COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Audrey Ely,

Petitioner

v. CR-07-91

State Board of Retirement,

Respondent

Appearance for Petitioner:

Carol Nessen, Esq.,

160 Gould Street, Suite 100
Needham, Ma. 02494

Appearance for Respondent:

Dennis Kirwan, Esq.

State Board of Retirement
One Ashburton Pl. - Rm. 1219
Boston, Ma. 02108


Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Audrey Ely, is appealing the January 26, 2007 decision of the Respondent, State Board of Retirement, denying her request for reinstatement into the State Employees' Retirement System (Exhibit 8). 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 January 23, 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 -13). The Petitioner's Pre-hearing Memorandum containing was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" 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, Audrey Ely, d.o.b.12/11/50, commenced employment as a clinical social worker with the Department of Mental Health (DMH) on July 29, 1973. She was assigned to work at an inpatient unit of the Medfield State Hospital (testimony of the Petitioner).

2. Upon commencing employment with the DMH in July of 1973, the Petitioner became a member of the State Retirement System (testimony of the Petitioner).

3. The Petitioner subsequently was promoted and assigned to work as a Program Director for Continuing Treatment at the South Shore Mental Health Center (SSMHC) located in Quincy, Ma. (testimony of the Petitioner).

4. In August of 1991, the Commonwealth of Massachusetts decided to privatize state mental health services (testimony of the Petitioner).

5. On or about August 11, 1991, the Petitioner was informed that her state- funded position was being terminated pursuant to the Commonwealth's new policy of privatizing mental health programs. The Petitioner did not receive any written notice of termination. The Petitioner was also informed at that time that there would still be a position available for her in the newly privatized SSMHC (testimony of the Petitioner).

6. On the next day, August 12, 1991, the Petitioner was informed of her bumping rights under civil service law, i.e., that she could elect to bump down into her permanent civil service position of Clinical Social Worker II at Medfield State Hospital (Exhibit 2). The Petitioner elected not to exercise her rights under civil service law to bump into a lower position; rather she chose to stay on at SSMHC in the position of Program Manager (testimony of the Petitioner).

7. The Petitioner was hired by SSMHC on August 19, 1991 as Program Director for Continuing Treatment with the same salary, title, and job duties as she had while she was employed by the DMH (Exhibit 3, testimony of the Petitioner).

8. Upon leaving state employment in 1991, the Petitioner spoke to the Human Resource Director at DMH and inquired as to whether she had any retirement rights. She was informed by a DMH employee that while she had sufficient creditable service to vest in the system, she was not eligible to receive any retirement benefits (testimony of the Petitioner).

9. On November 6, 1992, the Petitioner received from Donna Shelter, Personnel Officer of the DMH a letter informing her that she (Ms. Ely) had fourteen years, five months, and twenty-nine days of state service (Exhibit 4).

10. On February 10, 1993, the Petitioner filed a Withdrawal Notice with the State Board of Retirement requesting that her accumulated deductions be returned to her (Exhibit 6).

11. The text of the form which the Petitioner acknowledged as having read states as follows: "In consideration of such payment, all other rights and privileges to which I was entitled as a member of such Retirement System are hereby surrendered and I understand that upon such payment, any membership in the Retirement System will terminate" (Exhibit 6).

12. The text of this Withdrawal Notice also contains the following acknowledgment: "I understand a member in service subsequent to 12/31/71, who has completed 10 or more years of creditable service and who, before attaining age 55, resigns or voluntarily terminates his service and leaves his accumulated total deductions in the annuity savings fund, shall have the right upon attaining age 55 to apply for a retirement allowance…." (Exhibit 6).

13. The Withdrawal Form further stated that if the Petitioner were to return to active service, she would do so with the status of a new employee not entitled to credit for her previous service, unless she paid before the effective date of her retirement, into the annuity saving fund of the retirement system, makeup payments of an amount equal to the accumulated regular deduction withdrawn (Exhibit 6).

