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SJC-11971

 SALVATORE F. DiMASI    vs.   STATE BOARD OF RETIREMENT & others.1



         Suffolk.      February 9, 2016. - April 21, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Public Employment, Forfeiture of retirement benefits.
     Retirement. State Board of Retirement. Contribution.
     Words, "Final conviction."



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on June 16, 2014.

     The case was reported by Cordy, J.


     Thomas R. Kiley for the plaintiff.
     David R. Marks, Assistant Attorney General, for the
defendants.


     SPINA, J.   After the plaintiff, Salvatore F. DiMasi, was

convicted of several violations of Federal law, the State Board

of Retirement (board) unanimously approved the forfeiture of his

retirement allowance in accordance with G. L. c. 32, § 15 (4),

     1
       Justices of the Boston Municipal Court Department, as
nominal parties.
                                                                         2


and a judge in the Boston Municipal Court Department affirmed

the board's decision.     DiMasi filed a complaint for relief in

the nature of certiorari pursuant to G. L. c. 249, § 4, in the

Supreme Judicial Court for Suffolk County.      A single justice

reserved and reported the case for determination by the full

court.   DiMasi contends that a "final conviction" of a criminal

offense for purposes of § 15 (4) occurs at the conclusion of the

appellate process, not when a sentence is imposed.      He further

contends that the board improperly has withheld his accumulated

total deductions since September, 2011.      For the reasons that

follow, we conclude that, in the context of pension forfeiture,

a "final conviction" occurs when an individual is sentenced.        We

further conclude that DiMasi is entitled to the return of his

accumulated total deductions, together with interest on such

deductions from September, 2011, until such time as payment is

made.

    1.      Statutory framework.   The provisions of G. L. c. 32,

§ 15, "pertain to dereliction of duty by a member of the

contributory retirement system for public employees (member)."

See State Bd. of Retirement v. Bulger, 446 Mass. 169, 170 (2006)

(Bulger).    General Laws c. 32, § 15 (4), states as follows:

         "In no event shall any member 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 under the provisions of
    [§§ 1-28], inclusive, nor shall any beneficiary be entitled
                                                                     3


     to receive any benefits under such provisions on account of
     such member. The said member or his beneficiary shall
     receive, unless otherwise prohibited by law, a return of
     his accumulated total deductions; provided, however, that
     the rate of regular interest for the purpose of calculating
     accumulated total deductions shall be zero"2 (emphasis
     added).

This statutory provision applies to criminal offenses committed

on or after its effective date of January 12, 1988.   See St.

1987, c. 697, §§ 47, 135.   "Forfeiture of a retirement allowance

pursuant to G. L. c. 32, § 15 (4), is 'mandatory and occurs by

operation of law . . . .    [It] is an automatic legal consequence

of conviction of certain offenses.'"    Retirement Bd. of

Somerville v. Buonomo, 467 Mass. 662, 663-664 (2014) (Buonomo),

quoting State Bd. of Retirement v. Woodward, 446 Mass. 698, 705

(2006) (Woodward).   Such forfeiture is intended to deter

misconduct by public employees, protect the public fisc, and


     2
       "A public employee's pension is made up of two components.
The first component is 'regular deductions,' G. L. c. 32, § 1,
also known as 'employee contributions,' G. L. c. 32, § 22 (1)
(b), . . . which are deducted from employee pay. The 'regular
interest' on those deductions, G. L. c. 32, § 1, see G. L.
c. 32, § 22 (6) (a), (b), and the regular deductions comprise
the employee's 'accumulated total deductions.' G. L. c. 32,
§ 1. The accumulated total deductions are then invested in an
investment account. The second component is made up of the
'employer contributions,' see G. L. c. 32, § 22 (3), which are
also invested. At retirement, the employee receives a
'retirement allowance' consisting of an 'annuity,' funded by the
accumulated total deductions, and a 'pension,' funded by
employer contributions and earnings. G. L. c. 32, § 1."
Haverhill Retirement Sys. v. Contributory Retirement Appeal Bd.,
82 Mass. App. Ct. 129, 130 n.2 (2012). Payment of a retirement
allowance is made monthly, on the last business day of each
month.
                                                                      4


preserve respect for government service.    See MacLean v. State

Bd. of Retirement, 432 Mass. 339, 351 (2000).

