Since he retired in January 2009, DiMasi has received $139,621 in pension funds.
Former Massachusetts House Speaker Salvatore DiMasi walks out of the Federal courthouse in Boston, Wednesday, June 15, 2011 afternoon, after his conviction on conspiracy and other charges in a scheme to steer two state contracts worth $17.5 million to a software firm in exchange for payments. By KYLE CHENEY
State House News Service
BOSTON — Attorney General Martha Coakley is seeking the permission of the Superior Court to suspend the $5,000-a-month pension of former House Speaker Salvatore DiMasi, who was convicted last month of conspiracy, fraud and extortion.
In a June 23 filing to Superior Court assistant clerk Richard Moscato, David Marks, an assistant attorney general in Coakley's office, urged the court to stay a 2009 Boston Municipal Court ruling that permitted DiMasi to receive his pension while charges against him were pending.
Marks noted that since he retired in January 2009, DiMasi has received $139,621 in pension funds, exceeding his contributions to the pension system during his 30-year public career by more than $12,000.
Marks argued the monthly payments should be held in escrow until DiMasi's sentence is issued in September. DiMasi has indicated he plans to appeal his convictions in a case that U.S. District Court chief judge Mark Wolf has suggested could reach the U.S. Supreme Court.
DiMasi's lawyer, Thomas Kiley, has argued that attempts to withhold DiMasi's pension would be improper before DiMasi has had an opportunity to exhaust all potential appeals and motions.
In his motion, Marks argued that although DiMasi would be required to repay all pension funds he received as a result of his convictions, the former speaker's shaky finances - which resulted in Kiley being appointed as his lawyer at taxpayer expense - indicate he would likely be unable to repay the funds he's already obtained.
"Mr. DiMasi does not appear to have the resources to repay pension payments already made to him, to which he may not be entitled, or any restitution for which he may be responsible," Marks wrote. "Placing future pension payments in escrow will allow the parties the necessary time to determine if Mr. DiMasi is entitled to them, without running the risk that excess payments will not be repaid, or restitution will not be made."
Coakley's push to clarify the previous ruling on DiMasi's pension comes three days before the State Retirement Board is scheduled to meet and vote on whether to strip DiMasi of his pension. The board voted in 2009 to do so but was overturned in 2010 by Boston Municipal Court Judge Lawrence McCormick, who said the board overstepped its bounds by punishing DiMasi based on his indictment.
"The indictment itself is insufficient to lead to a conclusion that the charges are true," McCormick argued at the time.
But Marks pointed out that McCormick left open the possibility that his decision could be revisited if circumstances changed.
"The facts and circumstances have now changed," Marks wrote.
Accompanying Marks's filing was a June 17 letter to DiMasi - two days after his convictions - from Nicola Favorito, the executive director of the State Retirement Board, indicating that the board planned to consider acting to withhold DiMasi's retirement allowance. DiMasi, Favorito wrote, would have the ability to present testimony at a hearing to defend himself from the loss of his pension, if the board attempts to withhold future payments.
In a response on June 21, Kiley, DiMasi's attorney, rejected Favorito's suggestions, calling it "premised on a major error of law."
"The major error of law is the premise that last week's jury verdict is a 'final conviction' triggering pension forfeiture under [state law]," Kiley wrote. "It is neither a 'conviction' nor 'final.'"
"In this case the mere verdict is not enough; until a sentence is imposed, there is no 'conviction,' " Kiley continued. "Moreover [under state law] it is not enough that there be a conviction, i.e. imposition of sentence. Instead when and if there is a conviction, it must be 'final.' Every word in a statute must be given meaning, and in the context of a federal conviction, the plain meaning of 'final' is 'that a judgment of conviction has been rendered, the availability of appeal exhausted … Any suspension or termination of Mr. DiMasi's retirement allowance would be unlawful and expose the Board members, yet again, to liability.' "