Decision  Barnstable County Retirement Board v. PERAC, CR-07-163 (CRAB, 2008)

Date:	12/23/2008
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-07-163

• Petitioner: Barnstable County Retirement Board
• Respondent: Public Employee Retirement Adminstration Commission

Decision

Respondent Public Employee Retirement Administration Commission (PERAC) has moved to dismiss this case on jurisdictional grounds, namely, that petitioner Barnstable County Retirement Board (the Barnstable board) did not file its appeal within fifteen days of the PERAC decision the Barnstable board seeks to appeal as required by G. L. c. 32, § 16(4). The Division of Administrative Law Appeals (DALA) denied PERAC's motion. For the reasons stated below, we reverse and dismiss the current case.

DALA heard the matter on July 11, 2007, and admitted eight exhibits. The DALA decision is incorporated by reference and its findings of fact 1-15 are adopted as our own.

Under G. L. c. 32, § 16(4), "any person when aggrieved by any action taken or decision of . . . [PERAC] rendered, or by the failure of . . . [PERAC] to act, may appeal to the contributory retirement appeal board by filing therewith a claim in writing within fifteen days of notification of such action or decision . . ., or may so appeal within fifteen days after the expiration of the time specified in sections one to twenty-eight inclusive, within which . . . the commission must act upon a written request thereto, or within fifteen days after the expiration of one month following the date of filing a written request with . . . [PERAC] if no time for action thereon is specified, in case . . . [PERAC] has failed to act thereon within the time specified or within one month, as the case may be."

By letter dated July 11, 2006, PERAC notified the Barnstable board that the board's calculation of a member's superannuation retirement allowance, which had been submitted to PERAC for review, was incorrect. ¹ The Barnstable board did not file an appeal from PERAC's action or decision within fifteen days of notification. Rather, on January 9, 2007, the Barnstable board, through its counsel, wrote PERAC's general counsel concerning the calculation issue. ² In response, PERAC stated that its "position remains as stated in . . . [the] letter of July 11, 2006." ³ The Barnstable board did not file an appeal from this response within fifteen days of its receipt on January 31, 2007. ⁴ Rather, the Barnstable board filed an appeal on February 26, 2007 "over PERAC's determination of what methodology to employ for [the member's] superannuation calculation." ⁵

If either of PERAC's letters constituted an action or decision within the meaning of G. L. c. 32, § 16(4), then the Barnstable board's appeal, not having been filed until February 26, 2007, must be dismissed for lack of jurisdiction. The Barnstable board objects that neither PERAC letter notified it of the fifteen-day appeal period. Unfortunately, however, § 16(4) does not require such notice to trigger the running of the appeal period. ^6,7

The Barnstable board also suggests that "the correspondence [from PERAC] does not reflect that the letter represents a decision of or action by [PERAC]. Without such language, or at the very least a statement by staff that they are of the opinion that its actions constitute an appealable decision, the [fifteen] days [do] not run." ⁸ This point has not been sufficiently developed by the parties for us to rule on it. But no such ruling is required to say that, even accepting it arguendo does not save the current action.

If neither PERAC letter constitutes an action or decision under G. L. c. 32, § 16(4), then PERAC has not taken an action or made a decision from which an appeal to us is may be taken. Possibly, although the Barnstable board does not argue the point and we do not decide it, PERAC's inaction itself triggered that board's appellate rights. But this possibility does not help the Barnstable board. At the latest, it had until February 24, 2007, within which to file a notice of appeal from PERAC's hypothetical failure to act on the board's written request of January 9, 2007. The Barnstable board did not file its appeal, however, until February 26, 2007.

Alternatively, although again the Barnstable board does not argue the point and we do not decide it, neither of the board's letters to PERAC triggered any response obligation on the part of PERAC. If so, however, then PERAC has not failed to do anything from which the Barnstable board may appeal.

However we look at this case, therefore, we lack subject matter jurisdiction: either an applicable appeal period has run or PERAC has not done anything, or failed to do anything, from which an appeal is yet possible. According, the DALA decision is vacated and the case is dismissed.

SO ORDERED
CONTRIBUTORY RETIREMENT APPEAL BOARD

/s/
Joseph I. Martin
Public Employee Retirement Administration Commission Appointee

Vacant
Governor's Appointee

/s/
David A. Guberman
Assistant Attorney General
Chairman
Attorney General's Appointee

Date: December 23, 2008

 

1. DALA Finding of Fact 9.
2. Id., Finding of Fact 10.
3. Id., Finding of Fact 11 (ellipses and bracketed insertion by DALA).
4. Id.
5. Id., Finding of Fact 13.
6. Compare G. L. c. 30A, § 11(8) (requiring that agencies conducting adjudicatory proceedings notify parties to their proceedings "of their rights to review or appeal the decision").
7. Because we must take the statute as we find it, the Barnstable board's suggestion of the untoward consequences resulting from enforcing the fifteen-day rule is more properly directed to the Legislature than to us.
8. Opposition of the Petitioner to the Respondent's Motion to Dismiss at 3.