COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Roger Murphy,

Petitioner

v. Docket No. CR-08-248

State Board of Retirement,

Respondent


Appearance for Petitioner:

Roger Murphy, for himself
6 Winthrop Street
Lynn, MA 01904

Appearance for Respondent:

Crystal Chow, Esq.

State Board of Retirement
One Ashburton Place, Room 1219
Boston, MA 02108

Administrative Magistrate:

Bonney Cashin


DECISION

INTRODUCTION

Roger Murphy timely appeals, pursuant to G.L. c. 32, § 16 (4), the March 28, 2008 decision of the State Board of Retirement to exclude payments to him for part-time employment with the City of Boston as regular compensation for the purpose of calculating his retirement allowance.

Mr. Murphy requested that his appeal be decided based on written submissions in accordance with 801 CMR 1.01 (10) (c); and the parties agreed to waive a hearing. On July 23, 2008, I ordered the parties to submit stipulations of fact, written arguments and proposed exhibits by August 22, 2008. They filed a joint stipulation of facts and a set of agreed-upon exhibits on August 21, 2008. The State Board of Retirement filed written argument on that same date.

The following documents are in evidence:

Exhibit 1: Letter from Kimberly Ransom dated December 27, 2007 with attached
employee earnings report.

Exhibit 2: Letter from Mr. Murphy to State Board of Retirement dated
December 31, 2007.

Exhibit 3: Letter from Kimberly Ransom dated January 7, 2008.

Exhibit 4: Letter from Mr. Murphy to State Board of Retirement dated
February 28, 2008.

Exhibit 5: Letter from State Board of Retirement to Mr. Murphy, dated March 28,
2008.

Exhibit 6: Appeal letter dated April 10, 2008.

FINDINGS OF FACT

I accept the joint stipulation of facts filed by the parties on August 21, 2008. Accordingly, I adopt verbatim the following facts as stipulated by the parties, with my additions as noted in brackets:

1. Mr. Murphy, whose date of birth is October 20, 1947, is employed at the Department of Unemployment Assistance ("DUA") as a Revenue Enforcement Supervisor. He has been a member of the State Employees' Retirement System ("SERS") since March 31, 1974 to present.

2. Mr. Murphy began employment for the Boston Public Schools as a part time Hotline Worker, since July 7, 2004 to June 30, 2008. He was not a member of the Boston Retirement System during this time [because he worked fewer than 20 hours each week. Letter filed by Mr. Murphy dated June 9, 2008.]

3. Mr. Murphy was making contributions to an OBRA-Aetna Company through the Boston Public Schools. He did not make any contributions to the Boston Retirement Board or the State Board of Retirement from his part-time salary as a Hotline Worker.

4. On December 27, 2007, the Board received a letter from Ms. Kimberly Ransom, Principal Account Clerk at Boston Public Schools, with enclosed report of Mr. Murphy's earning from his Hotline position.

5. By letter dated December 31, 2007, Mr. Murphy made a request to the Board [of Retirement] seeking his earnings from his part-time employment be used as creditable service and including with his earnings from DUA for purposes of calculating his retirement benefits.

6. By letter dated February 28, 2008, Mr. Murphy again requested to the Board [of Retirement] that his wages from his part-time employment from the City of Boston be included with his DUA wages for purposes of calculating his retirement benefits.

7. At its March 27, 2008 Board meeting, the Board [of Retirement] met and voted to deny Mr. Murphy's request and so notified him by letter, dated March 28, 2008.

8. On April 10, 2008, Mr. Murphy appealed the Board [of Retirement's] decision to the Contributory Retirement Appeal Board ("CRAB") and CRAB referred the matter to the Division of Administrative Law Appeals ("DALA") for a hearing.

9. On June 9, 2008, Mr. Murphy requested to waive his hearing and have the matter determined by written submission.

CONCLUSION

Mr. Murphy may not use his compensation as a hot-line worker to increase his benefits from the SERS for his work with the DUA. Consequently, the Board of Retirement properly denied his request to include those earnings as part of his retirement allowance.

Section 3 (7) (a) of Chapter 32 provides:

Any person employed by two or more governmental units which have established contributory retirement systems under the provisions of sections one to twenty-eight inclusive, . . . shall, subject to the provisions of such sections, become a member in service of each such system to which he is eligible by reason of his employment in such governmental units and shall receive pensions, retirement allowances or other benefits from each such system according to the applicable provisions of such sections.

Emphasis added.

What this means is that a person's rights to retirement benefits as an employee of two Massachusetts public employers, each having retirement systems governed by Chapter 32, must, at least in the first instance, be determined independently as if the other employment did not exist.

A member's retirement allowance

shall … be based on the average annual rate of regular compensation received by such member during which such rate of compensation was the highest, or on the average annual rate of regular compensation received by such member during the period or periods, whether consecutive or not, constituting his last three years of creditable service preceding retirement, whichever is the greater, and shall be computed according to the following table based on the age of such member and his number of years and full months of creditable service at the time of his retirement.

G.L. c. 32, § 5 (2) (a).

"Regular compensation" means

salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority, not including bonus, overtime, severance pay for any and all unused sick leave, early retirement incentives, or any other payment made as a result of giving notice of retirement ….

G.L. c. 32, § 1. Emphasis added.

Mr. Murphy was employed by two governmental units. He was employed full time at the DUA, as a result of which he is a member of the SERS. His rights to a retirement allowance from the SERS are determined by his regular compensation from the DUA, the "employing authority" for purposes of his membership in the SERS.

Mr. Murphy was also employed by the City of Boston. During his part-time employment with the Boston public school system from July 7, 2004 to June 30, 2008, he was not a member of the Boston Retirement System because he worked fewer than 20 hours each week. Because he was not a member of the Boston Retirement System, he is not entitled to any retirement allowance from that system. As c. 32, § 5 (1) (a) provides, one must be a "member in service" to be eligible for a superannuation allowance.

Mr. Murphy's request that payments to him for part-time employment with the City of Boston be included as regular compensation for the purpose of calculating his retirement allowance from the SERS is denied.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

/s/ Bonney Cashin
Administrative Magistrate


Dated: March 12, 2009