Summary
In Lawrence, the Appeals Court was faced with a similar interpretative task-determining whether, under G.L.c. 32, § 4(1)(b), prior service to be credited required monetary contributions to the retirement system.
Summary of this case from Plymouth Retirement Board v. Contributory Retirement Appeal BoardOpinion
14-P-818
05-27-2015
LAWRENCE RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Lawrence retirement board (board) appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB). CRAB ordered the board to award three members of the Lawrence retirement system (LRS) -- Mary Ann Bergeron, Priscilla Schiavoni, and Joseph Costanzo (collectively, the members) -- credit for their past service with the Merrimack Valley Regional Transit Authority (MVRTA) after they became members of the LRS when the MVRTA accepted the provisions of G. L. c. 32, §§ 1-28, on July 1, 2008.
In this appeal, the board seeks a reversal of the CRAB order, asserting that it was error to credit the members for their past service without requiring them to make any monetary contribution to the retirement system.
Background. After the MVRTA voted to join the LRS, the board sought an opinion in March, 2008, from the Public Employee Retirement Administration Commission (PERAC), the board's oversight authority, with respect to crediting the members for their prior service. PERAC stated that pursuant to G. L. c. 32, § 4(1)(b), they would receive credit "without any additional contributions made to the LRS." On November 22, 2011, the request of the members for such credit was denied by the board. The members appealed to the Division of Administrative Law Appeals. An administrative magistrate, in a decision issued on September 7, 2012, held that the members "shall have counted as creditable service the period of their employment with the MVRTA prior to July 1, 2008, and they shall not be required to pay for the creditable service." That decision was affirmed by CRAB on June 12, 2013. The board appealed to the Superior Court under G. L. c. 30A, § 14(7), and in a decision dated April 9, 2014, a Superior Court judge upheld CRAB's decision.
We now turn to the central issue whether the members are required to pay for their past service for which they were credited.
Discussion. 1. Standard of review. We recognize that "CRAB has been charged with a principal role in interpreting G. L. c. 32, the governing statute. Namay v. Contributory Retirement Appeal Bd., 19 Mass. App. Ct. 456, 463 (1985). We accept the facts found by CRAB when there is substantial evidence to support them, see Fergione v. Director of the Div. of Employment Security, 396 Mass. 281, 283 (1985), and also accept the reasonable inferences CRAB draws from the facts. See Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 641 (1998)." Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. 434, 437-438 (2010). "[W]here a question of law is involved, we act de novo." Bristol County Retirement Bd. v. Contributory Retirement Appeal Bd., 65 Mass. App. Ct. 443, 451 (2006).
2. Credit for prior service. CRAB's conclusion that a section of the contributory retirement law, G. L. c. 32, § 4(1)(b), is controlling in this case, was based on its adoption of the findings of fact of the administrative magistrate. In reviewing those findings we observe that the magistrate analyzed the numerous sections of the statute which apply to circumstances where payment for entry or participation in the system is or is not required. There are eight sections in addition to § 4(1)(b) which do not contain an explicit payment requirement, and there are thirty-two sections and subsections which explicitly require payment for creditable service. The magistrate properly focused on § 4(1)(b), which states in relevant part:
Both CRAB and the administrative magistrate referred to an administrative decision, Carr v. Framingham Retirement Bd., CRAB docket no. CR-10-761-762-763 (June 12, 2013), as containing facts substantially similar to the facts in the present case. That decision concluded that employees of the Metro West Regional Transit Authority were entitled to credit for their past service without payment when it became subject to a contributory retirement system. The decision also presents a statutory history of G. L. c. 32 and § 4(1)(b). That section has remained unchanged since 1945.
Such payments variously have been referred to as "purchase of prior membership"; "buyback of service"; and "make-up payments."
"Periods of service in any governmental unit prior to the date a system becomes operative therein rendered by any employee who becomes a member when such system first becomes operative in such governmental unit, . . . shall, subject to the provisions and limitations of sections one to twenty-eight inclusive, be counted as creditable prior service."
The wording of this section unambiguously describes the circumstances of the members in this case -- they served in a governmental unit (MVRTA) prior to the time when a retirement system became operative when the unit accepted G. L. c. 32, and, unlike the sections noted above which explicitly require payment for credit for that service, § 4(1)(b)is silent. Here, "where the Legislature has employed specific language [requiring payment in certain sections], but not in another, the language should not be implied where it is not present." Beeler v. Downey, 387 Mass. 609, 616 (1982).
At the end of its brief the board again asserts that an inequity results from allowing members credit for long terms of service without requiring them to pay into the system, resulting in "disproportionately burdening the [s]ystem as a whole." This issue cogently was addressed by the administrative magistrate at the end of his decision. Referring to G. L. c. 32, § 22(7)(c)(iii), he opined that the MVRTA is required to make a special appropriation to make the LRS whole for any portion of the members' retirement allowances attributable to service performed before they were members of the LRS. The magistrate assumed the board was unaware of this statutory provision for unfunded liabilities.
In any event, we think it is clear from the statutory scheme that the Legislature treats certain categories of creditable service differently.
Therefore, CRAB's conclusion that § 4(1)(b) is controlling in this case is amply supported by the evidence, is reasonable, and, we conclude, is correct as matter of law. Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. at 438, and cases cited.
We have not overlooked arguments made in the board's brief, but because they do not comply with the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), we conclude they require no discussion.
Judgment affirmed.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 27, 2015.