COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Vanessa Dixon,

Petitioner

v. Docket No. CR-08-259

Lowell Retirement Board,

Respondent

Appearance for Petitioner:

Inga S. Bernstein, Esq.

Zalkind, Rodriguez, Lunt & Duncan LLP
65A Atlantic Avenue
Boston, MA 02110

Appearance for Respondent:

Michael Sacco, Esq.

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

Administrative Magistrate:

Kenneth J. Forton, Esq.

DECISION ON PETITIONER'S MOTION TO STAY
WITHHOLDING OF RETIREMENT BENEFITS

BACKGROUND

This case concerns a G.L. c. 32, § 14 offset against the Petitioner's disability- related tort recovery and subsequent withholding of accidental disability retirement benefits. On February 23, 2007, after a long dispute, the Lowell Retirement Board granted the Petitioner, Vanessa Dixon, accidental disability retirement benefits, with an effective retirement date of May 15, 2004. In October 2007, the Board paid Ms. Dixon $107,251.01 in retroactive retirement payments.

Ms. Dixon is a former police officer. She was employed from April 1994 to February 2007 and is a member inactive of the Lowell Retirement Board. Long before Ms. Dixon was granted her retirement, on October 18, 2001, she filed a lawsuit against her union and individual officers and members of the union, alleging discrimination, retaliation, assault, defamation, and intentional infliction of emotional distress. The lawsuit was based on the same facts and circumstances as the award of her accidental disability retirement. The facts are detailed in an earlier DALA decision, Dixon v. Lowell Retirement Bd., CR-03-1033 (DALA dec. 6/20/06; no CRAB dec.). See also Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 78-80 (1st Cir. 2007) (detailing facts in light most favorable to the Petitioner). Essentially, Ms. Dixon became the target of considerable retaliation from her union and individual police officers after she complained of an incident of sexual harassment.

On October 18, 2005, Dixon received a jury verdict in the case and was awarded a judgment of approximately $2.2 million, comprised of $1,205,000 in compensatory damages and $1,027,501 in punitive damages. The verdict did not specify what part of the award was attributable to lost wages. The defendants in the lawsuit subsequently appealed, and on September 28, 2007 the United States Court of Appeals affirmed the judgment. The United States Supreme Court denied certiorari on January 24, 2008. Soon thereafter, Dixon received from the defendants $1,766,960, after attorney's fees and costs had been deducted, in satisfaction of the judgment.

When Ms. Dixon received the money, her attorney and counsel for the Board engaged in discussions in an attempt to agree upon how much of the judgment the Board would recover as an offset pursuant to G.L. c. 32, § 14A. These discussions were required because the jury verdict did not address lost wages, and § 14A gives the Board a right to offset only lost wages under certain prescribed circumstances. Ms. Dixon argues that none of the jury verdict is for lost wages. The parties did not come to an agreement on a liquidated lost wages amount.

Subsequently, the Board performed its own calculation and concluded that $345,000 of the $1,205,000 award for compensatory damages represented lost wages and should be subject to offset. On March 28, 2008, the Board voted to withhold Ms. Dixon's accidental disability retirement benefits until the Board recoups the $345,000. The net result of this order is that Ms. Dixon is not currently receiving any retirement benefits.

PROCEDURAL STATUS

Ms. Dixon has appealed the Board's decision to withhold her benefits. A hearing on the merits is scheduled for December 7, 2008. Now before me is Ms. Dixon's June 9, 2008, motion to stay the withholding of her retirement benefits. The Board filed its opposition on June 16, 2008. A pre-hearing conference was held on October 9, 2008, where the parties were given the opportunity to file additional briefs on the issue of DALA's statutory and/or regulatory authority to issue a stay of the withholding of Ms. Dixon's retirement benefits. Both parties have submitted briefs on the issue.

DECISION AND ORDER

Although Ms. Dixon has denominated her motion as a "motion to stay," what she is requesting is not a stay of any order of this Division, but rather a preliminary injunction to enjoin the Board from withholding her accidental disability retirement benefits until the putative court-awarded compensation is offset and order the Board to resume regular payments, all prior to holding a hearing on the merits. I conclude that I do not have the power to issue such an injunction and, therefore, decline to do so.

Unlike a court, "[a]n administrative agency has no inherent or common law authority to do anything. An administrative board may act only to the extent that it has express or implied statutory authority to do so." Comm'r of Rev. v. Marr Scaffolding Co., 414 Mass. 489, 493 (1993), citing Hartford Accident & Indem. Co. v. Commissioner of Ins., 407 Mass. 23, 27-28 (1990). G.L. c. 30A, § 11, by its terms, does not grant administrative agencies the power to grant injunctions. Neither does G.L. c. 32, § 16(4), the other provision which governs this proceeding, grant DALA the power to grant injunctions.

Chapter 32 carefully delineates the powers of the Contributory Retirement Appeal Board and DALA in these proceedings. Chapter 32 does not grant DALA the power to issue an injunction against a retirement board; those powers are reserved to the courts. Cf. G.L. c. 32, § 24(1) ("The superior court shall have jurisdiction in equity upon petition of the public employee retirement administration commission or any interested party to compel the observance and to restrain the violation of any provision of [chapter 32,] sections one to twenty-eight, inclusive, and of the rules and regulations established thereunder."); Cole v. Essex County Retirement Bd., CR-01-854 (DALA dec. 7/19/02; no CRAB dec.) (to enforce DALA order allowing him to purchase creditable service, petitioner must seek writ of mandamus or other legal means).

DALA does not have the authority to grant the requested relief; therefore, the motion must be denied.

DENIED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kenneth J. Forton, Esq.
Administrative Magistrate

Dated: November 18, 2008


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