COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Neil Hansen,

Petitioner

v. Docket No. CR-07-442

State Board of Retirement,

Respondent


Appearance for Petitioner:

Paul K. Donohue, Esq.

Mass. Organ. of State Engrs. & Scientists
90 North Washington St.
Boston, MA 02114

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108

Administrative Magistrate:

Kenneth J. Forton, Esq.

DECISION

The Petitioner, Neil Hansen, appealed timely under G.L. c. 32, § 16(4) the May 31, 2007 decision of the Respondent, State Board of Retirement, to deny the Petitioner termination retirement benefits pursuant to G.L. c. 32, § 10(2). (Ex. 1) I held a hearing on November 13, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. The parties submitted joint stipulations of fact. I admitted seven documents into evidence. (Exs. 1-7) The Petitioner testified on his own behalf. The Respondent called no witnesses. There is one cassette tape of the hearing.

FINDINGS OF FACT

Based on the evidence presented by the parties, I make the following findings of
fact:

1. Neil Hansen, d.o.b. 6/27/48, worked for the Massachusetts Highway Department (MHD) from 1986 to 2007, when he was terminated. (Joint Stipulation.)

2. During his tenure with MHD, Mr. Hansen was a member of the Massachusetts Organization of State Engineers and Scientists (MOSES). (Joint Stipulation.)

3. In December 2006, MHD determined that Mr. Hansen engaged in "conduct constituting a serious breach of Executive Office of Transportation (EOT) and Massachusetts Highway Department (MHD) policy, specifically leaving the scene of an accident involving a department vehicle he was operating without stopping to provide required information, and failing to report same to the Department." (Ex. 3.)

4. On December 6, 2006, MHD, MOSES and Mr. Hansen signed a Last Chance Agreement, in lieu of termination. (Joint Stipulation; Ex. 3.)

5. The Last Chance Agreement provided: "Mr. Hansen shall satisfactorily perform all job-related duties, including complying with all MHD policies and procedures, work rules, etc. . . . He shall accurately maintain his time sheets accounting for all of his time and not leave his assigned work area without accurately completing all appropriate sign-in/out sheets. He shall refrain from consuming alcohol during his MHD workday." (Ex. 3.)

6. The Agreement required Mr. Hansen to participate actively in a substance abuse treatment program. (Ex. 3.)

7. The Agreement further provided for Mr. Hansen's immediate termination if he failed to comply with its requirements for thirty-six months. (Ex. 3.)

8. In the event that MHD terminated Mr. Hansen for violating the terms of the Last Chance Agreement, the Agreement provided a right to an independent review limited to determining whether or not he violated any provisions of the Agreement. (Ex. 3.)

9. During the week of April 16-20, 2007, Mr. Hansen did not report to work and did not provide satisfactory documentation to support the stated reasons for his absence. MHD placed Mr. Hansen on not-on-payroll status for that week. MHD considered this unauthorized absence a breach of the Last Chance Agreement. (Ex. 5.)

10. Mr. Hansen knew that not reporting to work would likely be considered a violation of his Last Chance Agreement. (Testimony.)

11. On April 30, 2007, MHD, MOSES and Mr. Hansen signed a Separation Agreement that explained that he was being terminated based on his non-compliance with MHD policies and procedures, thereby violating the terms of his Last Chance Agreement. Mr. Hansen did not exercise his right to an independent review of MHD's decision to terminate him. (Joint Stipulation; Testimony; Ex. 4.)

12. That same day, Mr. Hansen filed his retirement application with the State Board of Retirement. He requested a termination retirement allowance pursuant to G.L. c. 32, § 10(2). (Joint Stipulation; Ex. 7.)

13. By letter dated May 4, 2007, Christopher J. Groll, EOT Director of Labor Relations notified the Board that Mr. Hansen was discharged from his position "without moral turpitude on his part." (Joint Stipulation; Ex. 6.)

