COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Linda Johnson,

Petitioner

v. Docket No. CR-07-205

State Board of Retirement,

Respondent

Appearance for Petitioner:

Linda Johnson, pro se

91 Myrtle Street
Hanover, MA 02339

Appearance for Respondent:

Emily J. Robbins, Esq.

State Board of Retirement
One Ashburton Place, 12th floor
Boston, MA 02108

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Linda Johnson filed a timely appeal under G. L. c. 32, s. 16 (4) of the February 26, 2007 decision of the State Board of Retirement to deny her request to purchase credit for her 03 service under the provisions of G. L. c. 32, s. 4 (1) (s). (Exs. 1, 2)

I held a hearing on March 18, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 13) I marked the Board's pre-hearing memorandum "A" for identification. The Petitioner testified. There is one tape cassette of the hearing.

FINDINGS OF FACT

1. Linda Johnson, d.o.b. 5/30/1949, has been a member in service of the State Employees' Retirement System since 1994.

2. Ms. Johnson worked as a switchboard operator at South Shore Mental Health Center from March 2, 1979 to June 30, 1983 when she was laid off. (Exs. 5, 7)

3. Ms. Johnson believes her work at South Shore Mental Health Center was in an 03 contract position with the Department of Mental Health ("DMH"). (Testimony)

4. In 1992 Ms. Johnson began working part-time for the DMH as a switchboard operator at Quincy Mental Health Center for 16 hours a week. (Testimony)

5. In 1994 Ms. Johnson's position at Quincy Mental Health Center became full time, and she established membership in the State Employees' Retirement System. (Testimony)

6. In or about July 2005 Ms. Johnson submitted a Request for Verification of 03 or 07 Service to the DMH. By memo of October 12, 2005, DMH denied her request "based on the fact that the forms were returned from the vendor incomplete and did not indicate whether you were under the direct control of the commonwealth or the vendor. To be considered for 03/07 credit, you must have been under the direct control of a Commonwealth employee." (Ex. 8)

7. On or about October 12, 2006 Ms. Johnson requested that the State Board allow her to purchase credit for her 03 service to the DMH from March 1979 to June 30, 1983 under the provisions of G. L. c. 32, s. 4 (1) (s). (Ex. 9)

8. Page 2 of the Contract Service Buyback Form submitted by Ms. Johnson, which is to be completed by the agency that employed her, was left blank. (Ex. 9)

9. By notice of January 30, 2007 the Board denied Ms. Johnson's request because "[y]our contract service did not immediately precede membership in the State Employees' Retirement System," citing G. L. c. 32, s. 4 (1) (s). (Ex. 4)

10. By letter of February 5, 2007 Ms. Johnson requested that the Board review its decision. (Ex. 3)

11. By letter of February 26, 2007 the Board denied Ms. Johnson's request to purchase contract service because "in order for a member to be eligible to purchase qualifying contract service the period of time between the end of the contract service and commencement of membership service must be less than 180 days. According to Board records, you did not establish membership until April 1994." (Ex. 1) Ms. Johnson appealed. (Ex. 2)

12. Under the Board's written policy with respect to the provisions of G. L. c. 32, s. 4 (1) (s), adopted on March 29, 2007, the "contract employee service being purchased must have immediately preceded membership or re-entry into SERS. For purposes of this policy, 'immediately preceded' shall mean within 180 calendar days." (Ex. 13)

CONCLUSION AND ORDER

The decision of the State Board of Retirement to deny the request of Linda Johnson to purchase credit for her work at South Shore Mental Health Center from March 2, 1979 to June 30, 1983 is affirmed.

The Petitioner's request is denied for two reasons: 1) it has not been demonstrated that the service provided to South Shore Mental Health Center was, in fact, service to the Department of Mental Health on an 03 contract; and 2) even if the service were shown to be 03 contract service, the service did not "immediately precede" the Petitioner's membership in the retirement system.

G. L. c. 32, s. 4 (1) (s), effective October 17, 2006, provides in pertinent part:

Any member in service of the state employees' retirement system who, immediately preceding the establishment of membership in that system or re-entry into active service in that system, was compensated for service to the commonwealth as a contract employee for any department, agency, board or commission of the commonwealth may establish as creditable service up to 4 years of that service if the member has 10 years of service with the state employee's retirement system, and if the job description of the member … is substantially similar to the job description of the position for which the member was compensated as a contract employee. (emphasis supplied)

There is no evidence in the record to support the notion that the Petitioner's service to the South Shore Mental Health Center was service rendered to the Department of Mental Health on an 03 contract. The DMH was not able to verify in 2005 that the Petitioner worked on an 03 contract because the forms returned by the vendor were incomplete. The Contract Service Buyback Form submitted by the Petitioner in October 2006 did not include any information from the DMH indicating that the Petitioner worked on an 03 contract.

Even if the Petitioner had demonstrated that her work was performed pursuant to an 03 contract, the Petitioner's request to purchase credit for this service would be denied because the contract service did not "immediately precede" the Petitioner's establishment of membership in the State Employees' Retirement System. The Petitioner last worked for South Shore Mental Health Center in 1983. She did not establish membership in the system until 1994.

Even in the absence of the Board's reasonable policy to interpret "immediately preceding" to mean 180 days, a gap of eleven years can in no way be interpreted as "immediately preceding" membership, within the meaning of G. L. c. 32, s. 4 (1) (s). The decision of the State Board of Retirement to deny the Petitioner's request to purchase credit for 03 contract service under G. L. c. 32, s.4 (1) (s) is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 4/4/08


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