COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Mary Lou Resendes,

Petitioner

v. CR-06-621

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Mary Lou Resendes

136 Douglas Drive
Lincoln, CA 95648

Appearance for Respondent:

James Salvie, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142


Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Mary Lou Resendes, is appealing the April 3, 2006 decision of the Respondent, Teachers' Retirement System (TRS), denying her request to return the refund that she took from the TRS in 1999 and to have her creditable service reinstated (Exhibit 4). The Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board.

Pursuant to the provisions of 801 CMR 1.01 (10) (c), the parties agreed to submit the case on written submissions and to waive a hearing. On April 8, 2008, the Respondent submitted a written argument and proposed exhibits. On May 4, 2008, the Petitioner submitted a written argument and proposed exhibits. The record was closed on May 4, 2008.

The following exhibits were marked into evidence:

1. 1/16/06 letter from Petitioner to TRS
2. 3/1/99 Refund records of TRS for the Petitioner
3. 3/25/99 Direct Rollover Authorization
4. 4/3/06 Letter from TRS to the Petitioner
5. 9/10/06 Letter from Petitioner to Division of Administrative Law Appeals
6. 5/22/77 award of B.A. degree from University of Lowell
7. 5/20/89 award of M.A. degree from Lesley College
8. 8/11/77 appointment to position as teacher with the Lowell Schools
9. 7/27/88 resignation by Petitioner from position with Lowell Schools
10. Series of requests for leaves of absences from the Lowell Schools
11. Petitioner's membership in the TRS

FINDINGS OF FACT

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

1. The Petitioner, Mary Lou Resendes, a 1977 graduate of the University of Lowell, commenced employment as a teacher in the Lowell, MA Public School System in September of 1977 (Exhibits 6 & 8).

2. She became a member of the Teachers' Retirement System at that time (Exhibit 11).

3. During her tenure with the Lowell, MA Public School System, the Petitioner took several leaves of absences (Exhibit 10).

4. Effective July 27, 1998, the Petitioner resigned her position in the Lowell Public School System (Exhibit 9).

5. She subsequently moved to California (Exhibit 2).

6. The Petitioner requested and received a refund of her annuity savings account in 1999. She received the after tax portion of her account of $11,775.08 at her address in California, and rolled her remaining pre-tax contributions and interest over to an IRA with Vanguard Fiduciary Trust in the amount of $37,790.70 (Exhibit 2).

7. From 1999 up to and including the present date, the Petitioner has not returned to service in Massachusetts (stipulation of the parties).

8. On January 16, 2006, the Petitioner requested that her refund be paid back to Massachusetts and further that her creditable service in Massachusetts reinstated without her returning to service in Massachusetts (Exhibit 1).

9. On April 3, 2006, the TRS informed the Petitioner that in accordance with G.L. c. 32, she is not entitled to repayment of a refund unless she returns to service in a position subject to membership in the TRS or one of the other Massachusetts public retirement systems (Exhibit 4).

10. The Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (stipulation of the parties).

CONCLUSION

G.L. c. 32 §3(6)(c) provides in pertinent part that:

Any former member who is reinstated to or who re-enters the active service of the governmental unit in which he was formerly employed to serve in a position which is subject to the provisions of this chapter, within two years from the date of his separation therefrom, again become a member in service and may pay into the annuity savings fund of the system in one make-up sum, or installments, upon such terms and conditions as the board may prescribe, an amount equal to the accumulated regular deduction withdrawn by him, together with the regular interest to the date of reemployment…Upon making such make-up payment such member shall be entitled to all creditable service resulting from such previous employment.

G.L. c. 32 §3(6)(c) provides that only a former member who is reinstated to active service in the governmental unit where she was formerly employed or who re-enters the active service of a governmental unit subject to the provisions of G.L. c. 32 may redeposit a refund and then have her creditable service reinstated. In this case, there is no dispute that the Petitioner did not return to service in the Commonwealth of Massachusetts subsequent to receiving her requested refund of her retirement contributions and interest in 1999. Thus, in accordance with the provisions of the statute, the Petitioner is not entitled to have her refund paid back to Massachusetts and to have her creditable service in Massachusetts reinstated.

The Petitioner argues that at the time she took her refund she was not informed that once her retirement contributions had been withdrawn, she would not be entitled to return the money to the TRS, reinstate her creditable service, and to receive a superannuation retirement allowance. Further, the Petitioner argues that she was not informed that she would have to be rehired by a Massachusetts public school system or another Massachusetts public employer before she would be allowed to pay back the refund and reestablish her prior service.

While I empathize with the Petitioner's situation, I have been unable to locate any statutory or case law indicating that the TRS has the authority to employ an equitable remedy in the face of specific statutory language to the contrary. CRAB's Decision on Request for Reconsideration, Adolph Petrillo v. PERA, CR-92-731 (10/22/93). For the foregoing reasons, the decision of the Teachers' Retirement System denying the Petitioner's request to have her refund paid back to Massachusetts and have her creditable service in Massachusetts reinstated is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 6/27/08


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