Justice Janet Sanders said the board can only withhold pension payments after a final conviction and that a final conviction cannot take place before sentencing.
Former Massachusetts House Speaker Salvatore DiMasi makes a statement outside the Federal Courthouse in Boston 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. DeMasi's attorney Thomas Kiley is at right.By STEVE LeBLANC
BOSTON — A Superior Court judge on Wednesday denied a request by the state Retirement Board to let it vote to suspend the pension of former House Speaker Salvatore DiMasi.
Assistant Attorney General David Marks had argued that the board should be given the ability to place DiMasi's $4,981.86 a month pension in an escrow account given his recent conviction on federal corruption charges.
In her ruling, however, Justice Janet Sanders said the board can only withhold pension payments after a final conviction and that a final conviction cannot take place before sentencing.
DiMasi's sentencing is scheduled for Sept. 8.
Sanders concedes that the decision to continue allowing state pension payments to DiMasi may not be popular, but it is the law. Earlier this month, a jury found DiMasi guilty of using his power as speaker to steer two state contracts worth a combined $17.5 million to a software company in exchange for payments.
"That the statute does not permit the Board to set aside or hold in escrow pension payments pending the resolution of a criminal prosecution could be viewed by some as unfortunate (particularly in a case like this one)," Sanders wrote in her decision.
"But the remedy for that omission in the statute lies not with the courts, but with the legislature," she added. "In the meantime, this court has an obligation to construe the statute as written."
Treasurer Steven Grossman, who is also the chairman of the Retirement Board, had hoped the board could vote to suspend DiMasi's pension at its Thursday meeting.
Sanders' decision takes that option off the table, he said.
Steven Grossman"We respect and will abide by the court's decision," Grossman said in a statement following the ruling.
"We took reasonable steps to protect the interests of the Commonwealth's taxpayers," he added. "I continue to believe it's appropriate to act responsibly to prevent individuals from collecting a pension once they've been convicted of crimes related to their office."
Sanders' ruling came a day after a court hearing during which Marks argued on behalf of the Retirement Board to allow it to place the pension payments in escrow, in part to protect taxpayers.
DiMasi's lawyer, Thomas Kiley, argued in court that the board can't suspend a state pension until after a conviction is final. Kiley pointed out that even Marks agreed that a conviction isn't considered final before sentencing. Kiley went further, arguing that a conviction isn't final until after every appeal has run its course, a process that could take years.
Kiley said the judge paid attention to the law when making her decision.
"I always persuade myself, but I never know whether I'm persuading the judge, so I am pleased with the outcome," Kiley said Wednesday.
Sanders also rejected a second argument by the board that under one part of the statute, it is allowed to stop pension payments to a contributing member charged with "misappropriation of government funds," provided that it first holds an evidentiary hearing.
Sanders pointed out that the board has not held such a hearing.
Kiley has argued that DiMasi was not charged with misappropriation of government funds.
DiMasi, a Boston Democrat, was convicted June 15 of one count of conspiracy, several counts of theft of honest services and one count of extortion under color of official right.