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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.