THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Joan Fournier,

Petitioner

v. Docket No. CR-06-476

Teachers' Retirement System,


Respondent

Appearance for Petitioner:

Pro Se


10 Summit Street
Whitinsville, MA 01588-1912

Appearance for Respondent:

James C. O'Leary, Esquire


Deputy General Counsel
Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Joan Fournier, is appealing from

the July 10, 2006 action of the Respondent, Teachers' Retirement System (TRS), denying

her request for late enrollment in the RetirementPlus program. (Exhibit 1). The appeal

was timely filed. (Exhibit 2). A hearing was held on March 13, 2008 at the offices of

the Division of Administrative Law Appeals (DALA), 98 North Washington Street,

Boston, MA.

At the hearing, fourteen (14) exhibits were marked. Exhibit 8 was later stricken.

The Petitioner testified and argued in her own behalf. The TRB stated its argument for

the record. One tape was made of the proceedings.


FINDINGS OF FACT

Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, Joan Fournier, is a retired member of the TRS with an effective retirement date of February 14, 2007. (Exhibit 7).

2. Between March 1, 2001 and June 30, 2001, the TRS issued 95,962 pre-filled out information packets to its active members at their home addresses. (Exhibit 10).

3. In addition, during the same time period, the TRS issued RetirementPlus information packets and blank election forms to all school districts in the Commonwealth. The number of packets issued to each school district was approximately equal to 8% of the number of active teachers the TRS had enrolled for each district. In addition, during this time period the TRS re-issued 1,800 packets in response to information regarding non-delivered information packets (i.e. post office returns as "undeliverable as addressed", etc.). (Id.).

4. Also from March to June 2001, the TRS made available to school districts, for printing through the TRS website, an on-line version of the information packet materials and required election form. (Id.).

5. TRS records reflect that an information packet was sent to the Petitioner at her home address during the spring of 2001. (Exhibit 9).

6. The Petitioner telephoned the TRS in March 2001. The Petitioner provided her name and social security number and requested that she be enrolled in RetirementPlus. She was informed that her call would be redirected to another unit. After the transfer, the phone rang and rang. The Petitioner did not speak to another person. (Testimony).

7. A few days after her March 2001 call to the TRS, the Petitioner received a RetirementPlus CD. Because no one else that she knew had received one of these, she believed that the CD reflected confirmation of her "registration as a RetirementPlus participant". (Testimony, Exhibit 13 and Attachment A).

8. Some time later in the spring of 2001, the Petitioner asked at the North Middlesex Regional School Superintendent's office for an early retirement form to fill out. She was told that these could not be located. She did not pursue the matter further with the school system. (Id.).

9. The TRS did not receive a completed election form from the Petitioner to participate in the enhanced retirement program provided for in G.L. c. 32 s. 5(3)(4)(i) (RetirementPlus) by June 30, 2001.

10. On July 1, 2001, the Petitioner was determined by the TRS to have been non-responsive to the election mailing, and was therefore considered to have made a negative election.

11. In a letter dated July 10, 2006, the TRS notified the Petitioner that it had neither the discretion nor the authority to accept any election to participate in RetirementPlus after the prescribed June 30, 2001 deadline. (Exhibit 1).

12. The Petitioner filed a timely appeal. (Exhibit 2).

CONLUSION

The Petitioner is not entitled to prevail in this appeal. G.L. c. 32 s. 5(4)(i) specifies that the election into RetirementPlus must occur before July 1, 2001. There are no statutory exceptions to this deadline. The retirement materials that the Petitioner received in the mail, but did not thoroughly review or heed, informed her that, if she wished to participate in RetirementPlus, she needed to return her election form no later than June 30, 2001.

The Petitioner unreasonably relied on her placing a phone call to the TRB as the only act necessary for enrollment in the program. Further, she did not pursue the obtaining of an application to the program beyond her first inquiry. Her behavior was far too naïve and/or cavalier for one looking to establish an important legal relationship with the TRS.

In conclusion, neither the TRS nor the Contributory Retirement Appeal Board (CRAB) has the power to waive the deadline specified in the statute. The decision of the TRB is affirmed.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: May 9, 2008


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