Civil action commenced in the Superior
Court Department on November 29, 2018.
The case was heard by Kathleen M.
McCarthy, J., on motions for judgment on the pleadings.
Robert J. Cordy (Annabel Rodriguez also
present) for the plaintiff.
David R. Marks, Assistant Attorney
General, for Justices of the Lynn Division of the District Court Department of
the Trial Court.
After more than thirty-four years of employment as either a State or a
municipal employee, the plaintiff, Andrew Bisignani, pleaded guilty to numerous
crimes relating to his role as the town manager for the town of Saugus (Saugus)
and the town administrator for the town of Nahant (Nahant). Thereafter, the retirement board of Saugus
(board) voted to forfeit his entire retirement allowance pursuant to G. L.
c. 32, § 15 (4) (§ 15 ). The question presented in this appeal is
whether the forfeiture of Bisignani's substantial retirement allowance ‑‑ the
largest amount to our knowledge forfeited by a public employee to date --
constitutes an excessive fine in violation of the Eighth Amendment to the
Unites States Constitution. In the
circumstances of this case, we conclude that the forfeiture of the entire amount
of his retirement allowance required by the statute, as applied to Bisignani,
was within constitutional limits.
Accordingly, we affirm the judgment of the Superior Court.
Background. Beginning in 1965, Bisignani was employed as
either a State or municipal employee.
Bisignani worked for the Commonwealth from 1965 to 1967. He was the purchasing agent and city auditor
for the city of Revere from 1978 to 2003, and then served as the Saugus town
manager from January 2003 to February 1, 2012.
Thereafter, Bisignani retired. In
total, he had thirty-four years and seven months of creditable service at the
time of his retirement. See G. L.
c. 32, § 4. Bisignani's
application for superannuation retirement was allowed; on January 29, 2012, he
began receiving $6,425 per month, his "option C" retirement
allowance. Almost immediately,
Bisignani commenced part-time employment as the temporary town administrator of
Nahant, a position from which he resigned in June 2014. See G. L. c. 32, § 91.
Following the return of a twelve-count
indictment in December 2014 related to his service in the towns of Saugus and
Nahant, Bisignani pleaded guilty to all charges, including procurement fraud,
evading public bidding laws, incurring liability and expenditure of public funds
violations, and interfering with the criminal and grand jury investigations
underlying the charges related to his official duties. He was sentenced to two years of probation,
with certain conditions, and a $60,000 fine.
No restitution order was imposed.
The board then held an administrative hearing; although Bisignani had
the burden of proving the excessiveness of any forfeiture order, he and his
wife elected not to appear at the hearing.
Instead, his attorney appeared and argued on his behalf. The board made a finding that of the twelve
convictions, eight were for crimes "directly implicat[ing] a public
employee's official duties" pursuant to § 15 (4). A majority of the board voted to forfeit
Bisignani's entire retirement allowance, excepting the return of his total
accumulated deductions pursuant to § 15 (4).
Bisignani sought review of the board's
decision in the District Court pursuant to G. L. c. 32,
§ 16 (3) (a). He admitted
that his crimes were "applicable" to the positions he held in Saugus
and Nahant, but claimed that the forfeiture, as applied to him, violated the
excessive fines clause of the Eighth Amendment.
Neither Bisignani nor his wife testified; nor did Bisignani present
evidence of his personal finances to the District Court judge as permitted by
G. L. c. 32, § 16 (3) (a). See Public Employee Retirement Admin. Comm'n
v. Bettencourt, 474 Mass. 60, 72 (2016) (Bettencourt). The judge found that Bisignani failed to meet
his burden to demonstrate that the forfeiture was grossly disproportionate to
the gravity of his crimes. Accordingly,
the judge entered a judgment upholding the board's decision.
Bisignani then filed a petition for
certiorari in the Superior Court pursuant to G. L. c. 249,
§ 4. On cross motions for judgment
on the pleadings, a Superior Court judge found that the District Court judge's
decision was supported by substantial evidence, and reflected a correct
application of the law. She allowed the
defendant's motion for judgment on the pleadings. This appeal followed.