14. At its meeting on May 31, 2007, the Board voted to deny Mr. Hansen's application, and so notified him by a letter dated June 1, 2007. (Joint Stipulation; Ex. 1.)

15. Mr. Hansen filed an appeal of the Board's decision with the Contributory Retirement Appeal Board on June 8, 2007. (Joint Stipulation; Ex. 2.)

16. Mr. Hansen has been receiving a superannuation retirement allowance pursuant to G.L. c. 32, § 10(1) since June 27, 2007. (Testimony.)

CONCLUSION AND ORDER

The decision of the State Board of Retirement is affirmed. Neil Hansen is not entitled to a termination retirement allowance pursuant to G.L. c. 32, § 10(2). Under certain circumstances, a member who is terminated from his position without moral turpitude has the right to a termination retirement allowance, which is larger than a superannuation retirement allowance pursuant to G.L. c. 32, § 10(1). G.L. c. 32, § 10(2)(a) provides, in pertinent part:

Any member who retires under the provisions of this section, who has completed twenty or more years of creditable service and who . . . is removed or discharged from his office or position without moral turpitude on his part, . . . shall receive a normal yearly amount of retirement allowance which shall not be less than the sum of his annuity . . . and a pension equal to a sum of not less than one-third of his average annual rate of regular compensation received during any period of three consecutive years of creditable service for which such rate of compensation was the highest . . . .

However, "[a]ny member who is removed or discharged for violation of the laws, rules and regulations applicable to his office or position, . . . shall not be entitled to the termination retirement allowance provided for in [G.L. c. 32, § 10(2)]." G.L. c. 32, § 10(2)(c).

The Board does not dispute that Mr. Hansen is eligible for a superannuation retirement allowance pursuant to G.L. c. 32, § 10(1), which he has been receiving since June 27, 2007. The Board argues that Mr. Hansen is disqualified from receiving a termination retirement allowance because he was terminated for violating the rules applicable to his position, i.e. violating the terms of his Last Chance Agreement by not reporting to work for a week in April 2007 and failing to provide documentation to excuse the absence.

Mr. Hansen was nearly terminated by his employer, MHD, when his employer determined that he was involved in an auto collision with a department vehicle and left the scene of the accident. Instead of terminating him, after MOSES intervened on his behalf, MHD agreed to enter a stringent, thirty-six-month-long Last Chance Agreement with Mr. Hansen. Only four months after signing the Agreement, Mr. Hansen failed to report to work for an entire week. He never bothered to document the stated reasons for his absence, so he was placed on not-on-payroll status, which was a violation of his Last Chance Agreement. Not reporting to work without a valid excuse was clearly a violation of the Last Chance Agreement and consequently the rules applicable to his position. See Alexander v. State Board of Retirement, CR-99-831 (DALA dec. 9/22/00; no CRAB dec.) (petitioner not entitled to termination retirement allowance where she failed to report to work after a six-week vacation). Therefore, Mr. Hansen is barred from receiving a termination retirement allowance pursuant to § 10(2).

Mr. Hansen argues, without any supporting legal authority, that this violation of his Last Chance Agreement is too minor to be considered a violation of the rules applicable to his position and that he is thus entitled to a termination retirement allowance. First, this argument has no basis in law; § 10(2) makes no distinction between minor and major violations of workplace rules. Additionally, the contributory retirement system is entirely a creation of statute. However attractive, notions of fairness and equity are common law concepts which cannot be employed to create a category of statutory benefit where none exists. Bowman v. Teachers' Retirement Board, CR-90-1093 (DALA dec. 6/15/92; no CRAB dec.); see also Petrillo v. Public Employee Retirement Administration, CR-92-731 (DALA dec. 6/25/93; CRAB dec. 10/22/93) (retirement board has no authority to apply equitable principles in the face of specific statutory language to the contrary).

For the reasons stated above, the decision of the Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Kenneth J. Forton
Administrative Magistrate


DATED: March 12, 2009