     2.    Factual and procedural background.   The facts are taken

from the parties' joint statement of agreed material facts,

which we have supplemented with undisputed facts from the

record.    DiMasi, a former Speaker of the Massachusetts House of

Representatives, resigned from that position on January 27,

2009.    He filed an application with the board on February 11,

2009, seeking a superannuation retirement allowance pursuant to

G. L. c. 32, § 5.    The board approved DiMasi's application and

began to pay him monthly retirement benefits as of February 27,

2009.3

     On June 2, 2009, a Federal grand jury indicted DiMasi in

the United States District Court for the District of

Massachusetts, alleging various violations of Federal laws.4      The


     3
       When Salvatore F. DiMasi retired, his annuity savings
account contained $155,155.20, consisting of $127,010.05 in
employee contributions and $28,145.15 in interest through the
year 2008.
     4
       DiMasi was indicted on three counts of devising a scheme
to deprive the public of its right to honest services through
the use of the mail (honest services mail fraud), 18 U.S.C.
§§ 1341, 1346 (2006); four counts of devising a scheme to
deprive the public of its right to honest services through the
use of wire transmissions (honest services wire fraud), 18
U.S.C. §§ 1343, 1346 (2006); and one count of conspiracy to
commit mail and wire fraud, 18 U.S.C. § 371 (2006). A
superseding indictment filed on October 13, 2009, added one
count of extortion under color of official right, 18 U.S.C.
§ 1951 (2006).
                                                                     5


indictment pertained to criminal acts purportedly committed by

DiMasi while in the performance of his official duties.5    On

June 9, 2009, the board notified DiMasi that it had received

information pertaining to the indictment, that it was initiating

a proceeding to review the Federal charges in conjunction with

G. L. c. 32, § 15, and that it would be withholding further

payments of his retirement allowance.   The board subsequently

voted to suspend DiMasi's retirement allowance, effective

November 1, 2009.

     DiMasi filed a petition in the Boston Municipal Court

seeking judicial review of the board's decision.    On July 13,

2010, summary judgment entered in favor of DiMasi.    A judge

determined, in part, that the existence of the indictment,

standing alone, did not provide a sufficient basis for

concluding that the charges against DiMasi were true, and that

the board did not have the authority under G. L. c. 32, § 15, to

temporarily withhold DiMasi's retirement benefits in the

circumstances of this case.   Accordingly, the judge ordered the

board to resume the payment of DiMasi's retirement allowance and

to pay him the amounts that had been withheld.     On September 7,

     5
       More specifically, the indictment alleged that DiMasi
orchestrated and participated in a scheme to use his authority
and influence as Speaker of the Massachusetts House of
Representatives improperly to enable a computer software company
to secure multimillion dollar procurement contracts from
agencies of the Commonwealth, with the purpose of obtaining
bribes and kickbacks for himself and several coconspirators.
                                                                   6


2010, the board appealed that decision by filing a complaint for

relief in the nature of certiorari pursuant to G. L. c. 249,

§ 4, in the Supreme Judicial Court for Suffolk County.     A single

justice ordered the matter transferred to the Superior Court in

accordance with G. L. c. 211, § 4A, for disposition.

     In the spring of 2011, a Federal trial was held on the

criminal charges against DiMasi and several alleged

coconspirators.   See notes 4 and 5, supra.   On June 15, 2011,

the jury found DiMasi guilty of seven counts of the superseding

indictment, and not guilty of two other counts.6   The board filed

an "emergency" motion in the pending action that had been

transferred by the single justice to the Superior Court,

seeking, among other things, to suspend DiMasi's retirement

allowance and to place the benefits that he was owed into an

escrow account.   Following a hearing, a Superior Court judge

denied the board's motion.   The judge concluded that because

DiMasi had not yet been sentenced, there was no final conviction

that mandated the forfeiture of his retirement allowance under

G. L. c. 32, § 15.




     6
       DiMasi was found guilty of two counts of honest services
mail fraud, three counts of honest services wire fraud, one
count of conspiracy to commit mail and wire fraud, and one count
of extortion under color of official right. See note 4, supra.
He was found not guilty of one count of honest services mail
fraud and one count of honest services wire fraud. See id.
                                                                     7