Discussion. Bisignani does not contest that his
convictions involved violations of laws "applicable to his office or
position" within the meaning of § 15 (4), and therefore
triggered imposition of the statutory forfeiture provisions. Rather, he claims that the application of
§ 15 (4) to him, by forfeiture of his pension, was constitutionally
infirm. We review the District Court
judge's determination of the proportionality of the forfeiture de novo. See Bettencourt, 474 Mass. at 71-72. Where, as here, the District Court judge made
findings of fact, they must "be accepted unless clearly
erroneous." Id. at 72 n.19. However, we accord no special weight to the
Superior Court judge's decision. See Doe
v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 & n.6 (2002). "As the party challenging the
constitutionality of the forfeiture, [Bisignani] bears the burden of
demonstrating that the forfeiture is excessive." Bettencourt, supra at 72.
Proportionality of forfeiture. In
United States v. Bajakajian, 524 U.S. 321, 327 (1998), the United States
Supreme Court first applied the excessive fines clause of the Eighth Amendment
approximately two hundred years after its ratification. The Court articulated a standard for
determining whether a fine is excessive, holding that "a punitive
forfeiture violates the Excessive Fines Clause if it is grossly disproportional
to the gravity of a defendant's offense."
Id. at 334. The Supreme Judicial
Court subsequently concluded that a pension forfeiture under § 15 (4)
is a fine for Eighth Amendment purposes subject to the rule of
proportionality. See Bettencourt, 474
Mass. at 61, 71-72.
Amount of pension forfeiture. The
first step in the proportionality analysis is to establish the amount of the
pension forfeiture. See Bettencourt, 474
Mass. at 72. Here, Bisignani presented
evidence from an actuary that the net present value of his retirement allowance
was $1,533,698, exclusive of health care benefits and life insurance. The board did not retain an actuary, but
asserted that the value of the pension was in the range of $1 million to $1.5
million. The District Court judge found
that the present value of the future pension benefits as of the date of
forfeiture, exclusive of the loss of health and life insurance benefits, was
$1,533,698. Bisignani received all of
the money that he paid in to the retirement system, but forfeited his
expectation of the public funds he would receive upon retirement ($1,533,689;
see note 9, supra). As Bisignani points
out, this amount far exceeds the value of other retirement allowance
forfeitures upheld by our courts. See,
e.g., State Bd. of Retirement v. Finneran, 476 Mass. 714, 723-724 (2017)
($433,400); Maher v. Retirement Bd. of Quincy, 452 Mass. 517, 523-525 (2008),
cert. denied, 556 U.S. 1166 (2009) ($576,000); MacLean v. State Bd. of
Retirement, 432 Mass. 339, 347-350 (2000) ($625,000); Flaherty v. Justices of
the Haverhill Div. of the Dist. Court Dep't of the Trial Court, 83 Mass. App.
Ct. 120, 123-125, cert. denied, 571 U.S. 889 (2013) ($940,000), overruled in
part on other grounds by DiMasi v. State Bd. of Retirement, 474 Mass. 194, 204
n.13 (2016). Cf. Bettencourt, 474 Mass.
at 72-75 ($659,000 excessive).
Gravity of underlying offenses.
The second step in the proportionality analysis is to assess "the
gravity of the underlying offenses . . . [and] to gauge the degree of
Bettencourt, 474 Mass. at 72.
Four factors are relevant to this inquiry: "the nature and circumstances of [the]
offenses, whether they were related to any other illegal activities, the
aggregate maximum sentence that could have been imposed, and the harm resulting
from them." Id. Each case turns on its unique facts. See id. at 75 n.25. Although we agree that the amount of the
forfeiture is substantial, so too is the gravity of Bisignani's offenses and
the degree of his culpability.
Nature and circumstance of offenses.
