COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Henry McDeed,

Petitioner

v. CR-06-646

Massachusetts Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Richard Staiti, Esq.

779 Washington St. - Unit 1
Canton, MA 02021

Appearance for Respondent:

Aaron Morrison, Esq.

Massachusetts Teachers' Retirement System
One Charles Park
Cambridge, MA 02142


Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

The Petitioner, Henry McDeed, is appealing the September 22, 2006 decision of the Respondent, Massachusetts Teachers' Retirement System, declining to allow him to enroll in the RetirementPlus Program pursuant to the provisions of G.L. c. 32 §5(4)(i) (Exhibit 1). A timely appeal of this decision was filed with the Contributory Retirement Appeal Board.

A hearing on the merits of the appeal was held on April 30, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, MA pursuant to G.L. c. 7 §4H. The Petitioner's Pre-hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" for identification. Various documents were entered into evidence at the hearing (Exhibits 1 - 11). The Petitioner testified in his own behalf. One cassette tape recording was made of the hearing. At the outset of the hearing, Counsel for the Respondent made a Motion to Dismiss for Lack of Jurisdiction. Both parties gave oral arguments concerning that Motion.

FINDINGS OF FACT

Based on the testimony and evidence presented, I make the following findings of fact:

1. The Petitioner, Henry McDeed, d.o.b. 1/17/57, is currently an active member of the Massachusetts Teachers' Retirement System (testimony of the Petitioner).

2. For the past approximately twenty years up to and including the present date, the Petitioner has resided at 26 Brookside Drive in Attleboro, MA, a single family residence (testimony of the Petitioner).

3. The Petitioner became a member of the Teachers' Retirement System upon commencing his teaching career with the Seekonk, MA Public School System in September of 1983. He remained employed by the Seekonk Public Schools until June of 1997 (testimony of the Petitioner).

4. In September of 1997, the Petitioner accepted a position as a teacher in Lincoln, Rhode Island. He remained in that position until June of 2001 (testimony of the Petitioner).

5. The Petitioner left his accumulated retirement contributions in the Massachusetts Teachers' Retirement System while he was employed in Lincoln, Rhode Island (testimony of the Petitioner).

6. In or about February of 2001, the Teachers' Retirement System mailed to the Petitioner at his Attleboro, MA address a RetirementPlus election package. Included in this package was an information sheet, the RetirementPlus tool kit CD, the three-part election form and a pre-addressed reply envelope. The election form indicated that the deadline for enrolling in the RetirementPlus Program was June 30, 2001 (Exhibit 3).

7. In or about April of 2001, the Petitioner accepted a position as Assistant Principal at Canton High School, Canton, MA commencing in July of 2001 (Exhibit 8).

8. During employment negotiations with Allen Brown, Superintendent of Schools for the Town of Canton, the Petitioner indicated that he wished to participate in the RetirementPlus Program. Superintendent Brown indicated that the Petitioner could indeed enroll in the program (testimony of the Petitioner).

9. The Petitioner did not return an election form to the Teachers' Retirement System and took no action whatsoever with respect to enrolling in the RetirementPlus Program prior to July 1, 2001 (testimony of the Petitioner).

10. When the Petitioner received his first paycheck from the Canton Public School System in late July of 2001, he noticed that the additional contributions required by the RetirementPlus Program were not deducted from his compensation (Exhibit 4).

11. On August 7, 2001, the Petitioner wrote to the Teachers' Retirement System and requested that he be allowed to elect into the RetirementPlus Program (Exhibit 4).

12. On September 17, 2001, the Teachers' Retirement System sent the Petitioner formal notification that his request to be allowed to participate in the RetirementPlus Program had been denied as he had not filed his election form prior to the statutory deadline (Exhibit 5).

13. On September 24, 2001, the Petitioner filed a timely request of this denial with the Contributory Retirement Appeal Board (Exhibit 9).

14. A hearing in this matter was scheduled for September 12, 2002 before the Division of Administrative Law Appeals (DALA) and notice was sent to the parties including the Petitioner as to the date, time, and place of the hearing. The Petitioner did not appear at the hearing scheduled for September 12, 2002 (testimony of the Petitioner, Exhibit 6).

15. An Order to Show Cause Why The Appeal Should Not be Dismissed for Want of Prosecution was sent to the Petitioner on November 25, 2002, giving him ten days to present sufficient evidence of good cause for his failure to appear at the hearing. This Order to Show Cause was signed by First Administrative Magistrate Kimberly A. Fletcher (Exhibit 6).

16. The Petitioner did not respond to the Order to Show Cause and on December 9, 2002, an Order of Dismissal, also signed by First Administrative Magistrate Fletcher, was issued in this matter, dismissing his appeal with prejudice (Exhibit 6A).

17. In late December of 2002, the Petitioner called DALA and spoke with First Magistrate Fletcher who informed him that his appeal had been dismissed (testimony of the Petitioner).

18. On June 12, 2006, the Petitioner wrote to the Teachers' Retirement System again requesting that he be permitted to participate in the RetirementPlus Program (Exhibit 7).

19. On September 22, 2006, the Teachers' Retirement System sent the Petitioner a formal denial of his request to participate in the RetirementPlus Program (Exhibit 1).

20. The Petitioner filed a request for a hearing with the Contributory Retirement Appeal Board that was stamped as received on September 25, 2006 (Exhibit 2).