     On September 9, 2011, DiMasi was sentenced in the United

States District Court for the District of Massachusetts to

ninety-six months in a Federal prison.7    As a consequence, the

board voted at a special meeting held on September 15, 2011, to

suspend payment of DiMasi's retirement allowance, commencing

with the September 30, 2011, payment.     A judgment of conviction

against DiMasi was entered in the Federal court on September 27,

2011.    The following day, DiMasi filed a notice of appeal in the

United States Court of Appeals for the First Circuit.

     On October 18, 2011, DiMasi filed in the Boston Municipal

Court a petition for review of the board's September 15 decision

to suspend his retirement benefits without first conducting a

hearing.   A hearing officer for the board subsequently held an

evidentiary hearing on November 2, 2011, concerning the

applicability of G. L. c. 32, § 15, to DiMasi's retirement

allowance.   By decision dated August 8, 2012, the hearing

officer found that because DiMasi's criminal convictions

involved violations of the laws applicable to his office or

position, the pension forfeiture provisions of G. L. c. 32, § 15

(4), were applicable to his case.    The hearing officer stated

that DiMasi's convictions became "final" for purposes of § 15

(4) when he was sentenced on September 9, 2011.     Consequently,

     7
       DiMasi's sentences also included twenty-four months of
supervised release, the forfeiture of $65,000, and a special
assessment of $700.
                                                                   8


the hearing officer continued, DiMasi forfeited his retirement

allowance as of that date.   The hearing officer further found

that pursuant to § 15 (4), DiMasi was entitled to the return of

his accumulated total deductions, but the interest rate

applicable to such deductions was zero per cent.   Finally, the

hearing officer stated that the board was not entitled to recoup

retirement payments made to DiMasi before September 9, 2011,

because G. L. c. 32, § 15 (6),8 is only applicable to members who

retire on or after April 2, 2012, and DiMasi retired on

January 27, 2009.   The board unanimously voted to accept the

hearing officer's decision at its meeting on August 30, 2012.

     On October 18, 2012, DiMasi filed another petition for

review in the Boston Municipal Court.9   He asserted that the

board improperly terminated his retirement allowance because

there was no "final conviction" within the meaning of G. L.

c. 32, § 15 (4), given that he had not yet exhausted his direct

appeals.   DiMasi also asserted that the board had failed to

     8
       General Laws c. 32, § 15 (6), inserted by St. 2011,
c. 176, § 31, provides: "If a member's final conviction of an
offense results in a forfeiture of rights under this chapter,
the member shall forfeit, and the board shall require the member
to repay, all benefits received after the date of the offense of
which the member was convicted" (emphasis added). This section
"shall apply only to members retiring on or after April 2,
2012." St. 2011, c. 176, § 65.
     9
       The petition for review filed in the Boston Municipal
Court Department on October 18, 2012, incorporated by reference
the pertinent allegations set forth in the petition for review
filed on October 18, 2011.
                                                                         9


return his accumulated total deductions as required by § 15 (4).

The board filed the administrative record as its answer.           On

November 22, 2013, DiMasi filed a motion for summary judgment.

       Meanwhile, on August 21, 2013, the United States Court of

Appeals for the First Circuit affirmed DiMasi's criminal

convictions and sentences.        His subsequent petitions for

rehearing were denied.     On January 27, 2014, the United States

Supreme Court denied DiMasi's petition for a writ of certiorari.

       By decision dated April 17, 2014, a judge in the Boston

Municipal Court denied DiMasi's motion for summary judgment and

affirmed the board's August 30, 2012, decision.        The judge

pointed out that the only matter of dispute between the parties

was when DiMasi's convictions became "final" for purposes of

G. L. c. 32, § 15 (4).     After considering the language and

intent of the statute, the judge agreed with the board that the

term "final" meant the date when DiMasi was sentenced --

September 9, 2011 -- and not the date when all of his direct

appeals were exhausted -- January 27, 2014.

