A three-judge panel of the Massachusetts Appeals Court has upheld the 2016 decision of the Winthrop Retirement Board that strips the pension of former Winthrop police chief Angelo LaMonica, who pled guilty in 1995 in federal court to charges of filing false tax returns.
The Appeals Courtâ€™s decision reverses the judgments by a judge of the Boston Municipal Court and a judge of the Superior Court that had overturned the Winthrop Retirement Boardâ€™s decision.
The board also is seeking to recoup the almost $1 million of retirement payments that have been paid to LaMonica over the past 25 years since his retirement in 1995. However, the Appeals Courtâ€™s decision orders that consideration of this issue be remanded â€œto the Boston Municipal Court (BMC) for consideration of any additional challenges LaMonica makes, including the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution.â€ (The Eighth Amendment states, â€œExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.â€)
The Appeals Courtâ€™s decision lays out the long and, at this point, tortured history of the seemingly-endless saga involving LaMonica and the Winthrop Retirement Board. In sum, the background is as follows:
Angelo LaMonica was a popular, well-respected, and decorated police officer in Winthrop for 31 years, rising through the ranks from patrolman to sergeant to lieutenant before he became the chief in 1989.
However, LaMonicaâ€™s long career of service and his six-year tenure as chief came to an abrupt end when he resigned from the department in 1995. The impetus for LaMonicaâ€™s resignation was a probe by the FBI, reportedly with information provided by officers of the Winthrop P.D., into allegations that fraternal and social clubs in the town were being allowed to operate video poker machines and to make cash payouts to the winners.
Although the machines themselves were legal, cash payouts were not allowed at that time. Federal authorities charged in a multi-count indictment, spanning a six-year period, that LaMonica was receiving payoffs from the provider of the poker machines in order to allow these illegal gaming operations to operate without police interference. He also was charged with income tax evasion for not reporting the bribe money he had received as income on his tax returns.
According to the Appeals Courtâ€™s decision, the timeline and original charges were as follows: â€œOn April 5, 1995, LaMonica was indicted on several Federal charges: (1) extortion under color of official right in violation of 18 U.S.C. Â§ 1951; (2) conspiracy to obstruct enforcement of State gambling laws in violation of 18 U.S.C. Â§ 1511; and (3) filing false income tax returns for the years 1988 through 1993 in violation of 26 U.S.C. Â§ 7206.â€
LaMonica was indicted shortly after he left office and eventually pled guilty to the sole offense of filing a false tax return. An important aspect of LaMonicaâ€™s eventual plea bargain is that government prosecutors dismissed the entirety of their initial indictment, thereby removing all of the counts involving the extortion and conspiracy allegations, and brought forward a new complaint consisting only of the single criminal offense of filing false tax returns, which was the lone charge that formed the basis for LaMonicaâ€™s admission and eventual sentencing in federal court.
After admitting to filing a false tax return, LaMonica was ordered to serve 14 months in prison and pay a $20,000 fine.
On two separate occasions, in 1996 and 2002, the Winthrop Retirement Board considered whether LaMonicaâ€™s admission to filing a false federal tax return was sufficient under state law to take away his pension. On both occasions, upon the advice of the boardâ€™s then-counsel in those years (who were different attorneys), the board decided that inasmuch as LaMonicaâ€™s guilty plea to a charge of filing a false tax return was not directly related to his duties as a police officer, the board did not have a legal basis to revoke his pension.
However, in 2016 an investigative report on a Boston TV channel raised anew the issue of whether LaMonica should be entitled to collect a pension. The Winthrop Retirement Board revisited the matter and concluded that although the filing of a false tax return is not related to the position of police chief, the underlying basis for LaMonicaâ€™s admission on the tax charge stemmed from his acceptance of the bribes to allow the illegal video poker games to operate, which directly involved his obligation as police chief to enforce the laws of the Commonwealth.
In short, the Retirement Board concluded that there was a sufficient nexus between the filing of the false tax returns and LaMonicaâ€™s acceptance of the bribes such that he should forfeit his pension, a determination that was rejected by the judges of the BMC and Superior Court.
The Appeals Court summed up the issue before it as follows: â€œAfter press inquiries, the board gathered more information, conducted a hearing in 2016, and voted to order forfeiture of LaMonicaâ€™s pension. The board concluded that the income LaMonica failed to report on his income tax returns was paid to him so that he, in his capacity as a police officer, would â€˜turn a blind eye to the illegal operation of video poker machines in certain private establishments in Winthrop.â€™ This case thus requires us to consider whether, pursuant to G. L. c. 32, Â§ 15 (4), LaMonicaâ€™s convictions for filing false income tax returns for the years stated require forfeiture of his retirement pension.â€
The Appeals Court went on to conclude, â€œGeneral Laws c. 32, Â§ 15 (4), inserted by St. 1987, c. 697, Â§ 47, provides that â€˜[i]n no event shall any member [of the State employeesâ€™ 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.â€™ Because there was a direct factual link between LaMonicaâ€™s position as a public employee and his criminal conviction of filing false tax returns, he is ineligible to receive a retirement allowance.â€
Both the Retirement Board and the Appeals Court relied upon the pre-sentencing report offered by federal prosecutors to the sentencing judge as evidence of the nexus. The Appeals Courtâ€™s opinion states, â€œThe sentencing judge adopted the factual findings in the presentence report, though not the recommended sentence. As set forth in that report, â€˜First as [l]ieutenant, then as [c]hief of the Winthrop Police Department, [LaMonica] received illegal payments including an initial payment of $1,000, then $100 per week, for the next [fourteen] years from Raymond Magee, to cover-up the video poker machines in the town of Winthropâ€™.â€
The Appeals Courtâ€™s decision states in conclusion, â€œThere was substantial evidence to allow the board to find the direct factual link between the payments by Magee to LaMonica that were the basis for the convictions of filing false
income tax returns, as those payments were â€˜inextricably intertwinedâ€™ with his position as a police officer. The board did not rely on the dismissed indictment. Rather, the board relied on a sentencing report that was adopted by the Federal
judge and that made the direct factual link between LaMonicaâ€™s position as a police officer and the illegal payments he received to cover up the video poker machines.
â€œWe therefore conclude that the boardâ€™s decision that there was a direct factual link between LaMonicaâ€™s position as a police officer and the crimes to which he pleaded guilty was supported by substantial evidence, and that G. L. c. 32,
Â§ 15 (4), and the case law interpreting it, mandate forfeiture.â€
LaMonica still has the available legal avenue of filing an application for further appellate review to the full Supreme Judicial Court within 21 days of the Appeals Courtâ€™s decision.