COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Thomas Thorburn,

Petitioner

v. Docket No. CR-07-424

Worcester Regional Retirement Board,

Respondent

Appearance for Petitioner:

Dennis R. Brown, Esq.

Dennis R. Brown, P.C.
31 Washington Street
Wellesley, MA 02481

Appearance for Respondent:

Kevin P. Blanchette, Esq.

Worcester Regional Retirement Board
23 Midstate Drive
Auburn, MA 01501

Administrative Magistrate:

Kenneth J. Forton, Esq.

DECISION ON RESPONDENT'S MOTION TO DISMISS

The Petitioner, Thomas Thorburn, appeals, pursuant to G.L. c. 32, § 16(4), the February 27, 2007 decision of the Respondent, Worcester Regional Retirement Board (WRRB), denying his request for a voluntary superannuation retirement allowance. (Ex. P) Mr. Thorburn, through his attorney at the time, John D. Mahaney, filed a notice of appeal on June 7, 2007.

A hearing on the Respondent's motion to dismiss was held by Administrative Magistrate Judithann Burke on June 25, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. There is one cassette tape of the hearing. Various documents are in evidence. (Petitioner's Exhibits A-E; Respondent's Exhibits A-P).

The day before the hearing, the WRRB moved to dismiss Mr. Thorburn's appeal for lack of timeliness. A copy of the motion was provided to Mr. Thorburn and his counsel on the day of the hearing. No written opposition to the motion was filed. The parties argued the motion to dismiss, but no testimony was taken. There was no hearing on the merits.

FINDINGS OF FACT

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

1. Thomas Thorburn has worked at various times since 1990 for the towns of Berlin and Northboro as a Wiring Inspector. (Resp. Exs. J, L, M)

2. On March 30, 2005, the Worcester Regional Retirement Board responded to a request from Mr. Thorburn for an estimate of his retirement allowance. The letter informed Mr. Thorburn that he had accumulated a total of four years and six months of creditable service. The letter further advised that Mr. Thorburn's employment with the Town of Berlin did not qualify as creditable service because Mr. Thorburn's compensation was based on fees and thus was not regular compensation. Finally, the letter stated that Mr. Thorburn was not entitled to a retirement allowance because he had less than ten years of creditable service. (Resp. Ex. J)

3. On November 21, 2006, Mr. Thorburn sent a certified letter, requesting an application for voluntary superannuation retirement, to the WRRB. In the letter, he asserted that he had been a member of the retirement system since 1990. (Resp. Ex. P)

4. On February 27, 2007, the WRRB responded by letter to Mr. Thorburn's letter. The letter states that Mr. Thorburn had four years and six months of creditable service and thus did not complete the ten years of creditable service required to receive a retirement allowance. Instead of enclosing a retirement application, the WRRB enclosed forms for the withdrawal or rollover of Mr. Thorburn's total accumulations in the system, as provided by G.L. c. 32, § 11(1). (Resp. Ex. P)

5. On June 7, 2007, the Contributory Retirement Appeal Board received a letter from Mr. Thorburn's attorney, John D. Mahaney. The letter states, in part: "Please accept this letter as Mr. Thorburn's official Notice of Appeal with regard to the Worcester Regional Retirement System's decision of February 27, 2007. Enclosed is a copy of the denial from the Worcester Regional Retirement System." (Resp. Ex. A)

CONCLUSION AND ORDER

The Respondent's Motion to Dismiss is granted. The Petitioner appealed the decision of the Worcester Regional Retirement Board more than fifteen days after receiving the Board's decision. The Division of Administrative Law Appeals, therefore, lacks jurisdiction to hear the Petitioner's Appeal.