       3.   Standard of review.    "General Laws c. 249, § 4,

provides for limited judicial review in the nature of certiorari

to correct errors of law in administrative proceedings where

judicial review is otherwise unavailable."        Bulger, 446 Mass. at

173.    See Sheriff of Plymouth County v. Plymouth County

Personnel Bd., 440 Mass. 708, 710 (2004).       Certiorari allows a
                                                                  10


court to "correct only a substantial error of law, evidenced by

the record, which adversely affects a material right of the

plaintiff. . . .    In its review, the court may rectify only

those errors of law which have resulted in manifest injustice to

the plaintiff or which have adversely affected the real

interests of the general public."     Massachusetts Bay Transp.

Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 790 (2000),

quoting Carney v. Springfield, 403 Mass. 604, 605 (1988).

    4.   "Final conviction" of a criminal offense.     "Our

analysis of G. L. c. 32, § 15 (4), is guided by the familiar

principle that 'a statute must be interpreted according to the

intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated.'"    Buonomo, 467 Mass. at 668, quoting Hanlon v.

Rollins, 286 Mass. 444, 447 (1934).    See Sullivan v. Brookline,

435 Mass. 353, 360 (2001), and cases cited.    "Courts must

ascertain the intent of a statute from all its parts and from

the subject matter to which it relates, and must interpret the

statute so as to render the legislation effective, consonant

with sound reason and common sense."     Buonomo, supra.   "For

purposes of statutory construction, G. L. c. 32, § 15 (4), is
                                                                   11


considered to be penal and, therefore, its language must be

construed narrowly, not stretched to accomplish an unexpressed

result."   Bulger, 446 Mass. at 174-175.   See Gaffney v.

Contributory Retirement Appeal Bd., 423 Mass. 1, 3 n.3 (1996),

citing Collatos v. Boston Retirement Bd., 396 Mass. 684, 686-687

(1986).

    The statutory provisions governing retirement benefits for

public employees do not include a definition of the term "final

conviction" of a criminal offense.    See G. L. c. 32, §§ 1, 15.

However, it is well established that, "[i]n criminal cases, the

final judgment is the sentence."     Doe, Sex Offender Registry Bd.

No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 621

(2011).    See Commonwealth v. Brown, 466 Mass. 676, 679 (2013)

(criminal conviction not final under Massachusetts law until

sentence is imposed on defendant); Commonwealth v. Dascalakis,

246 Mass. 12, 19 (1923).   See also Fort Wayne Books, Inc. v.

Indiana, 489 U.S. 46, 54 (1989) (finality in criminal

prosecution generally "is defined by a judgment of conviction

and the imposition of a sentence"); Berman v. United States, 302

U.S. 211, 212 (1937).

    The applicability of this common meaning of finality to a

pension forfeiture case initially was described in Woodward, 446

Mass. at 707 n.8.   There, this court held, in relevant part,

that a pension forfeiture under G. L. c. 32, § 15 (4), is not an
                                                                    12


action in contract and, therefore, is not subject to any period

of limitations.    Id. at 705-706, 708.   In connection with our

holding, we stated that a judge in the Wrentham Division of the

District Court Department incorrectly concluded that the board's

implementation of the forfeiture under § 15 (4) was untimely.

Id. at 707 n.8.    We explained that the term "final conviction,"

as used in § 15 (4), "should be given its specialized technical

meaning, . . . [namely,] the sentence that is imposed in a

criminal proceeding" (citation omitted).     Id.   Cf. MacLean, 432

Mass. at 343-344 (pension forfeiture pursuant to G. L. c. 32,

§ 15 [4], triggered when defendant was "sentenced" to probation

after pleading guilty to violations of conflict of interest law,

G. L. c. 268A, § 7).    Although our articulation of the proper

meaning of "final conviction" appears in a footnote in Woodward,

it is not dicta.    Rather, the explanation in that footnote

addressed an additional aspect of the District Court judge's

ruling and supplemented this court's central holding.

       In essence, the imposition of a defendant's sentence in a

criminal case constitutes both the final judgment in that case

and the "final conviction" for purposes of G. L. c. 32, § 15

(4).    The defendant no longer is shielded by the presumption of

innocence, the consequences of the conviction may be imposed,

and the criminal case is ripe for appeal.    See 18 U.S.C.

