COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Mary Elsmore,

Petitioner

v. Docket No. CR-05-533

Taunton Retirement Board,

Respondent

Appearance for Petitioner:

Mary Elsmore, pro se

39 Alcott Circle
Taunton, MA 02780

Appearance for Respondent:

Nan O'Neill, Esq.

Murphy, Hesse, Toomey
& Lehane, LLP
300 Crown Colony Drive, Suite 410
P.O. Box 9126
Quincy, MA 02269-9126

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G.L.c.32, §16(4), the Petitioner, Mary Elsmore, is appealing the June 21, 2005 decision of the Respondent, Taunton Retirement Board, denying her request to change her late husband's option election from Option A. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held June 8, 2006, at the offices of the Division of Administrative Law Appeals (DALA), 133 Portland Street, 3rd Floor, Boston, MA 02114, pursuant to G.L.c.7, §4H.

Various documents are in evidence. (Exs. 1 - 9) One tape was used. The Petitioner testified and presented the testimony of her neighbor, Susan Millette. Both parties made arguments on the record.

FINDINGS OF FACT

1. Edward Elsmore, d.o.b. 2/24/35, worked for the Commonwealth's Department of Mental Health doing maintenance work for a brief time before going to work for the Taunton Housing Authority as a Storekeeper-Mechanic, before he began to give consideration to filing for superannuation in and around March 2003. At the time he had ten years of creditable service and was in Group 1. (Exs. 1, 3 & 4)

2. By March 2003, Mr. Elsmore was having disputes with his supervisor, and found it hard to be at work due to such disputes. He was not considering retirement due to any health concern or condition. He felt he was in good health at the time he decided to seek retirement. (Testimony)

3. Mary Elsmore was married to and living with Mr. Elsmore at the time he decided to retire and thereafter. She knew only that he was considering retirement due to the poor working relationship he had with his supervisor. (Testimony)

4. Mary Elsmore has been a state government employee with retirement system membership, and thinks she has around thirty years of creditable service. She makes very little salary in her work. (Testimony)

5. In connection with figuring out his ability to retire, Mr. Elsmore accomplished a buy back for creditable service of the time he worked for the Department of Mental Health. He did this in the fall 2002. (Exs. 4 & 5)

6. Mr. Elsmore's superannuation retirement application was filed on April 1, 2003 with the Taunton Retirement Board. The application contained much typed in information. Mr. Elsmore wrote in certain information, including his social security number and the date of April 1, 2003 next to his signature. (Ex. 4)

7. Mr. Elsmore received an option election form with typed in estimated information as to what his retirement allowances would be under the Options A, B and C. The instructions on the form alerted him that once an option was elected, it could not be changed after the effective date of retirement. The estimated amount entered for Option A was $9,155.16; for Option B $8,469.96; and, for Option C $6,341.76. The form contains Mr. Elsmore's signature as selecting Option A on April 7, 2003. (Ex. 4)

8. Page 3 of the option election form which addresses Option C information, at some point was filled in, signed and dated by Mr. Elsmore on April 24, 2003, as though he was electing it and listing his wife as the beneficiary. This page 3 also contained under the section after Option C at "Witness" of Mary Elsmore, signing on April 24, 2003. She also signed the "Spousal Acknowledgement" on page 3 on April 24, 2003. In addition, there is a large hand written "X" that blocks out the election of Option C that Mr. Elsmore signed. And, he writes a note in the margin next to this which states:

Filled out this section in error. I chose Option A. (Ex. 4)

9. Mrs. Elsmore does not recall any discussion with her husband concerning the three options and what each would mean in terms of any benefits to her if he should pass away. She recalls simply signing the page 3 of the option election form in the places where he told her to sign. She did not read or understand what she was signing. She is dyslexic and has learning disabilities. She has trouble with reading and reading comprehension. She does recall her husband telling her that she makes so little money that his pension would be there to help her. She understood that she would receive the funds he had contributed into the retirement system if he should pass away, although she did not know exactly what level of benefits she could expect if he passed away before her. She did not know how much he would get upon his retirement. They expected him to have a long life with retirement benefits, and she supported his decision to retire since he was unhappy with work. He had wanted her to consider retiring as well but she did not want to. (Exs. 4 & 9. Testimony)

10. The Elsmores' neighbor, Susan Millette, recalls during the time period, 2002-2003 that Mr. Elsmore was considering whether or not to retire. She recalls he mentioned at such times that he would need to take care of his wife. He told her he needed to reach ten years of service to gain a retirement. She knew he was in his late sixties around this time period. She was not at all involved in any discussions with him or with Mary Elsmore about the terms of his retirement or concerning what option he would select. She did not review his retirement documents. She became aware he eventually retired. (Testimony)

11. Mrs. Elsmore was with her husband when he filed his option election form with the Taunton Retirement Board. She recalls that he had a conversation with a staff person but could not hear what was said other than a comment that his wife would be taken care of made by the staff person. Her husband did not tell her what the talk was about. It lasted only a few minutes. She recalls that he had made prior visits to the Board offices, but not with her. This event occurred before his effective date of retirement. (Ex. 4. Testimony)

