COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Rita Capece,

Petitioner,
Docket No. CR-07-586

v.
Dated: March 5, 2010


State Board of Retirement,


Respondent.


Appearance for Petitioner:

Rita Capece, pro se.

Appearance for Respondent

State Board of Retirement:

Melinda E. Troy, Esq.

Associate General Counsel
State Board of Retirement
One Ashburton Place, Room 1219
Boston, MA 02108

Administrative Magistrate:

Richard C. Heidlage, Esq.

SUMMARY OF DECISION

Petitioner is not entitled to change her deceased husband's retirement option selection after his retirement and death. She had signed the spousal acknowledgement on the option selection form showing selection of Option B. No evidence showed the deceased husband was mentally impaired at the time he made his election, and her testimony that she believed the form she signed was a disability form is irrelevant in the absence of any fraud or misrepresentation on the part of the Respondent. Even if the option selection was invalid for some reason, the result would not have been changed, as the default selection is Option B in the absence of a valid election.


DECISION AND ORDER

Pursuant to G.L. c. 32, §16(4), the Petitioner Rita Capece is appealing the July 30, 2007 decision of the Respondent, State Board of Retirement, denying her request to change the option selected by her deceased spouse at the time of his retirement. Ex. 1. The Appellant filed a timely appeal of this decision in accordance with the provisions of G.L. c. 32, § 16(4). Ex. 2.
This matter was originally scheduled for hearing on November 21, 2008 and continued several times thereafter at the request of the Petitioner.
A hearing on the merits of the appeal was held on March 4, 2010 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, MA. I accepted 9 exhibits into evidence at the hearing. Ms. Capece testified on her own behalf. I recorded the hearing on digital media.

FINDINGS OF FACT

Based on the documents entered into evidence and the testimony of Petitioner, I make the following findings of fact:

1. The petitioner, Rita Capece, is the widow of Charles A. Capece who was a Trooper with the Massachusetts State Police and a member of the Massachusetts State Employees Retirement System. Testimony.

2. On or about October 6, 1995, Trooper Capece applied for superannuation retirement with 38 years and 4 months of service. Ex. 3.

3. Trooper Capece elected to have his pension paid in accordance with Option B as provided in G.L. c. 32, § 12(2). Ex. 3.

4. The Petitioner also executed the Option B election form as the witness. Ex. 3.

5. Before the Petitioner executed Ex. 3, she had not had any communication with anyone representing the Respondent. She did have communications with Ms. Linda Turner who was working at the State Police barracks in Framingham, but Petitioner does not recall any representations about the form. Testimony.

6. Charles Capece died on May 4, 2007. Ex. 5.

7. On or about May 31, 2007, the Respondent sent Petitioner a Beneficiary Claim Statement noting that she was entitled to receive $8,269.45. Ex. 5.

8. Petitioner did not accept the payout provided for in the Beneficiary Claim Statement, but rather requested the Respondent to permit her to change her late husband's option election. Ex. 1.

9. The Respondent denied the Petitioner's request and notified her of its decision on July 30, 2007. Ex. 1.

10. The Petitioner filed an appeal on August 8, 2007. Ex. 2.


CONCLUSION AND ORDER


The Petitioner is not entitled to prevail in this appeal. G.L. c. 32, § 12(1) provides that the election of an option must be made prior to retirement and, in absence of a valid election, the pension shall be paid in accordance with Option B:
(1) Election of Option. -- . . . Election of an option shall be made by such member in writing on a prescribed form filed with the board, and once made may be changed from time to time by making a new election in a similar manner; provided, that no election of an option shall be valid unless such election is filed with the board on or before the date of receipt by the board of the written application for the retirement of such member . . . or unless such election is filed with the board on or before the date his allowance becomes effective. Upon receipt of such election by the board, the option elected shall take effect as of the date the retirement allowance of such member becomes effective . . . . If no election of an option is made or if none is in effect as provided for in this section, the retirement allowance of such member shall be paid in accordance with the terms of option (b) of subdivision (2) of this section.

For any member who is married, an election shall not be valid unless it is accompanied by the signature of the member's spouse indicating the member's spouse's knowledge and understanding of the retirement option selected. The retirement board shall provide the member and spouse with detailed information regarding the benefit option selected in order for the member and spouse to make an informed decision regarding said option.
. . . .

No provision of Chapter 32 permits a retired member or surviving spouse to change the option once the member has retired, and we have often held that there is no such right. See Elsmore v. Taunton Retirement Board, CR-05-533 (DALA June 27, 2008); Latsey v. State Board of Retirement, CR-00-723 (DALA), aff'd (CRAB 2001); Taylor v. State Board of Retirement, CR-00-599 (DALA 2000), aff'd (CRAB 2001); Byrne v. Malden Retirement Board, CR-96-766 (DALA 1997), aff'd (CRAB 1998).

Petitioner testified that she believed the form was a disability retirement application based on her husband's physical condition at the time. However, Exhibit 3 is an application for superannuation and the option selection portion she signed is similarly unambiguous. In any event, the Petitioner testified that she had not had any communications with anyone representing the Respondent retirement board prior to the time she signed the Option Selection form. She is therefore bound by its terms, whether she read it or not. Absent the elements of fraudulent inducement, a party will be bound to agreements signed voluntarily, but not read. Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687, 693 (1999); Farrell v. Chandler, Gardner & Williams, Inc., 252 Mass. 341, 345 (1925); Grace v. Adams, 100 Mass. 505, 507 (1868).

Even if the Petitioner could show that the election was invalid, this would not change the result. Under § 12(1), in the event that there is no valid option election as of the date the member retires, the pension is to be paid in accordance with Option B, the manner in which it was paid in this case.

One final matter. At the hearing, the Petitioner stated that she had filed the appeal to seek an accidental death benefit. Whatever the merits of that claim may be, and I do not express an opinion on that point, there is no such claim for an accidental death benefit on the record now before me. There is no evidence that the Petitioner made application for such a benefit before the retirement board or that it was denied. I do not therefore have jurisdiction to consider such a claim.


Based on the foregoing, I affirm the decision of the Respondent retirement board not to permit the Petitioner to change the option selected by her spouse, and the Petitioner's appeal is dismissed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Richard C. Heidlage
Acting Chief Administrative Magistrate

Dated: March 5, 2010