COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Fabian Trudeau,

Petitioner

v. CR-06-1116

State Board of Retirement,

Respondent

Appearance for Petitioner:

Fabian Trudeau

649 Newton Street
South Hadley, Ma. 01075

Appearance for Respondent:

Crystal Chow, Esq.

State Board of Retirement
One Ashburton Pl. - 12th Fl.
Boston, Ma. 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Fabian Trudeau, is appealing the December 4, 2006 decision of the Respondent, State Board of Retirement, denying his request to purchase creditable service in accordance with the provisions of G.L. c. 32 §4(1)(s) for his service with the Division of Capital Asset Management (DCAM) from July 17, 1992 through October 8, 1996 (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on January 15, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 - 11). The Petitioner's Pre-hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" for identification. The Petitioner testified in his own behalf. One cassette tape recording was made of the hearing.

FINDINGS OF FACT

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

1. The Petitioner, Fabian Trudeau, d.o.b. 12/12/40, was an active member of the U.S. Army from October 1959 through June of 1966, when he received an honorable discharge. He is a Vietnam Veteran, having served in Vietnam from 1965-1966 (testimony of the Petitioner).

2. During the period of May 2, 1977 through July 1, 1978, the Petitioner was employed by the City of Holyoke. He was a member of the Holyoke Retirement System at that time. When he left the City of Holyoke in July of 1978, he withdrew his contributions to the Holyoke Retirement System (testimony of the Petitioner).

3. During the period from July 17, 1992 through October 8, 1996, the Petitioner was employed as a Mechanical Engineer IV for DCAM. He was paid through a N08 Federal subsidiary account and was considered to be an 03 consultant (testimony of the Petitioner, Exhibit 7).

4. The Petitioner did not become a member of the State Retirement System during his employment with DCAM and did not have retirement deductions taken from his compensation. Rather, the Petitioner had money taken from his compensation that was placed in a deferred compensation plan (testimony of the Petitioner).

5. In August of 1997, the Petitioner accepted a position as facilities manager/Mechanical Engineer IV with the Department of the State Police. He became a member of the State Retirement System at that time (testimony of the Petitioner).

6. In August of 2005, the Petitioner completed a purchase of his prior service with the City of Holyoke and the U.S. Army and received a total of 5 years and 2 months of creditable service (Exhibit 3).

7. On October 5, 2006, the Petitioner completed a Contract Service Buyback Form requesting that he be permitted to purchase his prior contract service with DCAM from July 17, 1992 through October 8, 1996 (Exhibit 4).

8. On October 26, 2006, the State Board of Retirement sent the Petitioner a letter indicating that it was unable to process this request as he lacked the requisite ten years of service with the state to be eligible for such purchase. At the time of his request to purchase the service from DCAM, the Petitioner had an estimated nine years and three months of service with the state (Exhibit 5).

9. On November 5, 2006, the Petitioner submitted additional payroll records indicating that he had worked at DCAM from July 5, 1992 to June 30, 1997. He also explained that during July of 1997, he underwent a background check before he was cleared for employment with the Department of the State Police (Exhibit 7).

10. On December 4, 2006, the State Board of Retirement sent the Petitioner a formal denial of his request to purchase his prior service with DCAM in accordance with the provisions of G.L. c. 32 §4(1)(s) (Exhibit 1).

11. On December 12, 2006, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

12. On December 12, 2006, the Petitioner filed an application for superannuation retirement benefits with an effective retirement date of December 31, 2006. The Petitioner did in fact retire on December 31, 2006 (Exhibit 9).

CONCLUSION

G.L. c. 32 §4(1)(s), created by the adoption of Chapter 161 of the Acts of 2006 and effective as of October 17, 2006, authorizes eligible members in service of the State Employees' Retirement System to purchase up to four years of state contract service as creditable service, provided that they meet certain specified criteria.

G.L. c. 32 §4(1)(s) provides in pertinent part that:

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 creditable service with the state employees' retirement system, and if the job description of the member in the position which the member holds upon entry into service or re-entry into active service is substantially similar to the job description of the position for which the member was compensated as a contract employee…(emphasis supplied).

In this case, the Petitioner did not have the statutory requisite of ten years of state service between the date that he became a member of the state employees' retirement system in August of 1997 and October 5, 2006, the date of his request to purchase his prior contract service with DCAM. Unfortunately at the time he made the request to purchase his prior contract service with DCAM in October of 2006, the Petitioner had only nine years and three months of state service.
Arguing in his own behalf, the Petitioner asserts that nothing in the statutory language of G.L. c. 32 §4(1)(s) prohibits either his military service or his service with the City of Holyoke from counting towards the statutory requirement of ten years. The Petitioner further asserts that if his military service and service with the City of Holyoke was included, he well exceeded the statutory requirement of ten years of state service.

Notwithstanding the Petitioner's contention, G.L. c. 32 §4(1)(s) unequivocally states as a requisite for purchase of prior contract service that "the member has 10 years of creditable service with the state employees' retirement system." Neither the Holyoke Retirement System nor military service constitutes service with the state employees' retirement system. See Claire Barker v. State Board of Retirement, CR-07-155 (DALA dec. 7/20/07; CRAB appeal pending). Since Mr. Trudeau retired on December 31, 2006, he is unfortunately not able to accrue the necessary months of state service to allow him to meet the statutory requirement of ten years of state service in order to be eligible to purchase his prior contract service. G.L. c. 32 §4(1) provides that the purchase of creditable service must be accomplished prior to the effective date of a member's retirement (emphasis supplied). See Greene v. Contributory Retirement Appeal Board et al. (Suffolk Superior Court, #SUCV2003-05639-C, 3/28/05).

In light of the fact that the Petitioner did not have 10 years of service with the state employees' retirement system at the time he requested to purchase his service from July 17, 1992 to October 8, 1996, the decision of the State Board of Retirement denying his request brought pursuant to G.L. c. 32 § 4(1)(s) is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 3/11/08


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