COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Scott Fournier,

Petitioner

v. CR-07-570

Bristol County Retirement Board,

Respondent

Appearance for Petitioner:

Valerie McCormack, Esq.

67 Batterymarch Street
Boston, MA 02110

Appearance for Respondent:

Lane Rideout, Esq.

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

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

The Petitioner was not entitled to retire pursuant to the provisions of G.L. c. 32, § 28N as he did not perform services as a county correction officer for a period of not less than twenty years as required by the statute.

DECISION

Pursuant to G.L. c. 32, §16(4), the Petitioner, Scott Fournier, is appealing the July, 2, 2007 decision of the Respondent, Bristol County Retirement Board, denying his application for retirement pursuant to the provisions of G.L. c. 32, § 28N (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32, §16(4).

Pursuant to the provisions of 801 CMR 1.01 (10)(c), the parties agreed to submit the case on written submissions and to waive a hearing. On December 17, 2008, the parties submitted a Joint Memorandum of Agreed Upon Facts and Proposed Exhibits. On that same date, the Respondent also submitted a written argument. On December 23, 2008, the Petitioner submitted a written argument. The record was closed on December 23, 2008.

The following exhibits are now marked into evidence:

1. 7/2/07 Decision Letter of Respondent

2. 7/30/07 Letter of Appeal

3. 1/11/08 Letter From Attorney Condon to Attorney Sacco

4. 3/27/92 Memo from the Bristol County Sheriff's Office to the Bristol County Commissioners

5. 3/31/92 Bristol County Commissioners meeting minutes

6. 5/5/92 Bristol County Commissioners meeting minutes

7. 2/28/08 Letter from Attorney Sacco to Attorney Condon

8. 6/30/08 Letter from Attorney McCormack to PERAC

9. 7/2/08 Letter from PERAC to Attorney McCormack

10. 7/23/08 Letter from the Bristol County Retirement System to Attorney Sacco

11. 8/4/08 Letter from Attorney Sacco to PERAC

12. 11/24/08 Letter from Attorney Sacco to PERAC

FINDINGS OF FACT

The parties agreed to the following stipulations which I hereby adopt as findings of fact No. 1 - 9:

1. The Petitioner, Scott Fournier, d.o.b. 1/7/64, commenced employment as a Corrections Officer with the Bristol County Sheriff's Department on January 24, 1988.

2. The Petitioner, along with three other Corrections Officers, was discharged on April 14, 1990. The Petitioner and the other Corrections Officers filed claims for arbitration with respect to their respective discharges. Following settlement negotiations, an agreement was reached whereby the Petitioner and the other Corrections Officers were reinstated to their positions. The settlement agreement provided for reinstatement, an award of back pay (offset by money earned during the period), and restoration of vacation, personal time benefits, and sick leave for the period of April 14, 1990 through February 2, 1992.

3. In or around the first half of 2007, the Petitioner requested that the Bristol County Retirement Board allow him to purchase creditable service for the period between April 14, 1990 and February 2, 1992 as he wished to retire from service under the provisions of G.L. c. 32, § 28N. The Board requested that the Petitioner provide documentation pertaining to the settlement and/or judgment which resulted in his reinstatement, but he was unable to provide any documentation.

4. The Board denied the Petitioner's request for creditable service by letter dated July 2, 2007, which was received by Mr. Fournier on July 16, 2007. The denial letter noted the Board's position that the creditable service the Petitioner requested did not qualify as creditable service for purposes of regular superannuation retirement or for purposes of retirement under the provisions of G.L. c. 32, § 28N.

5. On July 30, 2007, the Petitioner filed an appeal with the Contributory Retirement Appeal Board of the Board's denial of his request for creditable service for purposes of both superannuation retirement and retirement pursuant to G.L. c. 32, § 28N.

6. By letter dated January 11, 2008, the Petitioner's counsel provided the Board's Counsel with a Memorandum from the Bristol County Sheriff's Office to the Chairman of the Bristol County Commissioners, dated March 27, 1992, which outlined the important provisions of the settlement agreement. As a result of this additional information from the Petitioner, the Board voted on February 27, 2008 to grant creditable service to the Petitioner for the period of April 14, 1990 through February 2, 1992 contingent upon the receipt of appropriate deductions which would have been withheld from the Petitioner's regular compensation during said period.

7. By letter dated February 27, 2008, the Board's counsel notified the Petitioner's counsel of its decision to grant Mr. Fournier the creditable service he requested. The Board did not take any formal position with respect to whether this creditable service would be considered for purposes of G.L. c. 32, § 28N.

8. By letter dated August 4, 2008, Counsel to the Bristol County Retirement Board requested an advisory opinion from the Public Employee Retirement Administration Commission (PERAC) as to whether the Petitioner was eligible to retire pursuant to G.L. c. 32, § 28N. Although the Board sent a second inquiry to PERAC by letter dated November 24, 2008, to date, no response has been received to either request for an advisory opinion.

9. On December 16, 2008, the Parties informed DALA that they wished to waive their right to a hearing and to have the appeal determined by written submissions.

