COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Dorothy Sweeney,

Petitioner

v. CR-06-1127

State Board of Retirement,

Respondent

Appearance for Petitioner:

Dorothy Sweeney

P.O. Box 125
112 Old Wharf Road W-11
Dennisport, Ma. 02639

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, Dorothy Sweeney, is appealing the December 4, 2006 decision of the Respondent, State Board of Retirement, denying her request to purchase creditable service in accordance with the provisions of G.L. c. 32 §4(1)(s) for her service as a clinical Instructor at Massasoit Community College (MCC) from August of 1977 through August of 1979 (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 February 21, 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 - 14). The Respondent's Pre-hearing Memorandum was marked as "A" for identification. The Petitioner testified in her 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, Dorothy Sweeney, d.o.b. 8/18/48, was employed by the City of Boston Parks Department during the summer of 1969, working full-time during the months of June, July, and August (testimony of the Petitioner).

2. She did not become a member of the Boston Retirement System during the summer of 1969 and had no retirement deductions taken from the compensation she received for those three months (testimony of the Petitioner).

3. From August of 1977 through August 26, 1979 the Petitioner was employed as a part-time clinical Instructor of Nursing at MCC. She worked twenty-one hours per week teaching nursing students and attending inter-agency meetings relating to nursing activities (Exhibit 5, testimony of the Petitioner).

4. During the period of August of 1977 through August 26, 1979, the Petitioner was paid through an "03" account and not through the regular state payroll. Some of the monies allocated for the Petitioner's salary were derived from federal grants (Exhibits 10 & 14, testimony of the Petitioner).

5. The Petitioner did not receive any benefits during the period of her employment at MCC from August of 1977 through August of 1979 and was not a member of the State Employees' Retirement System during that period of time (testimony of the Petitioner).

6. On August 26, 1979, the Petitioner accepted a position as a full-time instructor at MCC. She became a member of the State Employees' Retirement System at that time (testimony of the Petitioner).

7. The Petitioner remained at MCC until on or about August of 2000 when she transferred to a full-time position as an instructor at Bristol Community College (testimony of the Petitioner).

8. In 2003, the Petitioner submitted an application to participate in the Early Retirement Incentive Program offered by the State Employees' Retirement System. However, before the effective date of that retirement, the Petitioner withdrew her application (Exhibits 7, 8 & 9).

9. On or about early June of 2005, the Petitioner notified the administration at Bristol Community College that she intended to retire at the conclusion of the following academic year at the end of August of 2006. The Community College System had its own retirement incentive program whereby qualified employees would receive a one-time payment up to $20,000 if they submitted notification a full academic year in advance of their intended retirement (testimony of the Petitioner).

10. On June 30, 2005, the Petitioner filed a "form to purchase time" with the State Board of Retirement requesting that she be permitted to purchase her part-time service at MCC from 1977 through 1979. On December 13, 2005, the State Board of Retirement notified the Petitioner that she was not eligible to purchase that time as she was not paid under the regular State payroll during that period of time (Exhibit 6).

11. In early August of 2006, the Petitioner learned that legislation was enacted by the State Legislature authorizing certain eligible members of the State Retirement System to purchase as creditable service, prior employment by the members as an "03" employee (testimony of the Petitioner).

12. At the same time, the Petitioner was informed that the legislation in question authorizing the purchase of certain employment as an "03" employee had an effective date of October 17, 2006 (testimony of the Petitioner).

13. As soon as she learned that October 17, 2006 was the effective date of the legislation, the Petitioner went to the administration at Bristol Community College and inquired as to whether her retirement incentive payment of $20,000 would be jeopardized if she remained employed until October 17, 2006 rather than retire at the end of the August of 2006 as scheduled (testimony of the Petitioner).

14. The Petitioner did not receive any response from officials at Bristol Community College concerning her inquiry (testimony of the Petitioner).

15. On August 17, 2006, the Petitioner submitted a retirement application with the State Board of Retirement with an effective retirement date of August 31, 2006 (Exhibit 4).

16. With this application, the Petitioner submitted a "Buyback Request Form" requesting to purchase her summer service with the Boston Parks Department from June 1969 to August 1969 as well as her part-time service with MCC from August of 1977 through August of 1979 (Exhibit 4).

17. The Petitioner did in fact retire on August 31, 2006 (testimony of the Petitioner).

18. On October 13, 2006, the Petitioner wrote to the Board and requested that she be permitted to buy back her August 1977 to August 1979 service pursuant to the new legislation, G.L. c. 32 §4(1)(s) (Exhibit 3).

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

20. On December 13, 2006, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

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).

The statute expressly provides that in order to purchase the service in question, an individual must be a "member in service of the state employees' retirement system." A "member in service" is defined as "[a]ny member who is regularly employed in the performance of his duties." G.L. c. 32 §3 (1)(a)(i). Unfortunately, at the time that G.L. c. 32 §4(1)(s) became effective, i.e., October 17, 2006, the Petitioner was an inactive member as she was retired from state service effective August 31, 2006. G.L. c. 32 §3(1)(a)(ii).

Arguing in her own behalf, the Petitioner asserts that prior to August 31, 2006, she attempted to determine whether she could postpone her retirement until October 17, 2006 without jeopardizing her retirement incentive bonus from the Community College System. However, despite her best efforts, she did not receive any response and as such, she felt compelled to retire as scheduled.

It is unfortunate that the Petitioner was not successful in clarifying the situation with her employer prior to August 31, 2006, the effective date of her retirement. Notwithstanding that fact, at the present hearing, the Petitioner fully acknowledged that she was aware of the effective date of the legislation in question prior to her retirement at the end of August 2006. In addition, the Petitioner never contacted the State Board of Retirement concerning this issue and thus cannot argue that the Board did not respond to her inquiry or that the Board provided her with misinformation concerning the consequences of retiring prior to the effective date of the new legislation.

Since the Petitioner was not a member in service of the State Employees' Retirement System at the time she requested to purchase creditable service, she is not entitled to purchase this service in accordance with the provisions of G.L. c. 32 § 4(1)(s). The decision of the State Board of Retirement is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: March 11, 2008


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