§ 3143(b) (2006) (absent specified findings, judicial officer
                                                                     13


"shall order that a person who has been found guilty of an

offense and sentenced to a term of imprisonment, and who has

filed an appeal or a petition for a writ of certiorari, be

detained" to commence serving time under criminal sentence);

G. L. c. 279, § 4 ("Sentence shall be imposed upon conviction of

a crime, regardless of whether an appeal has been taken," except

in limited circumstances upon conviction of capital crime).      See

also Flanagan v. United States, 465 U.S. 259, 263 (1984) ("In a

criminal case the [final judgment] rule prohibits appellate

review until conviction and imposition of sentence");

Commonwealth v. Bruneau, 472 Mass. 510, 515-516 (2015), and

cases cited.   Here, DiMasi was sentenced on his Federal

convictions on September 9, 2011.   With respect to pension

forfeiture under G. L. c. 32, § 15 (4), this date constituted

his "final conviction."

    We distinguish a "final conviction" for purposes of § 15

(4) from a final judgment occurring at the conclusion of the

appellate process.   "Finality is variously defined; like many

legal terms, its precise meaning depends on context."      Clay v.

United States, 537 U.S. 522, 527 (2003).   In other contexts, we

have recognized that a judgment becomes final and a case is

closed when all avenues of appeal have been exhausted or the

time for appeal has expired.   See, e.g., Sliney v. Previte, 473

Mass. 283, 284, 289-290 (2015) (enlargement of statute of
                                                                     14


limitations period for civil actions alleging sexual abuse of

minor had retroactive application in case where judgment not

"final" due to pendency of petition for rehearing and

application for further appellate review on amended law's

effective date); Commonwealth v. Augustine, 467 Mass. 230, 257

(2014), S.C., 470 Mass. 837 (2015) (judicial opinion announcing

new rule of law has retroactive application "only to cases in

which a defendant's conviction is not final, that is, to cases

pending on direct review" in which relevant issue was raised);

Foxworth v. St. Amand, 457 Mass. 200, 205-206 & n.7 (2010) (for

purposes of Federal habeas corpus review, once direct appeal to

State court has been decided, conviction becomes final on date

when rescript issues to lower court); State Tax Comm'n v.

Assessors of Haverhill, 331 Mass. 306, 309 (1954) (until pending

appeal has been decided or time for appeal has expired, there is

no "final determination" by Appellate Tax Board because its

decision may have to be modified as consequence of appeal).     In

the context of a pension forfeiture case, however, this is not

the meaning of finality that we ascribe to the term "final

conviction" in § 15 (4).

    Interpreting the language of § 15 (4) as requiring pension

forfeiture only after the conclusion of the appellate process,

as DiMasi suggests, would contravene the Legislature's intent

and lead to absurd results.   Such a reading would encourage
                                                                   15


frivolous appeals and delaying tactics so that a member who has

been convicted of a criminal offense involving a violation of

the laws applicable to his or her office or position could

continue to receive a retirement allowance for as long as

possible.   As we have pointed out, § 15 (4) is designed to deter

misconduct by public employees, to protect the public fisc, and

to preserve respect for government service.   MacLean, 432 Mass.

at 351.   It is reasonable to infer that, once a member has been

convicted of a criminal offense relating to the member's office

or position, the Legislature would want to preclude such member

from continuing to receive public monies, in the form of a

retirement allowance, during the pendency of the member's

appeal.   Should the member ultimately prevail at the end of the

appellate process, the member could recoup the portion of the

retirement allowance that had been withheld subsequent to the

member's sentencing on the criminal conviction.   In this manner,

the interests of both the member and the board are protected.

