COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss.

Division of Administrative Law Appeals


Kathleen A. Parsons,


Petitioner Docket No: CR-08-160
v.

Norfolk County Retirement System,

Date: 3/5/2010
Respondent

Appearance for Petitioner:

Kathleen A Parsons, pro se


Appearance for Respondent:


Katherine A. Hesse, Esq.
Brian P. Fox, Esq.


Murphy, Hesse, Toomey & Lehane, LLP
300 Crown Colony Drive
Quincy, MA 02169

Administrative Magistrate:

Richard C. Heidlage

SUMMARY OF DECISION

The Petitioner is not entitled to reinstatement into membership as she withdrew her annuity savings account pursuant to G.L. c. 32, § 10(4) upon her termination of employment by a public employer. She has not returned to public service and Chapter 32 does nor permit reinstatement absent such a return to active service. The assertion that the retirement board failed to inform her of all the potential benefits of maintaining her membership by leaving her annuity savings deductions in the system is irrelevant. A retirement board has no obligation under Chapter 32 to inform a member of all potential benefits of such continued membership.

DECISION

This is an appeal pursuant to G.L. c. 32, § 16(4) by the Petitioner Kathleen A. Parsons of the decision of the Respondent Norfolk County Retirement System to deny her the option of reestablishing her membership in the system without returning to active service. The petitioner filed a timely notice of appeal.
This matter was noticed for hearing on March 3, 2010. On March 1, 2010 the Respondent filed Motions to Dismiss and for Summary Disposition. At the hearing, I denied the motions on the ground that were filed too late. I held an evidentiary hearing on March 3, 2010 at the offices of the Division, 98 North Washington Street, Boston, Massachusetts. I received 14 documents into evidence.

Findings of Fact


1. The Petitioner was employed as a nurse at the Massachusetts Respiratory Hospital (the "Hospital") from November 1, 1980 through February 19, 1998 when the hospital was transferred to private ownership. Testimony; Ex. 3.

2. During the period she was employed by the Hospital through February 1998, the Petitioner was a member of the Norfolk County Retirement System and had annuity savings deductions withheld from her pay. Testimony; Ex. 2.

3. When the Hospital was transferred to private ownership, the Petitioner ceased to be an active member of the retirement system. Testimony.

4. Prior to the transfer of the Hospital to private ownership, the Respondent held information sessions for the employees, the purpose of which was to inform employees of their options with regard to retirement benefits once they were no longer employed by the Hospital. Testimony.

5. There is no record of what information was provided to the employees. Testimony.

6. At the time of termination of her employment by the Hospital, the Petitioner had 17 years and 1 month of creditable service. She was 49 years old. Testimony.

7. At the time of her termination, the Petitioner had a telephone conversation with the then Executive Director of the Retirement System. There is no written record of the contents of that conversation.

8. On June 24, 1998, the Petitioner submitted an Application for Withdrawal of Accumulated Total Deductions. Ex. 3 In the application, the Petitioner acknowledged:

I understand that in consideration of the return of said amount, my membership in the Retirement System shall terminate and all rights and privileges to which I was entitled as a member of the Retirement System are hereby surrendered, including . . . eligibility to receive a retirement allowance upon completion of 10 years of service and upon attaining age 55.Ex. 3.

9. The retirement system does not provide health insurance to retirees. Some, but not all, employers that participate in the retirement system provide health insurance to their former employees who are retired. Testimony.

10. The retirement board returned the Petitioner's annuity savings deductions plus interest pursuant to G.L. c. 32, § 10(4). Exs. 3, 4, and 5.

11. At no time after she withdrew her annuity savings deductions has the Petitioner been employed by a Massachusetts public employer subject to Chapter 32 of the General Laws.

12. On February 17 and June 29, 2007 the Petitioner requested that the retirement board permit her to reestablish her membership in the system. Exs. 6 and 7.

13. The Petitioner denied the request on February 27, 2008 and informed the Petitioner of its decision on February 28, 2008. Exs. 8 and 9.

14. By letter of March 8, 2008, the Petitioner appealed to the Contributory Retirement Appeal Board. Ex. 10.

CONCLUSION AND ORDER


The Petitioner is not entitled to prevail in this appeal. There is no dispute that the Petitioner requested a return of her annuity savings deductions pursuant to G.L. c. 32, § 10(4). That section provides:

Any member not entitled to a retirement allowance in accordance with the provisions of sections one to twenty-eight inclusive, or any member entitled to a retirement allowance as provided for in this section whose allowance has not become effective, shall be paid the amount of his accumulated total deductions as provided for in subdivision (1) of section eleven upon his written request therefor on a prescribed form filed with the board on or after the date of his termination of service, except as provided for in section 11 or section fifteen.

The return of a member's annuity savings deductions is not discretionary with the retirement board. Moreover, absent some affirmative misrepresentation, neither the retirement board nor its staff has any duty to inform a member of benefits to which he or she might become entitled outside the retirement system. The board's obligations to members are purely statutory and set out under G.L. c. 32, § 20. Under § 20(5)(k), the board is required to furnish each member or his or her representative, on request, a statement of the benefits to which the member may be entitled under Chapter 32, the dates on which the benefits will accrue, and the effect of the benefits on federal Social Security. Other than that, there is no duty to provide information to a member.

Accordingly, whether or not the retirement board informed the Petitioner that, if she gave up her rights to a future pension, she would forego the opportunity for having the county pay for her post-retirement health care is irrelevant.
The appeal is hereby dismissed.

SO ORDERED.
DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Richard C. Heidlage
Acting Chief Administrative Magistrate

March 5, 2010