Bisignani does not challenge the application of § 15 (4), as
he concedes that there was a direct connection between his crimes and his
public employee duties. Indeed,
forfeiture under the statute would have been required by one conviction; here,
Bisignani pleaded guilty to twelve crimes, eight of which carried the penalty
of forfeiture. This was "no
solitary lapse in judgment" by Bisignani.
Flaherty, 83 Mass. App. Ct. at 124.
The criminal acts that led to his convictions spanned five and one-half
years and occurred in two separate municipalities. Compare MacLean, 432 Mass. at 341 & n.4,
349-350 (public employee engaged in multiple illegal activities over
approximately seven- to nine-year period); Flaherty, supra (superintendent of
city highway department committed separate acts of theft over three-year period). Bisignani's breaches of his ethical and legal
obligations are far more serious than the unauthorized review of promotional
examination scores that the court described as "snooping" in
Bettencourt. See Bettencourt, 474 Mass.
at 73. See generally G. L.
c. 268A (governing conduct of public officials and employees). Indeed, Bisignani's crimes are more
comparable to those of Finneran and DiMasi, high level public employees who
were convicted of obstruction of justice, and multiple counts of devising a scheme
to deprive the public of its right to honest services, respectively. See Finneran, 476 Mass. at 717-718; DiMasi,
474 Mass. at 196-197 nn.4 & 6.
Other illegal activities. While
on this record there is no evidence that the eight convictions linked to
Bisignani's office were "related to" any other contemporaneous
illegal activities, Bettencourt, 474 Mass. at 72, they led to the commission of
additional crimes. Facing a criminal
investigation and grand jury proceedings, Bisignani committed four more crimes
in an effort to cover up his felonious behavior, and to obstruct the interests
of justice. These crimes included
altering municipal documents and illegally recording a conversation with a
Nahant selectperson. In addition, as
reflected on the docket of his criminal case, Bisignani's home confinement was
to begin when his Federal probation was scheduled to end. Although the record is silent as to the
details, this is evidence that Bisignani was involved in other illegal
activities. Contrast Bettencourt, supra
at 73 (no prior criminal record and nothing to suggest engagement in other
criminal or illegal misconduct).
Aggregate maximum sentence.
Bisignani faced an aggregate maximum sentence of fifty-four years in
State prison and $102,500 in fines on the twelve counts of which he was
convicted. These penalties reflect
the significant gravity and seriousness with which the Legislature viewed these
crimes. Indeed, convictions for crimes
with much lower aggregate maximum penalties have been deemed serious and grave
in the pension forfeiture context. See,
e.g., Finneran, 476 Mass. at 724 (ten years' imprisonment, $250,000 fine, three
years' supervised release, five years of probation, and $100 special
assessment); Maher, 452 Mass. at 524 (seventeen and one-half years of
imprisonment); MacLean, 432 Mass. at 341, 348 (four years and $6,000
fine). Here, the maximum aggregate
penalties indicate a substantial level of culpability. Cf. Bettencourt, 474 Mass. at 73-74 (where
maximum punishment for violation of G. L. c. 266, § 120F, a
misdemeanor, was imprisonment for thirty days and fine of not more than $1,000,
court concluded Bettencourt's aggregated maximum penalty for convictions of
twenty-one counts -- 630 days in a house of correction and a $21,000 fine --
did not "indicate a substantial level of culpability").
Resultant harm. On this record,
there was no showing whether there was any pecuniary gain or benefit to
Bisignani and his wife. However, harm is
not limited to the pecuniary gain that Bisignani may have received, and thus we
reject his contention that his offenses "inflicted minimal
harm." Contrast Bajakajian, 524
U.S. at 339 (respondent convicted of failing to report transportation of
currency outside United States caused minimal harm and no loss to public fisc);
Bettencourt, 474 Mass. at 74-75 (no improper or illegal gain).
Here, Bisignani's crimes involved a
significant breach of the public trust, striking at the core of the ethical
responsibilities of his positions.
