COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Madgie Cox and Alvie Grimes,

Petitioners

v. Docket No. CR-07-1017

Boston Retirement Board
and
Teresa Carter and Frank Richard Carter III,

Respondents

Appearance for Petitioners:

C. Peter Gossels, Esq.

84 State Street
Boston, MA 02109-2299

Appearance for Respondent Board:

Michael A. West, Esq.

McLucas & West, PC
141 Tremont Street, 4th floor
Boston, MA 02111-1227

Appearance for Intervenors:

David J. Himmelberger, Esq

One Hollis Street, Suite 400
Wellesley, MA 02482

Administrative Magistrate:

Maria A. Imparato

CASE SUMMARY

After decision was issued in case submitted on the documents under 801 CMR 1.01(10)(c) at the request of the Petitioners, the Petitioners requested a hearing.

AMENDED DECISION ON REMAND

Madgie Cox and Alvie Grimes filed an appeal on October 31, 2007, under G. L. c. 32, s. 16 (4) of the Boston Retirement Board's failure to act to recognize the Petitioners as the beneficiaries of the Board's deceased member, Mack Grimes. By email communication of November 7, 2007 the Board indicated that Teresa Carter and Frank Richard Carter III are deemed to be the rightful beneficiaries of Mack Grimes. (Exs. 1, 2)

By letter of December 10, 2007, the Petitioners requested that the matter be handled as a Submission Without a Hearing under 801 CMR 1.01(10)(c). I marked documents into evidence (Exs. 1 - 11) and issued a decision on March 11, 2008 concluding that Teresa Carter and Frank Richard Carter III were the rightful beneficiaries of Mack Grimes.

The Petitioners' election to waive a hearing was conditional. In their letter to DALA dated December 10, 2007, the Petitioners stated, "The Petitioners, nevertheless, reserve their right to a hearing in the event that the Board's response shall challenge any of the allegations of fact set forth in the Brief enclosed." Briefs challenging the Petitioners' allegations of fact were filed on January 11, 2008, by the Board and on January 15, 2008, by the Intervenors. By letter dated March 10, 2008 to DALA, the Petitioners claimed a right to a hearing. The Petitioners subsequently appealed to the Contributory Retirement Appeal Board (CRAB.)

By decision of June 12, 2009, CRAB vacated my decision and remanded the case to DALA stating, "If on remand DALA finds that its decision issued before it received petitioner's request for a hearing, then DALA need only amend its decision to include that finding. We would affirm such an amended decision because petitioners have not called our attention to any error of law in the decision itself, assuming the facts found by the magistrate."

I hereby issue an amended decision finding that my decision issued before DALA received the Petitioners' request for a hearing. I also add to the record Exhibits 12 and 13 in support of that finding. An amended list of exhibits appears on the last page of this decision.

FINDINGS OF FACT

I incorporate by reference Findings of Fact 1 - 17 from my decision of March 11, 2008 as if fully set forth herein. I hereby make additional findings of fact.

18. By letter dated March 10, 2004 to then-First Magistrate Kimberly A. Fletcher, the Petitioners claimed "their right to a hearing in the above-entitled matter." The letter was date-stamped as received at DALA on March 11, 2008. (Ex. 12)

19. By letter of March 11, 2008 to Petitioners' counsel from First Administrative Magistrate Fletcher she stated, "Today I received your letter dated March 10, 2004 after the decision in this case was issued." (Ex. 13)

CONCLUSION AND ORDER

I hereby incorporate by reference the Conclusion and Order in my decision of March 11, 2008 as if fully set forth herein.

DIVISION OF ADMINISTRATIVE LAW APPEALS
____________________________________________
Maria A. Imparato
Administrative Magistrate


DATED: 9/25/09


AMENDED LIST OF EXHIBITS

Exhibit 1 Petitioners' appeal, 11/2/07
2 Faxes between Boston Retirement Board and DALA, 11/7/07, 12/5/07
3 Magistrate to parties, 12/12/07
4 Petitioners' brief, with attachments A-K, 12/11/07
5 Respondent's brief, with attachments 1-14, 1/11/07
6 Petitioners' reply to Respondent's brief, 1/24/08
7 Petitioners' reply to Intervenors' brief, 1/24/08
8 Brief of Intervenors, 1/15/08
9 Respondent to Magistrate, 1/31/08
10 Intervenors' counsel to Magistrate, 2/4/08
11 Affidavit of Edward J. O'Brien, Jr., Manager of Client Services
12 Petitioners' counsel to DALA, 3/10/04 (sic)
13 DALA to Petitioners' counsel, 3/11/08