28 Mass. App. Ct. 366 | Mass. App. Ct. | 1990
The primary question before us is the construction of the term “misappropriation of funds” as used in G. L. c. 32, § 15(1).
The following facts were undisputed. The plaintiff was an employee of FRHA for sixteen years until his resignation on March 31, 1980. From 1977 through 1980, he was executive director of the authority and its contracting officer. While employed by the authority, and in his previous positions of mayor of Fall River (eight years) and as a State tax examiner (twelve years), the plaintiff was a member of the contributory retirement system. He applied for retirement benefits on March 27, 1980, and his application was approved by the retirement board of Fall River.
In August, 1981, the plaintiff was indicted on three counts, and in February, 1982, a Federal jury found him guilty on two of these counts, namely, conspiracy under 18 U.S.C. § 371 (1976), and violating the Travel Act, 18 U.S.C.
Shortly after the plaintiffs indictment in August, 1981, the, retirement board of Fall River suspended payment of his retirement allowance. The plaintiff appealed to CRAB, which held that he was disqualified to receive a pension. On his appeal to the Superior Court, the matter was remanded for findings as to the amount misappropriated and the costs of the investigation. See note 2, supra. On remand, CRAB found that $155,852 had been misappropriated.
1. Misappropriation of funds. The plaintiff contends that participation in a scheme of bribery and kickbacks from a contractor is not covered by the term “misappropriate,” because he did not take money from FRHA and apply “that” money to an illegal purpose or appropriate it to his own use. “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 . . . .” Commonwealth v. Galvin, 388 Mass. 326, 328 (1983) (citations omitted). Commonwealth v. Rondeau, 27 Mass. App. Ct. 55, 59 (1989). The ordinary dictionary definitions refute the plaintiffs narrow construction.
The American Heritage Dictionary 838 (1976) defines “misappropriate” as follows: “La. To appropriate wrongly, b. To appropriate dishonestly for one’s own use; embezzle. 2. To use for illegal purposes.” In Webster’s Third New International Dictionary 1442 (1971), the word is defined as: “la: to apply to illegal purposes ... b: to appropriate dishonestly for one’s own use: embezzle ... 2: to appropriate wrongly or misapply in use . . .” The plaintiffs restricted construction is specifically rejected in Black’s Law Dictionary 901 (5th ed.
These definitions of “misappropriate” clearly cover the plaintiffs actions in approving excess payments to a contractor in order to provide kickbacks to himself and others. The funds of FRHA were wrongly appropriated and misapplied.
2. Amounts misappropriated. The plaintiff also claims that the amounts found by CRAB to have been misappropriated were not supported by substantial evidence. Assuming, without deciding, that the plaintiff has made an argument sufficient to meet the requirements of Mass. R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), we find his contentions without merit.
The transcripts of Arruda’s trial in Federal court and the decision of the United States Court of Appeals for the First Circuit in affirming the convictions formed the basis of CRAB’s decision. Under G. L. c. 30A, § 1(6), inserted by St. 1954, c. 681, § 1, “ ‘Substantial evidence’ means such evidence as a reasonable mind might accept as adequate to support a conclusion.” The transcripts and the court decision meet that requirement. Cf. Commonwealth v. Santosuosso, 23 Mass. App. Ct. 310, 313 (1986), and authorities there cited; Liacos, Massachusetts Evidence 272, 454-455 (5th ed. 1981). The testimony was subject to cross-examination by Arruda in the Federal proceedings where he had the same interest as in the case at bar to refute that testimony.
The amounts found by CRAB are supported. There was evidence: (1) that the contract of FRHA with a contractor, Parkway Windows Corporation (Parkway), was increased by $82,000 to allow a kickback to Parkway and to members of
Judgment affirmed.
As appearing in St. 1945, c. 658, § 1, G. L. c. 32, § 15(1), provides in relevant part: “Any member who has been charged with the misappropriation of funds or property of any governmental unit in which or by which he is employed or was employed at the time of his retirement . . . shall be granted a hearing by the board .... If the board after the hearing finds the charges to be true, such member shall forfeit all rights under sections one to twenty-eight inclusive to a retirement allowance or to a return of his accumulated total deductions for himself and for his beneficiary, or to
The matter was presented twice to the Superior Court. After an initial decision by CRAB holding that the plaintiffs misconduct in public office disqualified him from the receipt of a pension, a judge of the Superior Court, on the plaintiffs appeal, agreed that the misconduct constituted misappropriation. He remanded the matter to CRAB for findings on the ground that a determination of the amount misappropriated was necessary to ascertain the benefits, if any, to which the plaintiff was entitled. See G. L. c. 32, § 15(1), note 1, supra. The present appeal is from an affirmance of CRAB’s decision after remand.
General Laws c. 32, § 15(3A) and § 15(4), are not involved in this appeal. The first judge found that paragraph (3A) of G. L. c. 32, § 15, inserted by St. 1982, c. 630, § 20, was inapplicable to the plaintiff, and, in this appeal, CRAB does not argue otherwise. See Collatos v. Boston Retirement Bd., 396 Mass. 684, 685 n.4 (1986). Paragraph (4) of G. L. c. 32, § 15, which precludes payment of a retirement allowance to an employee “after final conviction of a criminal offense involving violation of the laws applicable to his office or position,” was inserted by St. 1987, c. 697, § 47, and, by § 135, made applicable only to criminal offenses committed on or after its effective date, January 12, 1988.
In Collatos v. Boston Retirement Bd., 396 Mass. 684, 686 (1986), the court, in considering the application of G. L. c. 32, § 15(3A), stated: “A statute designed to enforce the law by punishing offenders, rather than simply by enforcing restitution to those damaged, is in the nature of a penal statute.” We need not consider whether § 15(1) is a penal statute because, in our view, the ordinary meaning of “misappropriation” brings the plaintiff within its ambit.
“Peculation” is defined in Black’s Law Dictionary 1017-1018 (5th ed. 1979) as: “The unlawful appropriation, by a depositary of public funds, of the property of the government intrusted to his care, to his own use, or that of others. The fraudulent misappropriation by one to his own use of money or goods intrusted to his care.”