Bisignani's decision to interfere with the criminal investigation and
the grand jury proceedings caused harm to the towns by creating additional
investigative costs. See United States
v. Sperrazza, 804 F.3d 1113, 1128 (11th Cir. 2015), cert. denied, 579 U.S. 902
(2016) (cost of investigation and increased difficulty in investigating and
prosecuting crimes properly considered in proportionality analysis). Bisignani's crimes also created a substantial
risk of harm and of adverse effects on the public fisc. Most of the procurement law (see G. L.
c. 266, § 67A) and the competitive bidding law (see G. L.
c. 149, § 44A et seq.) violations concerned public building repairs
and construction projects. These laws
were enacted to ensure fair costs, professionalism, and accountability in
public contracts. See St. 1980, c. 579,
preamble. Here, because of Bisignani's
actions, the towns of Saugus and Nahant were deprived of the benefits of the
competitive bidding process. See
Interstate Eng'g Corp. v. Fitchburg, 367 Mass. 751, 757 (1975) (competitive
bidding statute, G. L. c. 149, §§ 44A-44L, "enables the
public contracting authority to obtain the lowest price for its work that
competition among responsible contractors can secure"). Potential harm to the public fisc -- for two
municipalities -- was thus at least "threatened" by Bisignani's
crimes. Contrast Bettencourt, 474 Mass.
at 74. Additionally, Bisignani's crimes
had the potential to allow work to be performed by contractors who did not meet
minimum statutory requirements. See John
T. Callahan & Sons v. Malden, 430 Mass. 124, 127-128 (1999), quoting
G. L. c. 149, § 44A (2), (contracts may be awarded only to
"the lowest responsible and eligible general bidder on the basis of
As the town manager of Saugus and the town
administrator of Nahant, Bisignani was responsible for overseeing all town
operations and for managing all town buildings and property. See Blaser v. Town Manager of Methuen, 19
Mass. App. Ct. 727, 731 (1985) (listing authority and duties of town manager
under home rule charter). As the town
purchasing agent and chief procurement officer, Bisignani was responsible for
upholding and complying with the public bidding and procurement laws. See G. L. c. 30B, § 2. Not only was Bisignani derelict in carrying
out his duties, but he also tried to cover up his crimes, further eroding the
public's trust. See Annese Elec. Servs.,
Inc. v. Newton, 431 Mass. 763, 767 (2000), quoting John T. Callahan & Sons,
430 Mass. at 128 (competitive bidding statute "places all general
contractors and subbidders on an equal footing in the competition to gain the
contract"); Interstate Eng'g Corp., 367 Mass. at 758 (competitive bidding
procedure "facilitates the elimination of favoritism and corruption as
factors in the awarding of public contracts and emphasizes the part which
efficient, low-cost operation should play in winning public
contracts"). Bisignani's actions
undermined the respect for government service, one of the basic purposes of
§ 15 (4). See MacLean, 432
Mass. at 351. See also DiMasi, 474 Mass.
at 196 ("forfeiture is intended to deter misconduct by public employees,
protect the public fisc, and preserve respect for government service").
For all of these reasons, we conclude that
the forfeiture of Bisignani's pension was not so grossly disproportionate to
the gravity of his offenses as to violate the excessive fines clause of the
Eighth Amendment as applied to him.
Legislative change. Bettencourt
is the first case in which the Supreme Judicial Court held that the total
forfeiture of a public employee's pension pursuant to § 15 (4)
violated the excessive fines clause of the Eighth Amendment. See Bettencourt, 474 Mass. at 77. In recognizing the possibility that the total
forfeiture could violate the excessive fines clause of the Eighth Amendment,
the court observed that "it is likely within the court's authority to
determine a level or amount of forfeiture or fine that would be
constitutionally permissible." Id. at
76. Noting the policy considerations,
however, the court did not act, and deferred to the Legislature the opportunity
to consider what should occur if an excessiveness determination is made. Id. at 77-79.
In response to Bettencourt, the Legislature convened a special
commission on pension forfeitures for the purpose of making recommendations
about possible changes to § 15 (4).
