COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

David Gagnon,


Petitioner Docket No. CR-06-658

v.

Easthampton Retirement Board and Public Employee Retirement Administration Commission,


Respondents

Appearance for Petitioner:

Devin Moriarty, Esq.

Moriarty and Connor, LLC
101 State Street, Suite 501
Springfield, Massachusetts 01103

Appearance for Respondent,

Michael Sacco, Esq.

Easthampton Retirement Board: 285 College Highway
P.O. Box 479
Southampton, Massachusetts 01073-0479

Appearance for Respondent, Public Employee Retirement Public Employee Retirement Admin. Commission,

Derek Moitoso, Esq.

Administration Commission: 5 Middlesex Avenue, Suite 304
Somerville, Massachusetts 02145

Administrative Magistrate:

Natalie S. Monroe, Esq.

DECISION

On July 17, 2006, the Public Employee Retirement Administration Commission ("PERAC") denied petitioner David Gagnon's request to purchase creditable service for his military service under G.L. c. 32, § 4(1)(h). Mr. Gagnon timely appealed the decision pursuant to G.L. c. 32, § 16(4).

Pursuant to 801 CMR 1.01(10)(c), the parties agreed to waive a hearing and submit the case on written submissions. On October 10, 2007, the parties filed a set of agreed-upon exhibits. On November 20, 2007, the Easthampton Retirement Board (the "Board") filed a memorandum of law, which has been marked as Exhibit A for identification, as well as two additional exhibits. On November 21, 2007, the petitioner filed a memorandum of law, which has been marked as Exhibit B for identification. PERAC did not file a memorandum of law. On January 15, 2008, the Board submitted two exhibits that inadvertently had been omitted from the parties' earlier filings. The following documents are in evidence:

Exhibit 1: Letter from PERAC to the Board, dated July 17, 2006

Exhibit 2: Petitioner's appeal, dated August 17, 2006

Exhibit 3: Petitioner's New Entrant Enrollment Blank, dated August 8, 1988, with attached birth certificate

Exhibit 4: Petitioner's Application for Voluntary Superannuation Retirement, dated March 27, 2006

Exhibit 5: Petitioner's Honorable Discharge from the U.S. Air Force, effective July 16, 1971

Exhibit 6: Letter from the Board to the petitioner, dated May 1, 2006, with attachments

Exhibit 7: Town of Easthampton Personnel Action Form, dated May 20, 2004
Exhibit 8: Letter from the Board's counsel, Michael Sacco, Esq., to PERAC, dated July 20, 2006

Exhibit 9: Letter from the Board's counsel, Michael Sacco, Esq., to the petitioner, dated August 10, 2006

Exhibit 10: Letter from the Board's counsel, Michael Sacco, Esq., to the petitioner, dated September 18, 2006

Exhibit 11: Letter from the petitioner's counsel, Devin Moriarty, Esq. to the Board's counsel, Michael Sacco, Esq., dated September 28, 2006

Exhibit 12: Letter from the Board's counsel, Michael Sacco, Esq., to the petitioner's counsel, Devin Moriarty, Esq., dated October 2, 2006

Exhibit 13: Letter from the petitioner to the Board's counsel, Michael Sacco, Esq., dated October 3, 2006, with attachment

Exhibit 14: Letter from PERAC to the Board's counsel, Michael Sacco, Esq., dated November 3, 2006

Exhibit 15: Letter from the Board to the petitioner, dated December 1, 2006

Exhibit 16: Letter from the Board to PERAC, dated December 5, 2006, with attachments

Exhibit 17: Letter from PERAC to the Board, dated December 11, 2006, with attachments

Exhibit 18: Petitioner's Calculation Sheet for Option (A) or (B), dated December 31, 2006

Exhibit 19: Letter from the Chicopee Contributory Retirement System to the Board, dated February 6, 2007

Exhibit 20: Letter from PERAC to the Board, dated February 13, 2007

Exhibit 21: Letter from the Board to the petitioner, dated January 26, 2001

Exhibit 22: Petitioner's Application for Veteran's Benefits, dated May 31, 2001

Exhibit 23: Letter from the Board to "Whom It May Concern," dated September 11, 2007

Findings of Fact

Based on the evidence presented, I make the following findings of fact:

1. David Gagnon, whose date of birth is July 1, 1950, served in the U.S. Air Force from March 31, 1969 to July 16, 1971, when he was honorably discharged. (Exhibit 5).

2. On August 8, 1988, Mr. Gagnon became a member of the Town of Easthampton Retirement System (the "Easthampton System"). (Exhibit 3; Exhibit A, Stipulation of Fact No. 1).

3. On January 26, 2001, Mr. Gagnon received a letter from Barbara Weeks, the Retirement Administrator for the Town of Easthampton. The letter stated that the Town Council had voted to accept Chapter 71 of the Acts of 1996, which allowed veterans to purchase creditable service for their military service. (Exhibit 21).

4. The letter from Ms. Weeks also stated that the deadline to file an application to purchase creditable service for military duty was July 24, 2001. (Exhibit 21).