    Furthermore, G. L. c. 32, § 15 (4), uses the phrase "after

final conviction of a criminal offense."   It does not refer to a

"final conviction after all appeals have been exhausted," or

words to that effect.   Contrast, e.g., G. L. c. 21J, § 9 (d)

(eligibility for reimbursement from underground storage tank

petroleum product cleanup fund requires "a final judgment from a

court of competent jurisdiction, all rights of appeal being
                                                                   16


exhausted, waived, or expired"); G. L. c. 79, § 36A (payment of

damages award for taking by right of eminent domain shall be

made "within thirty days after all rights of appeal [from the

judgment] have been exhausted or waived").   Had the Legislature

intended that pension forfeiture not occur until the conclusion

of the appellate process in the criminal case, it easily could

have included language to that effect in the relevant statutory

provisions.   We conclude that the board's interpretation of

"final conviction" as referring to the imposition of sentence is

consistent with the language and purposes of the statute.10

DiMasi forfeited his entitlement to a retirement allowance on

September 9, 2011.

     5.   Return of accumulated total deductions.    DiMasi

contends that since September, 2011, the board wrongfully has

withheld his accumulated total deductions of $127,010.05 in

violation of G. L. c. 32, § 15 (4).   See notes 2 and 3, supra.

As a consequence, he continues, the board has deprived him of

funds that could have financed his appeal and provided his

family with much needed health insurance coverage.     DiMasi

     10
       Pursuant to its authority under G. L. c. 32, § 20 (5)
(b), to make rules and regulations consistent with law, the
board promulgated 941 Code Mass. Regs. § 2.10(2) (2013), which
defines the term "final conviction" as "the entry of a judgment
of a judge or jury that a person is guilty of a crime as charged
and the imposition of sentence for that crime." Although this
regulation was not in effect at the time DiMasi was sentenced,
it is consistent with our interpretation of the term "final
conviction."
                                                                     17


argues that the board must return his accumulated total

deductions without further delay.   We agree.11

     The plain language of G. L. c. 32, § 15 (4), permits a

member "after final conviction of a criminal offense involving

violation of the laws applicable to his office or position" to

receive "a return of his accumulated total deductions," but "the

rate of regular interest for the purpose of calculating

accumulated total deductions shall be zero."      In essence, this

means that the member is entitled to the return of his employee

contributions (here, $127,010.05), but is not entitled to the

interest that has accrued on those contributions.12     Nothing in

§ 15 (4) requires that a member repay the retirement benefits

that the member received prior to a final conviction of a

specified criminal offense, or that the board subtract such

retirement benefits from the accumulated total deductions that


     11
       In her decision dated April 17, 2014, denying DiMasi's
motion for summary judgment and affirming the board's decision,
the judge in the Boston Municipal Court stated that the parties
were in agreement that DiMasi was entitled to receive a return
of his accumulated total deductions as set forth in G. L. c. 32,
§ 15 (4). The judge further stated that the parties also were
in agreement that because G. L. c. 32, § 15 (6), was not
applicable to DiMasi, see note 8, supra, the board was not
entitled to recoup payments already made to him as of the date
of his final conviction.
     12
       Even though the member is not entitled to the interest
that has accrued on his own contributions during the tenure of
his employment, the funds that are returned to the member still
are referred to as "accumulated total deductions." See note 2,
supra.
                                                                     18


must be returned to the member.13    In contrast, see G. L. c. 32,

§ 15 (6), and note 8, supra.     Offenses that are covered by § 15

(4) "cause [the] loss of only future pension benefit payments

and accumulated interest" (emphasis added).     Gaffney, 423 Mass.

at 3 n.3.   "[T]he member still recovers actual deductible

contributions."    Id. at 5.   Accordingly, we conclude that DiMasi

is entitled to receive his accumulated total deductions in the

amount of $127,010.05, which the board has withheld since

September, 2011.

     DiMasi further contends that because the board has failed

to return his accumulated total deductions, he is entitled to

interest on those deductions from September, 2011, until such

time as payment is made in accordance with G. L. c. 32, § 20 (5)

(c) (2),14 and Herrick v. Essex Regional Retirement Bd., 465

Mass. 801, 802 (2013).    We agree.15


     13
       To the extent that our decision today is inconsistent
with the portion of Flaherty v. Justices of the Haverhill Div.
of the Dist. Court Dep't of the Trial Court, 83 Mass. App. Ct.
120, 125, cert. denied, 134 S. Ct. 325 (2013), that pertains to
the reimbursement of retirement benefits previously received by
a member, that portion is overruled. The remainder of the
Flaherty decision is unaffected and continues to be good law.
     14
       General Laws c. 32, § 20 (5) (c) (2), provides, in
pertinent part:

