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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.
