COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Barbara Hanafin,

Petitioner

v. Docket No. CR-06-1117

Stoneham Retirement Board and Arlington Retirement Board,

Respondents

Appearance for Petitioner:

Barbara Hanafin

29 Perkins St.
Stoneham, MA 02180

Appearance for Stoneham Retirement Board

Michael Sacco, Esq.

The Law Offices of Michael Sacco
285 College Highway
P.O. Box 479
Southampton, MA 01073-0479

Appearance for Arlington Retirement BoardT

Thomas Paul Gorman, Esq.

Sherin and Lodgen, LLP
101 Federal Street
Boston, MA 02110

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

Barbara Hanafin is appealing the December 1, 2006 decision of the Stoneham Retirement Board denying her request to purchase creditable service (Ex. 1). She appealed timely under the provisions of G.L. c. 32, § 16(4) (Ex. 2). I heard the appeal on January 22, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, 4th Floor, Boston.

At the hearing, I allowed the January 10, 2008 motion to join the Arlington Retirement Board as a necessary party. There are eight documents in evidence (Exs. 1 - 8). The joint pre-hearing memorandum of the parties containing stipulations of fact is "A" for identification. Ms. Hanafin testified; there is one tape of the hearing.

Findings of Fact

1. Barbara Hanafin works as a Clerk for the Town of Stoneham and became a member of the Stoneham Retirement System on June 25, 1998 (A).

2. In July and August 1970, Ms. Hanafin worked as a camp counselor for the Town of Arlington. She worked from 9:00 a.m. to 4:00 p.m. Her position was seasonal and she earned $660.00 (Ex. 4 and testimony).

3. In July and August during 1971 and 1972, Ms. Hanafin worked as a camp counselor for special needs children for the Town of Arlington. She worked from 9:00 a.m. to 3:00 p.m. Her position was seasonal. She earned $848.00 during 1971 and $760.00 during 1972 (Ex. 4 and testimony).

4. During the periods that Ms. Hanafin worked as a camp counselor, she was not eligible for membership in the Arlington Retirement System (A).

5. On September 24, 2004, the Stoneham Retirement Board adopted a regulation addressing the purchase of creditable service:

Members who previously rendered service and received a refund
of said service, either from this Board or another retirement board
under the jurisdiction of G.L. c. 32, are required to purchase the
full amount of creditable service rendered, based on the amount
withdrawn, together with regular interest. If said service was
rendered under the jurisdiction of a retirement board other than
this Board, it shall be the sole responsibility of the other retirement
board to determine the amount of creditable service rendered, and
what liability, if any, said board will accept pursuant to G.L. c. 32,
§ 3(8)(c). This Board will not accept liability for past refunded
service rendered under the jurisdiction of another retirement board (Ex. 7).

6. In March 2006, Ms. Hanafin verbally requested of the Stoneham Retirement Board that she be allowed to purchase as creditable service her seasonal employment she performed as a camp counselor for the Town of Arlington during the summers of 1970, 1971 and 1972 (A).

7. A September 28, 2006 memorandum from the Town of Arlington noted that Ms. Hanafin's service during 1970, 1971 and 1972 was "seasonal" (Ex. 4).

8. On October 11, 2006, the Stoneham Retirement Board wrote to the Arlington Retirement Board enclosing copies of Ms. Hanafin's payroll records and asking for the amount of liability the latter would accept (Ex. 3).

9. On October 27, 2006, the Arlington Retirement Board notified the Stoneham Retirement Board that it would not accept liability for creditable service because Ms. Hanafin was not a member of the retirement system and her employment "was provisional, temporary provisional, seasonal or intermittent" (Ex. 6).

10. On December 1, 2006, the Stoneham Retirement Board notified Ms. Hanafin that her request to purchase creditable service was denied and she appealed (Exs. 1 and 2).

Conclusion and Order

The decision of the Stoneham Retirement Board denying Ms. Hanafin's request to purchase her prior summer camp counselor service with the Town of Arlington is affirmed.

There are no facts in dispute. The parties stipulated that Ms. Hanafin was a seasonal employee during the summers of 1970, 1971 and 1972 and that she was not eligible for membership with the Arlington Retirement System. General Laws, c. 32, § 3(2)(d) "gives the appropriate retirement board 'full jurisdiction' to determine whether seasonal or certain other non-permanent employees are 'regularly employed' so as to be eligible for membership." Bernard Manning v. Contributory Retirement Appeal Board, 559 N.E.2d 630 (Mass.App.Ct. 1990).

General Laws, c. 32, § 3(5) provides, in pertinent part:

[A]ny member of any system who rendered service in any governmental
unit other than that by which he is presently employed, in a temporary,
provisional, or substitute position and who was excluded from
membership by the rules of the board, may, before the date any
retirement allowance becomes effective for him, pay into the annuity
savings fund of the system in one sum, or in installments, upon such
terms as the board may prescribe, an amount equal to that which
would have been withheld as regular deductions from his regular
compensation for such previous period…had such service been
rendered in the governmental unit by which he is presently employed
and in a position subject to the provisions of this chapter…(emphasis
added).

In the case of Elizabeth McCarty v. Taunton Retirement Board and Teachers' Retirement Board, CR-89-828 (DALA decs. 1/15/93, 4/15/93; CRAB dec. 1/13/94), Ms. McCarty was employed by the City of Taunton for four weeks during the summer of 1947. She was ineligible for membership in the Taunton Retirement System. Later, she became a member of the Teachers' Retirement System and sought to purchase as creditable service her time with Taunton. The Taunton Retirement Board refused to accept liability. The Contributory Retirement Appeal Board affirmed the decisions of the Taunton Retirement Board and Teachers' Retirement Board, finding that Ms. McCarty's service with Taunton was not in a position that was "temporary, provisional or substitute" under § 3(5) but rather was "intermittent, sporadic and limited in nature" and thus not eligible for purchase. The facts in Ms. Hanafin's case are similar to those in McCarty.

Ms. Hanafin argued that she should be allowed to purchase her camp counselor time because she knows many people who have "bought back" time and that she was on time every day and did a full day's work. Unfortunately, these arguments are not persuasive. Whether an employee can purchase prior service depends on the unique facts in each particular instance. The fact that Ms. Hanafin might have been an exemplary employee during her summers in Arlington also cannot help her prevail.

Therefore, the decision of the Stoneham Retirement Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Kimberly A. Fletcher
First Administrative Magistrate

DATED: 4/18/08


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