See St. 2016, c. 133, § 151. The commission filed its report and
recommended a substantial overhaul of the forfeiture provisions and process,
including a recommendation to abandon the all-or-nothing approach in the
current forfeiture statute. See Report
of the Special Commission on Pension Forfeiture (May 18, 2017) (report). Legislation was filed; however, the bill
never became law. Accordingly, as
Bisignani acknowledges, we must apply § 15 (4)'s "all or
nothing" approach to his circumstances.
See Gerber v. Worcester, 1 Mass. App. Ct. 811, 812 (1973).
Conclusion. Because we conclude that the pension
forfeiture as applied to Bisignani did not violate the Excessive Fines Clause,
we affirm the judgment of the Superior Court.
Bisignani's request for attorney's fees and costs is denied.
 Retirement Board of Saugus. The retirement board has not filed a brief or
otherwise participated in this appeal.
We shall refer to the Justices of the Lynn Division of the District
Court Department of the Trial Court in this opinion as the defendant.
 General Laws c. 32,
§ 15 (4), provides:
"In no event
shall any member [of a 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[,] . . . nor shall any
beneficiary be entitled to receive any benefits . . . on account of
such member. The said member or his
beneficiary shall receive . . . a return of his accumulated total
deductions [without added interest]."
We refer to
"members" of a public employee retirement system as "public
employees." See Public Employee
Retirement Admin. Comm'n v. Bettencourt, 474 Mass. 60, 61 n.1 (2016).
 This option provided Bisignani with a
lower monthly allowance than the other available options, but guaranteed an
allowance to his wife, if he predeceased her.
See G. L. c. 32, § 12 (2) (c). His wife is significantly younger than him.
 Bisignani was ineligible to contribute
to the Essex Regional Retirement Board in this position. He makes no argument that his crimes related
to his temporary position as the Nahant town administrator should be considered
differently from his crimes related to his employment as the Saugus town
 Specifically, eight convictions
involved "violation of the laws applicable to [Bisignani's] office or
position" within the meaning of § 15 (4): four counts of purchasing violations under
G. L. c. 266, § 67A; two counts of failure to advertise for
public works bidding in violation of G. L. c. 149, § 44J; and
two counts of finance violations by a municipal officer under G. L.
c. 44, § 62. The other four
convictions related to Bisignani's attempts to undermine the criminal
investigation and the grand jury proceedings:
concealing evidence from criminal proceedings in violation of G. L.
c. 268, § 13E (b); witness intimidation in violation of
G. L. c. 268, § 13B; altering public records in violation of
G. L. c. 66, § 15; and unlawful wiretapping in violation of
G. L. c. 272, § 99 C 1.
 Although Bisignani raised the Eighth
Amendment issue before the board, the board correctly concluded that it lacked
jurisdiction to decide the constitutional question. See Maher v. Justices of the Quincy Div. of
the Dist. Court Dep't of the Trial Court, 67 Mass. App. Ct. 612, 618-619
(2006), S.C., 452 Mass. 517 (2008), cert. denied, 556 U.S. 1166 (2009).
 General Laws c. 32, § 16 (3) (a),
states that the District Court "shall review [the board's] action and
decision, hear any and all evidence and determine whether such action was
justified. . . . The decision
of the court shall be final."
 The Eighth Amendment states: "Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted." The Eighth Amendment is
applicable to the States through the due process clause of the Fourteenth
Amendment to the United States Constitution.
See Timbs v. Indiana, 139 S. Ct. 682, 687 (2019); Maher, 452 Mass. at
522, and cases cited.
 From that dollar value, the judge
deducted $151,299.03, the amount of Bisignani's accumulated retirement annuity
savings account contributions. Under
§ 15 (4), these contributions must be returned to Bisignani and were
not subject to forfeiture. Therefore,
according to the judge's calculations, the total loss was $1,382,399.07. Bisignani argues that reducing the monetary
loss by the accumulated contributions was error, because the contributions were
not actually returned in light of the retirement benefits he had already
received. Adjusting for a minor
transcription error, we assume without deciding that the monetary loss was
$1,533,689. No other issue about the
deductions is properly before us in this limited review.
