COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Leo McHatton, Jr.,

Petitioner

v. Docket No. CR-05-121

Chelsea Retirement Board,

Respondent

For Petitioner:

Frank J. Teague, Esq.

Six Beacon Street, Suite 815
Boston, MA 02108

For Respondent:

Brian P. Monahan, Esq.

MBA Law Group
44 Nashua Road, Suite 15
Londonderry, NH 03053

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Leo J. McHatton, Jr. filed a timely appeal under G. L. c. 32, s. 16 (4) of the February 10, 2005 decision of the Chelsea Retirement System ("Board") to deny, under the provisions of G. L. c. 32. s. 15 (4), his request for a superannuation retirement allowance. (Exs. 1, 2)

The Petitioner elected his right to waive a hearing and have the case handled as a Submission Without a Hearing under 801 CMR 1.01 (10) (c). (Ex. 3) The parties submitted Stipulations of Fact and the Petitioner submitted his Memorandum of Law on March 21, 2008. By letter of March 25, 2008 the Board was given until April 21, 2008 to submit a Memorandum. The record closed on April 4, 2008 with the filing of the Board's Memorandum. I marked documents into evidence. (Exs. 1 - 5) I marked the Petitioner's Memorandum "A" for identification and the Respondent's Memorandum "B" for identification. A list of exhibits appears on the last page of this decision.

STIPULATED FACTS

1. Leo J. McHatton, Jr. became a member of the Chelsea Retirement system on or about January 18, 1972.

2. Mr. McHatton became a member of the City of Chelsea Police Department Reserves on or about October 15, 1974, and a permanent member of the Chelsea Police Department on or about April 28, 1975.

3. In the mid-1980's, Mr. McHatton was promoted to the rank of Captain and was the Commander of the Vice Squad.

4. On or about February 26, 1993, Mr. McHatton was indicted by a Federal Grand Jury on multiple counts, including indictments for filing false income tax returns by failing to report $51,314.36 in income over tax years 1987 through 1991 from work in his electrical and snowplowing businesses.

5. On or about December 2, 1993, Mr. McHatton was sentenced in the U.S. District Court for the District of Massachusetts to serve a one-year sentence in federal prison as a result of his conviction for filing false income tax returns.

6. Mr. McHatton was terminated from his employment with the Chelsea Police Department on December 15, 1993.

7. On or about January 5, 2005, Mr. McHatton filed an Application for Voluntary Superannuation Retirement with the Board.

8. On or about January 27, 2005, the Board reviewed the application, and after discussion voted to deny Mr. McHatton's application.

9. By letter of February 10, 2005, Mr. McHatton was notified of the Board's action. Mr. McHatton appealed. (Exs. 1, 2)

CONCLUSION AND ORDER

This appeal is dismissed because the Contributory Retirement Appeal Board ("CRAB") is without jurisdiction in this matter under G. L. c. 32, s. 16 (4). The Petitioner has a right of appeal to the District Court under G. L. c. 32, s. 16 (3).

Section 16 (3) provides in pertinent part:

[A]ny member who is aggrieved by any action taken or decision of a board or the public employee retirement administration commission rendered with reference to his dereliction of duty as set forth in section fifteen, may, within thirty days after the certification of the decision of the board, bring a petition in the district court in the territorial jurisdiction in which he resides praying that such action and decision be reviewed by the court.

CRAB's jurisdiction under section 16 (4) encompasses "… matters other than those subject to review by the district court as provided for in subdivision (3)." (emphasis supplied) Because the Board's letter of decision did not inform the Petitioner about his appeal rights, the Petitioner has thirty days from receipt of this decision to appeal the Board's decision by "bring[ing] a petition in the district court within the territorial jurisdiction in which he resides praying that such action and decision be reviewed by the court" under G. L. c. 32, s. 16 (3). John Bigos v. Chicopee Retirement Board, CR-00-945 (DALA dec. 5/4/01; CRAB dec. 1/14/02)

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 4/30/08

EXHIBITS

1 Notice of Retirement Board Action, 2/10/05
2 Letter of appeal to CRAB, 2/23/05
3 Petitioner's waiver of hearing, 2/19/08
4 Magistrate to parties, 3/25/08
5 Stipulation of Facts

"A" for identification Petitioner's Memorandum of Law
"B" for identification Respondent's Memorandum of Law


This information is provided by the Division of Administrative Law Appeals .