COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals


Sarah E. Hague,

Petitioner

v. Docket No. CR-06-694

Teachers' Retirement System,

Respondent

Attorney for Petitioner:

Bruce N. Hague, Esquire

Hague, Sahady & Co., P.C.
126 President Avenue
Fall River, MA 02720

Attorney for Respondent:

James C. O'Leary, Esquire

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

Administrative Magistrate:

Judithann Burke

CASE SUMMARY

The Teachers' Retirement System correctly calculated the Petitioner's retirement date. The Petitioner's last day of service as a teacher in Fall River was June 30, 2006. The Teachers' Retirement System did not receive her retirement application until September 11, 2006. Accordingly, her correct date of retirement is September 26, 2006 and not July 1, 2006.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Sarah E. Hague, is appealing from the October 11, 2006 action of the Respondent, Teachers Retirement System (TRS), establishing her effective date of retirement as September 26, 2006. (Exhibit 1). The appeal was timely filed. (Exhibit 2). A hearing was held on October 27, 2009 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA.

At the hearing, eight (8) documents were marked as exhibits. The Petitioner testified in her own behalf. Both parties stated their arguments for the record. One (1) tape was made of the proceedings.


FINDINGS OF FACT

Based upon the testimonial and documentary evidence submitted at the hearing in the above-entitled mater, I hereby render the following findings of fact:

1. The Petitioner, Sarah E. Hughes, was a teacher in Fall River and a member of the Teachers' Retirement System from May 1972 until her retirement on September 26, 2006. (Exhibits 1, 6 & 7).

2. The Petitioner prepared her retirement application in June 2006, intending to retire with an effective date at the end of the school year, July 1, 2006. (Exhibit 6).
3. The Instructions on the front page of the retirement application provide:
4) FILE your application in a timely manner. We recommend that you file your application three to four months before your date of retirement, and no earlier than four months in advance. Please note that if you file your application more than 60 days after your date of separation from service, your retirement date will NOT be retroactive to your resignation date. In this case, the earliest effective
date of retirement you may use will be 15 days after the date we receive your signed application.(Exhibits 1 and 6).


4. The Petitioner received salary information from her Human Resources Department in connection with her retirement application that appeared incorrect. The document that denoted her salary reflected that she had been paid at the rate of M+45 for the final years of her employment. The Petitioner believed that her academic qualifications entitled her to be paid at the higher M+60 rate. (Exhibits 3, 4 and 7).

5. The Petitioner wrote to the payroll office of the Fall River School Department and asked that the matter of her pay grade be investigated. She followed up by phone several times over the summer of 2006 and requested that the salary information be corrected. (Exhibits 3 and 6).

6. In August 2006, the Petitioner contacted a staff member of the TRS to discuss the delay in her returning her application. She was instructed to forward her application materials to the TRS right away, and, that the salary would be retroactively adjusted if and when the higher pay scale was confirmed by the employer. (Testimony).

7. On September 7, 2006, the Petitioner wrote to the TRS and explained her situation. (Exhibit 4).

8. The Petitioner's retirement application was received by the TRS on September 11, 2006. (Exhibit 6).

9. In a letter dated October 4, 2006 to the TRS, the Petitioner blamed the late filing of her retirement application on the extended period of time that she waited for the correct salary information. She noted in the letter that she had been told by friends that she should not wait any longer to file the application. She also indicated that she suffered from clinical depression, anxiety, severe hypertension and other ailments. (Exhibit 2).

10. In a letter dated October 11, 2006, the TRS notified the Petitioner that her retirement date was September 26, 2006, fifteen days after the date it was filed. (Exhibit 1).

11. The Petitioner filed a timely appeal.

12. On October 8, 2009, John Kerston, M.D. of Southern New England Physician's Associates reported "To Whom It May Concern":
Mrs. Hague has been a patient under my care since February 2006,
for the treatment of Dissociate Disorder and of Depression. While
suffers (sic) from symptoms of these disorders. She had neglected to
act on a deadline regarding her pension, resulting in a significant
financial loss. I am writing this letter to confirm the fact that she
has been in treatment with me and that her psychiatric condition
had a direct bearing on this important omission.(Exhibit 8).