5. On May 31, 2001, Mr. Gagnon returned his application to purchase creditable service for his military duty. Mr. Gagnon attached to his application a copy of his honorable discharge from the U.S. Air Force. (Exhibit 22).

6. The application to purchase creditable service stated, in part:
Note: Once your eligibility has been verified, you will receive written notification of:

1. The years and months of service you may purchase (not to exceed four years).
2. The amount owed and payment options.

(Exhibit 22).

7. On May 11, 2004, Mr. Gagnon resigned from his job with the Town of Easthampton. (Exhibit A, Stipulation of Fact No. 1; Exhibit 7).

8. On March 23, 2006, Mr. Gagnon filed with the Easthampton System an application for superannuation retirement, to be effective on July 1, 2006. (Exhibit 4).

9. On May 1, 2006, Mr. Gagnon purchased from the Easthampton System two years and three months of creditable service related to his service in the U.S. Air Force. (Exhibit A, Stipulation of Fact No. 2; Exhibit 6).

10. On July 17, 2006, PERAC notified the Board that Mr. Gagnon could not purchase creditable service for his time in the military because he stopped working for the Town of Easthampton in 2004 and therefore was not a "member in service" pursuant to M.G.L. c. 32, § 4, when he attempted to purchase his military service. (Exhibit 1).

11. On August 10, 2006, the Board notified Mr. Gagnon of PERAC's decision. (Exhibit 9).

12. On August 17, 2006, Mr. Gagnon appealed PERAC's decision. (Exhibit 2).

Conclusion

After reviewing the evidence presented in this case, I affirm PERAC's decision denying Mr. Gagnon's request to purchase creditable service for his military service pursuant to G.L. c. 32, § 4(1)(h). Section 4(1)(h) of Chapter 32 of the Massachusetts General Laws ("Chapter 32") states, in pertinent part:
Notwithstanding the provisions of this chapter or any other general or special law, rule or regulation to the contrary, a member in service of a retirement system as defined in section one who is a veteran who served in the armed forces of the United States shall be entitled to credit for active service in the armed services of the United States; provided, however, that such active service shall not be credited until such member has paid into the annuity savings fund of such system….

G.L. c. 32, § 4(1)(h) (emphasis added). The phrase "such member" in this provision is a reference to "member in service" earlier in the paragraph. Thus, a member of a retirement system may obtain creditable service for past military duty if, among other things, he purchases the service while he is a "member in service."

Chapter 32 defines a "member in service" as:

[a]ny member who is regularly employed in the performance of his duties, except a member retired for disability who upon partial recovery is restored to active service as provided for in paragraph (2) (a) of section eight….

G.L. c. 32, § 3. Mr. Gagnon voluntarily terminated his employment with the Town of Easthampton on May 11, 2004. Consequently, when Mr. Gagnon tried to purchase creditable service in May of 2006, he no longer was "regularly employed in the performance of his duties" for the Town. Id. He therefore was not a "member in service." Id. Rather, in May of 2006, Mr. Gagnon was a "member inactive," which is defined as follows:

[a]ny member in service who has been retired and who is receiving a retirement allowance, any member in service whose employment has been terminated and who may be entitled to any present or potential retirement allowance or to a return of his accumulated total deductions under the provisions of sections one to twenty-eight inclusive, or any member in service who is on an authorized leave of absence without pay other than as provided for in clause (i) of this paragraph.

Id. (emphasis added).

Mr. Gagnon admits that he did not purchase his military service while he was a "member in service." He nevertheless argues that because he sought to buy his military service while he was still working for the Town, he should be allowed to finalize that purchase now. In the decisions that Mr. Gagnon relies upon, however, the retirement board gave the member incorrect information, failed to process the member's application, or made some other error that prevented the member from purchasing the creditable service in a timely fashion. See, e.g., Ronald Cunha v. Gloucester Retirement Board, CR-06-151 (DALA 2/16/07; no CRAB dec.); McCarthy v. Boston Retirement Board, CR-06-287 (DALA 4/27/07; no CRAB dec.). There is no evidence that the Board misled or misinformed Mr. Gagnon with respect to purchasing his military service. While Mr. Gagnon's counsel asserts that (1) the Board failed to follow up on Mr. Gagnon's May 2001 application to purchase his military service; and (2) before he resigned in May 2004, the Board's Retirement Administrator told him that he still could accomplish the purchase. In this regard, I give no weight to the letter from the Board's clerk stating that Mr. Gagnon "consulted with the previous Retirement Administrator, Heather Schrauben, regarding his retirement options prior to his resignation." Exhibit 23. The letter is not from Ms. Schrauben and therefore is not reliable. See Exhibit 23. I also note that the letter does not state that Mr. Schrauben told Mr. Gagnon that he could still purchase his military service.

For the foregoing reasons, PERAC's decision denying Mr. Gagnon's request to purchase creditable service for his military service pursuant to G.L. c. 32, § 4(1)(h) is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Natalie S. Monroe
Administrative Magistrate

Date: February 29, 2008


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