 Most of Bisignani's convictions are
felonies, which are generally deemed "serious in nature." Maher, 452 Mass. at 523-524. Even a conviction of a misdemeanor may be
deemed a serious enough offense to support forfeiture. See MacLean, 432 Mass. at 341, 348, as
explained in Bettencourt, 474 Mass. at 74 n.24 (two misdemeanor convictions
carrying maximum fine of $6,000 and four years' imprisonment).
 Bisignani's actual sentence is not a
factor in the proportionality analysis.
See Bettencourt, 474 Mass. at 74 n.23 (court declined to consider
"relative leniency of the sentence . . . as opposed to other
 General Laws c. 149,
§ 44A (1), defines "responsible" as "demonstrably
possessing the skill, ability and integrity necessary to faithfully perform the
work called for by a particular contract, based upon a determination of
competent workmanship and financial soundness." The statutory definition of
"eligible" excludes those "debarred from bidding" under any
applicable law and requires the contractor to certify that it can "furnish
labor that can work in harmony with all other elements of labor employed or to
be employed on the work." See
Fordyce v. Hanover, 457 Mass. 248, 259-261 (2010) (discussing complicated
procedure and criteria necessary to meet statutory requirement that all public
construction contracts be awarded to the "lowest responsible and eligible
 As Bisignani did not present evidence
of his personal finances to the board or to the District Court judge, the
record does not permit us to evaluate Bisignani's claims about the impact of
the forfeiture on his family and livelihood.
Bisignani's age (he was seventy-one years old at the time of the hearing
before the board) and significant years of service, common traits of many
retired public employees, do not prove that the forfeiture "after the
conclusion of his career" will deprive him of his livelihood. To the extent that Bisignani complains about
the unfairness of the forfeiture to his wife, the Legislature has directly
addressed this point in § 15 (4) ("In no event shall . . .
any beneficiary be entitled to receive any benefits . . . on account
of such member"). Bisignani also
points to the opinion of an individual board member who said that the fine was
"excessive," "stupid," and "asinine." This argument is unavailing, as "[i]t is
for the courts, not administrative agencies, to decide the constitutionality of
statutes." Maher, 67 Mass. App. Ct.
 Section 151 of c. 133 of the Acts of
2016 states in pertinent part:
"There shall be a special commission
on pension forfeiture to review the decision of the Supreme Judicial Court in
Public Employee Retirement Administration Commission v. Edward A. Bettencourt,
474 Mass. 60 (2016). . . .
The special commission shall make recommendations, including proposed
amendments to section 15 of chapter 32 of the General Laws. The special commission shall file its
recommendations, including any proposed legislation, with the clerks of the
senate and house of representatives."
 The special commission recommended,
among other things, the implementation of a tiered pension forfeiture system,
the prohibition of forfeiture based on misdemeanor convictions, protection from
forfeiture for innocent spouses, and moving jurisdiction of forfeiture appeals
from the District Court to the Superior Court.
See report at 6-14.
 The defendant's request to supplement
the appellate record with certified copies of a fifty-nine page response by the
Commonwealth to Bisignani's request for a bill of particulars and a 181 page
application for a search warrant is denied.
Our review is generally confined to the record from the court being
reviewed. See Bettencourt, 474 Mass. at
61 n.3. None of these documents were
submitted to the board or the District Court judge, and the Superior Court
judge denied a similar request for failure to comply with Rule 9A of the Rules
of the Superior Court. Moreover, unlike
a transcript of a plea colloquy (which the board was unable to obtain in this
case), the documents that the defendant seeks to add to the record contain no
admissions by Bisignani. See Nantucket
v. Beinecke, 379 Mass. 345, 352 (1979) (appropriate to take judicial notice of
matter only if "indisputably true").
See also Mass. G. Evid. § 201 (2021).