COMMONWEALTH OF MASSACHUSETTS
CONTRIBUTORY RETIREMENT APPEAL BOARD

LOURDES MORALES,

Petitioner

v. CR-04-0529

STATE BOARD OF RETIREMENT,

Respondent.

DECISION ON REMAND

Petitioner Lourdes Morales seeks to change the retirement allowance option chosen by her late husband Leonel Gongora from Option A to Option C. When Professor Gongora submitted his application for retirement from the University of Masssachusetts, he gave an address for himself in Massachusetts and an address for his wife in Colombia. 1 An attached notation by a member of the Division of Human Resources at the university noted the wife's Columbia address. 2 That same day, Professor Gongora executed a retirement option selection form, choosing Option A. 3 Although the form states that it must be witnessed and that, if the member is married, the witness must be the spouse, it actually was witnessed by the same university employee. 4 Shortly thereafter, respondent State Board of Retirement (State board) sent Morales written notice of her husband's retirement option election. 5 For unexplained reasons, the State board sent the letter to Morales at her husband's address in Massachusetts, not her own address in Colombia. 6 Morales did not learn of her husband's retirement option election until after his death, when she found the State board notice to her among his papers in a locked cabinet. 7

Professor Gongora died on June 26, 1999, leaving his wife and two children, aged ten and thirteen. 8 On August 6, 1999, Morales's then attorney informed the State board of her prior ignorance of Professor Gongora's retirement option election and asked the State board to "reopen this case and recomputed Professor Gongora's benefits as if he had chosen option C[.]" 9 The record does not indicate any response by the State board to this request.

On June 1, 2004, Morales wrote the State board, seeking to appeal Professor Gongora's selection of retirement option A. 10 On June 28, 2004, the State board gave notice to Morales of its vote to deny her "request to change your retirement allowance option." 11 By letter dated July 13, 2004, Morales appealed. 12

On November 11, 2005, the Division of Administrative Law Appeals (DALA) affirmed the decision of the State board. At that time, the controversy appears to have concerned the State board's compliance, or not, with the requirement in G. L. c. 32, § 12(1) that, because Professor Gongora's election was not accompanied by Morales's signature, notice had to be given her "by registered mail[.]" 13 Holding that "[t]he statute does not require that a spouse actually receive notification," and finding that Morales had failed to prove that the State board did not send the notice by registered mail, DALA affirmed the decision of the State board. On appeal to us, "[w]e affirm[ed] the Magistrate's Conclusion and Order for the reasons set forth in her Decision." 14

Morales appealed our decision to the Superior Court. While that case was pending, counsel to the State board discovered Professor Gongora's retirement application and the attached note indicating Morales's then residence in Colombia. 15 By agreement of the parties, the Superior Court remanded the case to DALA "for further consideration of the new evidence which has come to the attention of the parties." 16 On remand, the same DALA magistrate who made the original decision received additional evidence, made additional findings of fact, and again ruled in favor of the State board.

The second DALA decision is incorporated by reference and its Findings 1-18 are adopted as our own. For the following reasons, we now reverse the decision of the State board.

As in effect at the time Professor Gongora submitted his option election form, G. L. c. 30A, § 12(1), required that "[e]lection of an option shall be made by such member in writing on a prescribed form filed with the board[.]" 17 The election form used in this case required that it be witnessed by Morales as Professor Gongora's spouse:

SIGNATURE OF WITNESS - THIS OPTION FORM MUST BE WITNESSED. IF MEMBER IS MARRIED, THE WITNESS MUST BE THE SPOUSE. 18

This provision presumably was included in the form because a State board regulation required that "[t]he retirement option of a married member shall be witnessed by the member's spouse" and went on to provide that, "[i]f the option form is not so witnessed, the spouse shall be notified of the member's option." 19

We construe the requirement that the election be made "on a prescribed form" to mean that the form must be properly completed, at least in substance. To read § 12(1) otherwise would render the "prescribed form" requirement meaningless.

Here, the form was not witnessed by Professor Gongora's spouse. Instead, it was witnessed by another university employee. Hence the form was not properly completed and Professor Gongora's election was not made on a prescribed form. It follows that this case is governed by the last sentence of (what is now) the first paragraph of § 12(1), which provides: "If no election of an option is made or if none is in effect as provided for in this section, the retirement allowance of such member shall be paid in accordance with the terms of option (b) of subdivision (2) of this section."

Assuming arguendo that the failure to have Professor Gongora's option election form witnessed by Morales could be cured by providing notice to Morales, 20 notice was not effectively given. In so ruling, we disagree with the conclusion of the DALA magistrate that the State board "complied with its regulation by mailing a letter to [Morales] at her permanent, Pelham [Massachusetts] address." 21

Our conclusion is consistent with the principle, recently emphasized by the United States Supreme Court, "that 'when notice is a person's due . . . [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it[.]'" 22 Here, the State board knew, or reasonably should have known, from Professor Gongora's retirement application, and the witnessing university employee's attached notation, that Morales was then living outside the United States and was not expected to return to Pelham, Massachusetts, until after the requested retirement date. 23 Despite that knowledge, the State board sent the notice to the Pelham, Massachusetts, address, where it was bound to be received by Professor Gongora, not by Morales. This is not the kind of notice that would have been given by an agency actually interested in successfully informing Morales.

The decision of the State board is reversed. No election had been made or was in effect as provided by G. L. c. 32, § 12(1), at the time of Professor Gongora's death. For that reason, however, we are unable to grant Morales the relief she seeks, namely, the opportunity to make an election under Option C. The statute expressly provides that, in circumstances such as these, "the retirement allowance . . . shall be paid in accordance with the terms of option (b)[.]"


SO ORDERED.
CONTRIBUTORY RETIREMENT APPEAL BOARD

/s/
Joseph I. Martin
Public Employee Retirement Administration Commission Appointee


Vacant
Governor's Appointee

/s/
David A. Guberman
Assistant Attorney General
Chairman
Attorney General's Appointee

Date: December 23, 2008

  1. DALA Ex. 11.
  2. DALA Finding 6; DALA Ex. 11.
  3. DALA Finding 7; DALA Ex. 3.
  4. Id.
  5. DALA Finding 9.
  6. Id.; DALA Ex. 4.
  7. DALA Finding 14.
  8. DALA Finding 13.
  9. DALA Finding 15; DALA Ex. 5.
  10. DALA Finding 16; DALA Ex. 9.
  11. DALA Finding 17; DALA Ex. 1.
  12. DALA Finding 17; DALA Ex. 2.
  13. Morales v. State Bd. of Ret., CR-04-0529 (DALA, Nov. 8, 2005), at 4. This provision, however, was not part of the statute at the time Professor Gongora retired.
  14. Morales v. State Bd. of Ret., CR-04-0529 (CRAB, March 6, 2006).
  15. See Petitioner's Claim of Appeal at 1.
  16. Morales v. Contributory Ret. Appeal Bd., Hampshire Superior Court, No. HSCV2006-00073 (March 13, 2007).
  17. Emphasis added.
  18. DALA Ex. 6 (bolding, capitalization, and underlining in original).
  19. 941 Code Mass. Regs. § 2.05.
  20. See 941 Code Mass. Regs. § 2.05 (requiring notice to a spouse who has not witnessed the member's retirement option).
  21. DALA Decision at 8.
  22. Jones v. Flowers, 547 U.S. 220, 229 (2006) (ellipses and first brackets by the court) (tax taking), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) (settlement of accounts of common trust fund).
  23. DALA Ex. 11.


This information is provided by the Division of Administrative Law Appeals.