CONCLUSION

At the outset of the hearing, Counsel for the Respondent filed a Motion to Dismiss for Lack of Jurisdiction on the basis that the Petitioner's appeal concerning the denial of his request to participate in the RetirementPlus Program had been dismissed with prejudice.

The current appeal is based on the exact same issue as the previous appeal filed by Mr. McDeed on September 24, 2001. A hearing was scheduled before DALA in this matter on September 12, 2002. Mr. McDeed failed to appear at the hearing and an Order to Show Cause was issued on November 25, 2002. When Mr. McDeed did not respond to the Order to Show Cause, an Order of Dismissal was issued on December 9, 2002. At the hearing, the Petitioner testified that he did not receive notice of the hearing scheduled for September 12, 2002, the subsequent Order to Show Cause, and the Order of Dismissal issued on December 9, 2002. He acknowledged, however, that he has been living at the same single family residence for the past twenty years and that he has not experienced any unusual problems receiving his mail. Counsel for the Petitioner argued that since the Petitioner did not receive the Notice of Hearing scheduled for September 12, 2002 or the Order to Show Cause, his failure to appear at the hearing as well as his failure to respond to the Show Cause Order should not prejudice his right to have a full adjudicatory hearing before DALA.

Notwithstanding the Petitioner's argument, I conclude that the Petitioner's appeal of the issue of his eligibility for participation in the RetirementPlus Program was properly dismissed with prejudice in December of 2002. I do not find the Petitioner's testimony to the effect that he did not receive the Notice of Hearing, the Order to Show Cause, and the Order of Dismissal to be credible. All three documents were mailed to Mr. McDeed at his home address in Attleboro, MA, the same address he has had for the past twenty years and none were returned by the US Post Office as undeliverable. It is reasonable to assume that Mr. McDeed received these three documents and, for whatever reason, chose not to appear at the hearing and not to respond to the Order to Show Cause. Moreover, the Petitioner testified that he called First Magistrate Kimberly Fletcher in late December of 2002. If he had not received the Order of Dismissal dated December 9, 2002 signed by First Magistrate Fletcher, he would not have known to whom to inquire as to the status of his claim of appeal.

Since the Petitioner's claim of appeal on the exact issue raised in the current appeal was dismissed with prejudice in December of 2002, the doctrine of res judicata, which bars relitigation of a claim previously decided, applies in this case. For the foregoing reasons, the Respondent's Motion to Dismiss for Lack of Jurisdiction is hereby granted.

Assuming, for argument's sake, that the Petitioner is entitled to an adjudicatory hearing regarding his claim that he was improperly denied enrollment in the RetirementPlus Program, I conclude that he is not eligible to participate in the RetirementPlus program as he did not file a RetirementPlus enrollment form prior to the statutory deadline date of June 30, 2001.

G.L. c 32 § 5(4)(i) provides in pertinent part that:

Notwithstanding the provisions of this chapter…there is hereby established an alternative superannuation retirement benefits program for members of the teachers' retirement system and teachers who are members of the State-Boston retirement system. Participation in said program shall be mandatory for all teachers hired on or after July 1, 2001. Any member of the teachers' retirement system …before July 1, 2001, may elect to participate in the alternative superannuation retirement benefit program. Said Election shall be made on or after January 1, 2001 and before July 1, 2001… Any member of a contributory retirement system who transfers into the teachers' retirement system or transfers into the State-Boston retirement system as a teacher may elect to participate in the alternative superannuation retirement benefit program; provided, that said Election shall occur within 180 days of establishing membership in the teachers' retirement system or the State-Boston retirement system… (emphasis supplied).

The Petitioner testified that at the time he accepted his current position with the Canton Public School System in April of 2001, he discussed with the Superintendent of Schools his desire to enroll in the RetirementPlus Program. The Petitioner further testified that he assumed that the Superintendent had taken all the steps necessary to enroll him (McDeed) in this enhanced benefit program. Although Mr. McDeed may have intended to participate in the RetirementPlus Program, the evidence is clear that he did not return a completed Election Form prior to the deadline date of June 30, 2001. As such, he failed to meet the statutory requirement for eligibility for participation in RetirementPlus.

Unfortunately, G.L. c. 32 contains no provision for compassion. While we may empathize with the Appellant's situation, we have been unable to locate any statutory or case law indicating that the Board has the authority to employ an equitable remedy in the face of specific statutory language contrary to the position fostered by the Appellant. CRAB's Decision on Request for Reconsideration, Adolph Petrillo v. PERA, CR-92-731 (10/22/93). See Bryan McSheffrey v. Teachers' Retirement System, CR-01-816 (DALA dec. 6/25/02; no CRAB dec.) where on June 26, 2001, the Petitioner left his RetirementPlus Election Form in his mailbox along with some other bills before leaving on a cross-country trip. Upon returning from the trip on July 14, 2001, the Petitioner discovered that the outgoing mail he had left in his mailbox was still there. He then took the RetirementPlus envelope to the post office and mailed it. In McSheffrey, it was held that the Petitioner's failure, albeit understandable, did not toll the statutory deadline.

Based on the foregoing, the Respondent's Motion to Dismiss the Petitioner's Appeal for Lack of Jurisdiction is hereby allowed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: May 9, 2008


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