G.L. c. 32, § 16(4) provides in pertinent part, that "any person when aggrieved by any action taken or decision of the retirement board . . . , or by the failure of a retirement board . . . to act, may appeal to the contributory retirement appeal board by filing therewith a claim in writing within fifteen days of notification of such action or decision of the retirement board . . . , or may so appeal . . . within fifteen days after the expiration of one month following the date of filing a written request with the board . . . if no time for action thereon is specified . . . ." If the Petitioner does not file a timely appeal, then neither CRAB nor DALA have the required jurisdiction to hear the appeal. See, e.g., Gomes v. New Bedford Retirement Bd., CR-05-207 (DALA dec. 4/19/06; CRAB dec. 11/2/06) (appeal dismissed where petitioner filed appeal eighteen days after decision of respondent board); Maye-Wilson v. Boston Retirement Bd., CR-06-177 (DALA dec. 5/18/07; no CRAB dec.) (appeal dismissed where petitioner failed to prove appeal was filed within fifteen days of respondent board's decision).

The Respondent argues that the Petitioner's appeal must be dismissed because the Petitioner failed to appeal the decision of the WRRB within the fifteen days specified by G.L. c. 32, § 16(4). At the hearing on the motion, the Petitioner advanced, basically, two reasons why his appeal should not be dismissed.
First, Mr. Thorburn argued that the WRRB's February 27, 2007 letter was not a response to his November 21, 2006 letter requesting an application because the WRRB did not include a retirement application with its response. Rather, he argued, the WRRB's letter constituted a failure to respond to Mr. Thorburn's letter, and accordingly the fifteen-day appeal period does not apply.

This argument fails for two reasons. First, the WRRB's February 27, 2007 letter was clearly "an action taken or decision of the retirement board," which triggers the fifteen-day appeal period. G.L. c. 32, § 16(4). The WRRB plainly stated that Mr. Thorburn was not entitled to a retirement allowance because he had less than ten years of creditable service. In fact, Mr. Thorburn has known the WRRB's position since March 30, 2005, when he was informed by letter that he was not entitled to a retirement allowance.

Mr. Thorburn failed to file his appeal of the WRRB's decision until June 7, 2007, which was one hundred days after the WRRB's decision. And, when he did finally appeal, Mr. Thorburn's notice of appeal clearly stated that he was appealing "the Worcester Regional Retirement System's decision of February 27, 2007." (Ex. A) Therefore, his appeal must be dismissed for lack of jurisdiction. See Gomes, supra; Maye-Wilson, supra.

Moreover, even if the WRRB's February 27, 2007 letter constituted a failure to respond to the Petitioner, which it does not, the Petitioner still appealed too late. If a retirement board fails to act, G.L. c. 32, § 16(4) provides that an appeal must be filed "within fifteen days after the expiration of one month following the date of filing a written request with the board." In this case, that would have been April 11, 2007, still making the Petitioner's appeal fifty-seven days late.

Second, Mr. Thorburn argues that the WRRB does not have the legal authority to refuse to supply application materials but rather has an affirmative obligation to assist members in preparation of retirement materials. This argument fails. Retirement boards do not owe any general fiduciary duty to their members, Benoit v. Bristol County Retirement Bd., CR-04-291 (DALA dec. 8/1/05; CRAB dec. 3/6/06), except as regards the investment of the boards' funds. G.L. c. 32, § 1. The duties and responsibilities of retirement boards are statutorily defined in G.L. c. 32, § 20(5), which imposes no fiduciary duty that flows from retirement boards to their members.

The only § 20(5) duty imposed on retirement boards that arguably applies to the facts of this case is the duty to respond to members' requests for "notice of the benefits to which such member[s] [are] or may be entitled." G.L. c. 32, § 20(5)(k). The WRRB discharged this duty when it responded to Mr. Thorburn's request for an estimate of his retirement allowance by letter dated March 30, 2005, in which Mr. Thorburn was informed that he was not eligible for a retirement allowance. The WRRB reiterated its conclusion in its letter of February 27, 2007.

For the above-stated reasons, the Respondent's Motion to Dismiss is granted. This appeal is, therefore, dismissed with prejudice.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kenneth J. Forton
Administrative Magistrate


DATED: 7/17/08


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