COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-07-203
State Board of Retirement,
Appearance for Petitioner:
Catherine Sleeth, pro se
35 Shore Drive
Wrentham, MA 02093
Appearance for Respondent:
Erin C. Nally, Esq.
State Board of Retirement
One Ashburton Place, 12th floor
Boston, MA 02108
Maria A. Imparato, Esq.
Catherine Sleeth filed a timely appeal under G. L. c. 32, s. 16 (4) of the February 26, 2007 decision of the State Board of Retirement ("Board") to deny her request to purchase credit for her 03 service rendered prior to the date she established membership in the retirement system, and to rescind her purchase of creditable service for the time she worked for the Shore Educational Collaborative. (Exs. 1, 2)
I held a hearing on March 13, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. I admitted documents into evidence. (Exs. 1 - 23) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified. There is one tape cassette of the hearing.
FINDINGS OF FACT
1. Catherine Sleeth, d.o.b. 2/27/1946, was a member in service of the State Employees Retirement system while she was employed by the Department of Mental Retardation ("DMR") from 1987 until she retired under the Early Retirement Incentive Program on March 15, 2002.
2. Prior to establishing membership in the retirement system, Ms. Sleeth worked as a teacher and a teacher's aide for the Shore Educational Collaborative from October 4, 1976 to June 30, 1977, and then again from July 6, 1977 to June 30, 1978. (Ex. 18)
3. From December 1981 until she established membership in the retirement system in 1987, Mr. Sleeth worked as a DMR Service Coordinator under an 03 contract. (Ex. 9)
4. In April 2003, through Chapter 468 of the Acts of 2002, G. L. c. 32 was amended to add section 4 (1) (l ¾) which allows a member of the State retirement system to establish credit for time worked prior to 1983 as a employee of an educational collaborative. (Ex. 14)
5. In July and August 2003 Ms. Sleeth requested that the Board allow her to purchase credit for her work at the Shore Educational Collaborative.
(Exs. 5, 15, 16, 18, 19)
6. By letter of October 2, 2003 the Board denied Ms. Sleeth's request to purchase credit for her work at Shore Educational Collaborative "because you were not on the payroll when the law went into effect in January 2003." (Ex. 8)
7. By letter of October 3, 2003 the Board acknowledged receipt from Ms. Sleeth of payment of $4,567.06 to purchase 1 year, 10 months and 22 days of creditable service for her work at Shore Educational Collaborative. (Ex. 22)
8. Ms. Sleeth's retirement allowance was increased to reflect her purchase of this creditable service. (Ex. 7)
9. In October 2006, through Chapter 161 of the Acts of 2006, G. L. c. 32, was amended to add section 4 (1) (s), which allows a member in service of the State employees retirement system to purchase up to four years of credit for his work as a contract employee for any department of the Commonwealth, under certain circumstances.
10. By letter of January 4, 2007 to the Board, Ms. Sleeth requested to purchase credit for her 03 employment with DMR from 1981 to 1987. (Ex. 9)
11. The Board denied Ms. Sleeth's request in an undated communication, because "you are retired and the law went into effect after you retired." (Ex. 10)
12. By letter of January 25, 2007 Ms. Sleeth requested that the Board reconsider her request to purchase credit for her 03 service. (Ex. 11)
13. By letter of February 26, 2007 the Board denied Ms. Sleeth's request for reconsideration of the 03 request because to "be eligible to purchase contract service one must have been a member in service of the SERS when the law took effect on October 17, 2006." (Ex. 1)
14. In the same letter, the Board notified Ms. Sleeth that in the course of reviewing her 03 request, the Board had become aware that she had been permitted to purchase credit for her work at the Shore Educational Collaborative, despite the fact that the Board had earlier voted to deny that request. The Board indicated that it would have to rescind her purchase of creditable service and adjust her retirement allowance, in accordance with G. L. c. 32, s. 20 (5) (c). The Board also indicated that it had voted not to seek recovery of the excess retirement benefits paid from October 2003 through March 2007. (Ex. 1) Ms. Sleeth appealed. (Ex. 2)
CONCLUSION AND ORDER
The decision of the State Board of Retirement is affirmed. Catherine Sleeth was not eligible in 2003 to purchase credit for her work at the Shore Educational Collaborative, and she is not eligible to purchase credit for her 03 service to DMR. The Board was correct to rescind her purchase of credit for her work at the Shore Educational Collaborative and to adjust her retirement allowance accordingly, under G. L. c. 32, s. 20 (5) (c).
Shore Educational Collaborative
The Petitioner established membership in the retirement system in 1987. The Petitioner retired on March 15, 2002. Any credit for service rendered prior to a member's becoming a member of the retirement system must be purchased "before the date any retirement allowance becomes effective for him …" under the provisions of G.L. c.32, ss. 3 (3) and 4(2)(c). C. Peter Gossels v. Middlesex Retirement Board, CR-03-760 (DALA dec. 2/23/04; CRAB dec. 10/28/04; Carole Martin v. State Board of Retirement, CR-98-253 (DALA dec. 9/8/1999; CRAB dec. 5/2/00) The Petitioner requested in July 2003, more than a year after she retired, to purchase credit for her service at the Shore Educational Collaborative between 1976 and 1978. The Board erred by allowing her to purchase credit for this service after she had retired.
Under the provisions of G. L. c. 32, s. 20 (5) (c) (2), the Board is required to correct any error made in computing a benefit, and to adjust future payments accordingly. The Board was correct to rescind its award of creditable service and adjust the Petitioner's retirement allowance when in its review of the 03 issue the Board discovered its error.
Credit for the Petitioner's 03 service to the DMR from 1981 to 1987 cannot be purchased after the Petitioner's date of retirement under the provisions of
G. L. c. 32, ss. 3 (3) and 4(2) (c). Furthermore, the express language of G. L. c. 32, s. 4 (1) (s) grants the right to purchase credit for 03 service to "[a]ny member in service." Because the Petitioner has retired, she is no longer a "member in service," but is a "member inactive" under the provisions of G. L. c. 32, ss. 3 (1) (a) (i) and (ii). The Petitioner is therefore not eligible to purchase credit for her 03 service.
The decision of the Board to deny the Petitioner's request to purchase pre-membership 03 service, and to rescind the Petitioner's purchase of credit for pre-membership service to an educational consortium is affirmed.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato
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