CONCLUSION

The Petitioner is not entitled to prevail in this appeal. G.L.c. 32 § 10(3) provides, and the title page of the TRS Retirement application reiterates, that:
The retirement application of any member entitled thereto…shall
become effective on the date of his termination from service if his
written application therefore is filed with the board not more
than sixty days after such date; otherwise his retirement allowance
shall be deferred. Any such member that, at anytime thereafter and before attaining the maximum age for his group, files with the board his written application for such retirement allowance, and thereupon such
retirement allowance shall become effective on the date which shall be specified in the application and shall not be less than fifteen days nor
more than four months after the filing of such application …
(Emphasis added.)

The Petitioner did not file her application until September 11, 2006. The TRS approved the application with the statutorily correct effective date of September 26, 2006, or fifteen days after submission.

The Petitioner seeks relief from the 60-day deadline on the grounds that: the efforts of the Fall River School Department Human Resources personnel to correct her salary information were dilatory, and, she was led by them to believe that the mistake would be remedied in time; and, she suffered from severe depression and dissociative disorder during the summer of 2006. The Petitioner contends that these mental conditions impaired her abilities to organize her thoughts and put the paperwork together in a timely manner. Neither of these proffered grounds for the delay effects the Decision.

The Petitioner received and read the Retirement Application. The instructions for timely filing were displayed on the first page. The school system's dilatory processing of the salary information was a snag in the process; however the information for which she waited was not essential to the initial filing of the application. The behavior of the Fall River School Department's personnel office was not a failure of the retirement system for which the system must assume responsibility. Contra, Hembrow v. State Board of Retirement, CR-1229 (DALA 1978). The Petitioner not only had the filing information on the face of the application, but she was also in contact with the employer and the TRS late into August. After being urged in August to get the application filed, she still waited until after the first full week of September 2006 to file it. This is not a situation where the employer or the TRS affirmatively misled, or failed to inform, the employee of her retirement rights and responsibilities. See Timothy Riley v. Contributory Retirement Appeal Bd. and Mass. Teachers' Ret. Sys., Civil Action No. 04-2267 (Billings, J.,). Instead, the Petitioner's own behavior was dilatory.
The Petitioner's claim of psychiatric incapacity also does not change the outcome. She was able to make the decision to file for retirement, able to complete the application, able to recognize that the salary information was not correct, and, able to contact the Director of Personnel so that the salary information could be altered in her favor. She was also able to make regular contact with Fall River Human Resources personnel in order to follow up on the progress of the change. There is no medical or non-medical evidence in the record that, despite her serious emotional illness, she was unable to comprehend the significance and consequences of her retirement decision. Cf. Nancy Sneider v. Teachers' Retirement Board, CR-02-593, p.6 (DALA 2003) (CRAB 2004), citing Farnham v. Solvano, 27 Mass. App. 536 (1989).

Even if relevant, which it is not under the statute, Dr. Kerston's letter carries little weight. It was submitted without any contemporaneous medical documentation of the Petitioner's alleged incapacity to function during the critical time period, and, it also addresses an ultimate issue in this appeal without foundation. Further, Dr. Kerston's opinion is belied by his failure to suggest the appointment of a legal guardian or other counsel to assist the Petitioner with significant financial decisions or other major decisions in her life in 2006. It should also be noted here that the Petitioner's husband, an attorney, did not see the need in 2006 to assume any leadership or control over her retirement application process. Sneider, supra, at 6. Accordingly, the Petitioner has not proven mental incompetency.

Based on the foregoing, the TRB's decision establishing the Petitioner's retirement date as September 26, 2006 is affirmed.
So ordered.
Division of Administrative Law Appeals,
BY:

Judithann Burke
Administrative Magistrate

DATED: December 4 ,2009