CONCLUSION

G.L. c. 32, §28 N provides in pertinent part:

Notwithstanding the provisions of sections one to twenty-eight, inclusive, to the contrary, any correction or jail officer employed by county sheriffs' offices who has performed services in said office for not less than twenty years shall, at his own request, be retired by said retirement board. Upon retirement under the provisions of this section a member shall receive a retirement allowance to become effective on the date of his retirement. Payments under such allowance shall be made as provided for in sections twelve and thirteen and the normal yearly amount thereof shall be equal to one-half of the annual average rate of his regular compensation during the twelve-month period of his creditable service immediately preceding the date his retirement allowance becomes effective …." (Emphasis supplied.)

The Petitioner contends that he should be eligible for retirement benefits pursuant to the provisions of G.L. c. 32, § 28N for several reasons. Mr. Fournier notes that it is not disputed that, absent his wrongful termination, he would have been eligible to retire under the provisions of G.L. c. 32, § 28N as he would have had the twenty years of service required by the statute for retirement under that section. He further notes that the arbitration settlement reinstated him and awarded him back pay, vacation, personal time, and sick leave for the entire period that he was out of work between April 14, 1990 and February 2, 1992. Although the Bristol County Retirement Board initially denied the Petitioner creditable service for the period of time from the date of his termination, April 14, 1990, to the date of his reinstatement, February 2, 1992, the Board subsequently awarded him this creditable service upon payment of the deductions that would have been taken from his regular compensation during the period. The Petitioner argues that to deny him retirement under the provisions of G.L. c. 32, § 28N on the grounds that he is not entitled to use the creditable service he was granted for the period of April 14, 1990 through February 2, 1992 would be contrary to the spirit of the arbitration settlement agreement which provisions were explicitly designed to make him whole, i.e., to place him in the same position as he would have been had the termination never occurred.

The Bristol County Retirement Board maintains that the Petitioner is not entitled to use the creditable service he was awarded for the period between April 14, 1990 and February 2, 1992 to qualify for retirement under G.L. c. 32, § 28N, as that statute requires that in order to be eligible for benefits a correction officer must have "performed services in said office for not less than twenty years." The Board notes that the Petitioner was hired on January 24, 1988 and was terminated effective April 14, 1990. Following a 1992 settlement agreement, he was reinstated to his position as Correction Officer with back pay, vacation and personal time benefits, as well as sick leave. The Board maintains that at the time the Petitioner requested that he be eligible to retire under the provisions of G.L. c. 32, § 28N, he did not meet the statutory requirement of twenty years of performance of services.

In support of its position, the Board cites the case of Perron v. State Board of Retirement, CR-05-351 (DALA, July 25, 2005) (CRAB, March 5, 2006). In Perron, a Correction Officer with the Massachusetts Department of Correction requested that he be allowed to include the three years of creditable service he purchased for military service to his 17.5 years of work as a Correction Officer, thus giving him the requisite twenty years to qualify for the retirement benefits afforded by G.L. c. 32, § 28M. Section 28M provides an enhanced retirement benefit for those who have performed services in the state department of correction for not less than twenty years while Section 28N provides the same benefit to county correction or jail officers. The decision by DALA and affirmed by CRAB in Perron held that Officer Perron was not eligible for retirement pursuant to G.L. c. 32, § 28M in that he had not yet performed services in the Massachusetts Department of Correction for twenty years.

After reviewing the evidence in this case, I conclude that the Petitioner is not entitled to include the creditable service he was granted by the Bristol County Retirement Board for the period of his wrongful termination from his employment as a correction officer with the Bristol County Sheriff's Department, i.e., April 14, 1990 through February 2, 1992, in calculating the twenty years of services performed in office as required by G.L. c. 32, § 28N.

Section 28N requires that in order to be eligible to receive the enhanced retirement benefit provided under that statute, a member employed by a county sheriff's office as a correction or jail officer must perform services in that position for not less than twenty years.

The rules of statutory construction provide that the statute must be interpreted in accordance with the clear meaning of its words and in accordance with other statutory provisions outlined in G.L. c. 32. The phrase "performed services in said office for not less than twenty years" means that the correction officer must have actually performed the duties of that position for not less than twenty years. In this case, by the terms of the settlement agreement, the Petitioner was restored to his position as a correction officer with back pay and other benefits, i.e., sick leave and vacation leave. He was subsequently awarded creditable service for that period of time. Notwithstanding that fact, Mr. Fournier did not actually perform services as a correction officer during the period that he was terminated from employment. As such, at the time he applied for benefits pursuant to G.L. c. 32, § 28N, he was not eligible under the statute for those benefits as he did not meet the statutory requirement of having performed services as a correction officer for not less than twenty years.

While I empathize with the Petitioner's situation, especially in light of the fact that he was determined to have been wrongfully terminated, nonetheless, I have been unable to locate any statutory or case law indicating that the Bristol County Retirement Board has the authority to employ an equitable remedy in the face of specific statutory language to the contrary. CRAB's Decision on Request for Reconsideration, Adolph Petrillo v. Public Employee Retirement Administration, CR-92-731 (CRAB, 1993).

The decision of the Bristol County Retirement Board in this matter is hereby affirmed. Despite the holding in this decision, if the Petitioner were to perform services as a correction officer with the Bristol County Sheriff's Department for not less than twenty years, he would be eligible for the enhanced retirement benefit provided for under the provisions of G.L. c. 32, § 28N.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Joan Freiman Fink
Administrative Magistrate

Dated: March 19, 2009

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