12. Mr. Elsmore's retirement was effective July 25, 2003. It was approved by the Public Employee Retirement Administration Commission (PERAC) on August 12, 2003 as an Option A superannuation retirement that provided him with an annual allowance of $9,813.72. (Ex. 6)

13. Neither Mr. Elsmore nor Mrs. Elsmore tried to change the option election following his retirement. (Testmony)

14. In and around December 2003, Mr. Elsmore learned he had an illness. He passed away on April 8, 2004. (Ex. 7. Testimony)

15. Thereafter, the Taunton Retirement Board wrote to Mrs. Elsmore on April 12, 2004 to express their sympathy on Mr. Elsmore passing and to provide her with the status of Mr. Elsmore's retirement allowance. The Board explained:

Please be advised that Edward retired … on 7/25/03. He chose Option A. Under the terms of Option A, there are no further retirement benefits payable. Please contact the City Treasurer's office … to discuss any health or life insurance benefits. (Ex. 8)

16. Thereafter, and surprised that the retirement benefits would now stop, Mrs. Elsmore sought to have the retirement allowance continue as that was what she understood her husband had wanted to happen; that she would continue to receive some retirement benefit if he passed away. (Exs. 1 & 3. Testimony)

17. The Taunton Retirement Board wrote to Mrs. Elsmore to again explain to her that due to her husband's selection of Option A, she would not receive any retirement benefits following his death. She was provided with her appeal rights and timely appealed. (Exs. 1 & 2)

Conclusion

The terms of Option A are set forth at G.L.c.32, §12(2)(a)(i), (ii) & (iii), and provide an annuity and pension, but not any benefits for a beneficiary, even for a spouse, after the retiree's death. The information concerning this Option and how it works is set forth on the option election form. Included is the statement that the retiree signs his agreement with acknowledges how no beneficiary will be collecting future retirement benefits of any kind upon the death of the retiree. Mr. Elsmore signed this on April 7, 2003. He also had, according to Mrs. Elsmore, discussions with the staff of the Taunton Retirement Board before his effective date of retirement. She does not know what the talks were about, but I conclude that there is no evidence to show any staff at the Taunton Retirement Board misled or provided Mr. Elsmore with wrong information about how the Options A, B and C operated.

At the time Mr. Elsmore was completing his retirement forms, and including through the time of his retirement, he had no idea he was ill and would be facing death within a year's time to make an election of Option A suspect. The amount of the retirement allowance under Option A was also not all that large at $9,155.16 per year. This makes it more understandable why Mr. Elsmore may have changed to it over Option C which would only have been $6,341.76 per year. (See, Ex. 4) If Mrs. Elsmore was not making much of a salary in her job, then having a big enough retirement allowance to help them survive financially, would seem reasonable under the circumstances he faced at the time he made his option election. There is no evidence that shows Mr. Elsmore was mentally incompetent or physically unable to make an election at the time he decided to select Option A. G.L.c.32, §17 is not applicable to his election.

What is apparent from the record is that Mrs. Elsmore was not aware of the implications of her husband's selection of Option A. Rather, her credible testimony is that she was not given sufficient information by her husband to appreciate what his selection of Option A would mean for her future financially if he passed away before too long. When she signed the "Spousal Acknowledgement" at page 3 of the option election form, it is clear she was going to sign it regardless of whether or not she understood what she was agreeing to. She did appear at the Taunton Retirement Board with her husband at and around the time she signed the forms on April 24, 2003, but no evidence shows she was affirmatively misled or tricked by anyone at the Taunton Retirement Board offices into signing the "Spousal Acknowledgement" form with no appreciation that she was agreeing to Option A. She had no idea about the type of retirement or about the amount of retirement Mr. Elsmore would be receiving, and this lack of full knowledge is something that does not involve the Taunton Retirement Board. Perhaps Mr. Elsmore surmised that since his wife wanted to continue working, that she would eventually secure with all her years of service, despite a low salary, a pretty good retirement allowance once he passed away. The record simply does not help us explain Mr. Elsmore's reasoning for selecting Option A and wanting his wife to agree to that election.

This election turned out to be a mistake for the Elsmores due to Mr. Elsmore's untimely illness and death. Unfortunately, there is no ability to overturn Mr. Elsmore's knowing option election after retirement., See, Latsey v. State Board of Retirement, CR-00-723 (DALA, 1/19/01) (CRAB affirms, 7/6/01); Taylor v. State Board of Retirement, CR-00-599 (DALA,10/2/00) (CRAB affirms, 4/3/01); and, Byrne v. Malden Retirement Board, CR-96-766 (DALA, 7/29/97) (CRAB affirms, 5/6/98).

For these reasons, the decision of the Respondent Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate


DATED: June 27, 2006


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