ANDREW BISIGNANI vs. JUSTICES OF THE LYNN DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT & another. [Note 1]

BLAKE, J. 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 [4]). [Note 2] 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 United 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 he 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

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for superannuation retirement was allowed; on January 29, 2012, he began receiving $6,425 per month, his "option C" retirement allowance. [Note 3] Almost immediately, Bisignani commenced part-time employment as the temporary town administrator of Nahant, a position from which he resigned in June 2014. [Note 4] 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. [Note 5] 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). [Note 6]

Bisignani sought review of the board's decision in the District

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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 he 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). [Note 7] 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.

1. 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

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approximately two hundred years after its ratification. [Note 8] 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.

a. 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. [Note 9] Bisignani received all of the money that he paid in to the retirement system, but he 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 [623]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).

b. 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 [Bisignani]'s culpability." 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.

i. 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.

ii. Other illegal activities. While on this record there is no evidence that the eight convictions linked to Bisignani's office

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were "related to" any other contemporaneous illegal activities, Bettencourt, 474 Mass. at 72, they led to the commission of additional crimes. [Note 10] 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).

iii. 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. [Note 11] These penalties reflect the significant gravity and seriousness with which the Legislature viewed these crimes. Indeed, convictions of 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 that 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").

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iv. 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 competitive bids"). [Note 12]

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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. [Note 13]

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2. 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. [Note 14] 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). [Note 15] Legislation was filed; however, the bill never became law. Accordingly, as Bisignani acknowledges, we must apply § 15 (4)'s

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"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. [Note 16]

Judgment affirmed.