          "When an error exists in the records maintained by the
     system or an error is made in computing a benefit and, as a
     result, a member or beneficiary receives from the system
     more or less than the member or beneficiary would have been
     entitled to receive had the records been correct or had the
                                                                   19


    Recognizing that "errors are bound to occur" in a

complicated system like the one governed by G. L. c. 32, Boston

Retirement Bd. v. McCormick, 345 Mass. 692, 698 n.5 (1963), the

Legislature enacted § 20 (5) (c) (2), to provide relief from

such errors.   In Herrick, supra at 809, this court interpreted

§ 20 (5) (c) (2) as providing "a remedy for all errors made by

the board that affect the amount of benefits a member or

beneficiary receives, allowing the error to be corrected so that

members and beneficiaries receive the actuarial equivalent of

the benefits they would have received had the board not erred"

(emphasis in original).   At issue in that case was whether a

member of a public employee contributory retirement system

governed by G. L. c. 32, §§ 1-28, who pleaded guilty to sexually

assaulting his daughter, was entitled to prejudgment interest on

a retroactive award of superannuation retirement benefits and,

if so, at what rate.   See Herrick, supra at 802.   We concluded

that where "a retirement board makes a legal error in denying



    error not been made, the records or error shall be
    corrected . . . as far as practicable, and future payments
    shall be adjusted so that the actuarial equivalent of the
    pension or benefit to which the member or beneficiary was
    correctly entitled shall be paid."
    15
       To be clear, the interest claimed by DiMasi is not that
which is part of "accumulated total deductions," because he is
not entitled to such interest under G. L. c. 32, § 15 (4).
Rather, DiMasi seeks interest for the unlawful withholding of
his own employee contributions (to which he is entitled) by the
board beginning in September, 2011.
                                                                  20


retirement benefits that is corrected by a court, [a member] is

entitled to a rate of interest determined by the board's actuary

'so that the actuarial equivalent of the pension or benefit to

which the member . . . was correctly entitled shall be paid.'"16

Id., quoting G. L. c. 32, § 20 (5) (c) (2).

     Here, after DiMasi's final conviction, the board

erroneously continued to withhold his accumulated total

deductions instead of returning them to DiMasi in conformity

with the clear language of § 15 (4).    This happened

notwithstanding the board's unanimous vote on August 30, 2012,

to accept the hearing officer's decision in which he concluded

that DiMasi was entitled to the return of his accumulated total

deductions.   See note 11, supra.   By failing to return such

deductions, the board denied DiMasi the use and benefit of his

own contributions that he had made to the State employees'

retirement system during the tenure of his employment.    Given

the board's error, we conclude that DiMasi is entitled to

interest on his accumulated total deductions from September,

2011, until such time as payment is made.     Cf. Conway v. Electro

Switch Corp., 402 Mass. 385, 390 (1988) (according to

fundamental principle of common law, "interest is awarded to


     16
       The "actuarial equivalent" is defined in G. L. c. 32,
§ 1, as "any benefit of equal value when computed upon the basis
of a mortality table to be selected by the actuary and an
interest rate determined by the actuary."
                                                                    21


compensate a damaged party for the loss of use or the unlawful

detention of money").   Absent this remedy, the board has no

incentive to ensure the prompt repayment of a member's

accumulated total deductions.   The board's actuary shall

determine the appropriate interest rate "so that the actuarial

equivalent of the pension or benefit to which [DiMasi] was

correctly entitled shall be paid."   Herrick, 465 Mass. at 802,

quoting G. L. c. 32, § 20 (5) (c) (2).

    6.   Conclusion.    This case is remanded to the county court

where the single justice shall enter a judgment affirming the

decision of the Boston Municipal Court.   The single justice also

shall remand the case to the Boston Municipal Court for entry of

an order directing the board to return DiMasi's accumulated

total deductions forthwith, together with appropriate interest

as calculated by the board's actuary.

                                     So ordered.
