
State Bd. of Retirement v. O'Hare
,
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.
The identify of that officer was not confirmed.
The record is not clear if Dell'Isola was on or off duty when speaking with the inmate's mother and cousin.
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
,
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,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.