14. The Petitioner's accumulated deductions were refunded on March 5, 1993 (Exhibit 6).

15. On January 7, 2007, the Petitioner sent the State Board of Retirement a letter in which she requested that she be reinstated into the State Employee's Retirement System and further that she be allowed to redeposit the accumulated deductions and interest required for her to receive her prior creditable service (Exhibit 7).

16. On January 26, 2007, the State Board of Retirement sent the Petitioner formal notification that it had denied her request for reinstatement of membership had been denied (Exhibit 8).

17. On January 31, 2007, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 1).

CONCLUSION

The decision of the Respondent, State Board of Retirement, denying Ms. Ely's request for reinstatement into the State Retirement System is affirmed. A return of one's accumulated deductions terminates membership in the State Employees' Retirement System and the rights associated therewith. The Petitioner cannot benefit from Section 3 (6) (c) because it provides for the re-entry to service of a former member who returns to work and repays her withdrawn accumulated deductions within two years of her separation from service. At the time of her request for reinstatement, the Petitioner had been a former member for approximately fourteen years. The Petitioner simply has no right under any provision of G.L. c. 32 for reinstatement as a member of the State Retirement System based on the facts and circumstances of this case.

Arguing in her own behalf, the Petitioner asserts that during the late summer and early fall of 1991, the situation involving the privatization of the state's mental health services was somewhat confusing and chaotic and that the flow of information to affected employees was marginal at best. The Petitioner further asserts that at no time was she informed by officials at DMH that she had the option of leaving her accumulated deductions in the retirement system in order that she could receive retirement benefits at some future later date. According to the Petitioner, had she been properly apprised of her rights, she would not have withdrawn her accumulated deductions. Thus, she argues that she should not be now be penalized for what she considers to be a failure of the system to meet its responsibility to inform its members of their rights.

Notwithstanding the Petitioner's argument, the Petitioner never contacted the State Board of Retirement prior to filing her Withdrawal of Accumulated Deductions Form to review her situation. Moreover, the Withdrawal of Accumulated Deductions Form which the Petitioner acknowledged as having read unequivocally states that by withdrawing her accumulated deductions, her membership in the State Retirement System including any rights to retirement benefits would terminate.

Relying on the principle espoused in the Hembrow case, the Petitioner also argues that since she was not aware in 1993 at the time she withdrew her accumulated deductions that she would be eligible at some future date for retirement benefits, she should be permitted to be reinstated as a member of the State Retirement System ( see Hembrow v. State Board of Retirement, CR-1229 (DALA dec. 2/28/78; CRAB dec. 1978).

Notwithstanding the Petitioner's argument, this case may be distinguished from the Hembrow case where the Petitioner, a social worker, told her supervisor that she wished to retire at the end of July 1974. Her supervisor then gave her the necessary forms to complete. Ms. Hembrow completed those forms and returned them to the supervisor. She stopped working at the end of July of 1974. Although many months went by without her receiving any retirement benefits, Ms. Hembrow did not realize that there was a problem as she believed that it was common for retirees to wait a substantial period of time before retirement benefits commenced. In March of 1975, Ms. Hembrow went to the Retirement Board and inquired why her application was taking so long to process. The Board informed her that it had not received her application and gave her a second application to complete. Ms. Hembrow completed this second application and the Board determined her effective date of retirement to be April 14, 1975, or 15 days from the date the Board had received her application. Ms. Hembrow appealed the effective date. In reversing the State Board determination as to the effective date, CRAB stated that Ms. Hembrow believed that she had done all that was required of her to initiate retirement benefits and that the State and the State Board of Retirement must assume responsibility for failures of the system such as this.

In the present case, the Petitioner did not contact anyone from the State Board of Retirement concerning her future retirement rights and benefits prior to February of 1993. In February of 1993, she filed her Withdrawal of Accumulated Deductions Form again without contacting the State Board of Retirement. As previously stated, that form distinctly and accurately sets forth the consequences of withdrawing her deductions including the termination of retirement benefits.

While I emphasize with the Petitioner's situation, 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).

Based on the foregoing, the decision of the State Board of Retirement System denying the Petitioner's request for reinstatement as a member of the State Employees' Retirement System is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

DATED: 3/11/08


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