Decision  Brownlee, Charles v. State Board of Retirement (CR-14-449)

Date:	12/07/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-14-449

• Petitioner: Charles Brownlee
• Respondent: State Board of Retirement
• Appearance for Petitioner: Charles Brownlee
• Appearance for Respondent: Melinda E. Troy, Esq
• Administrative Magistrate: Bonney Cashin

Summary of Decision

From 2007 through 2013, the Petitioner worked over 960 hours per year in violation of G.L. c. 32, § 91(b). The Respondent Board did not abuse its discretion when it denied the Petitioner’s application for a waiver of repayment. See G.L. c. 32, § 20(5)(c)(3).

Decision

Introduction

On September 5, 2014, Charles Brownlee timely appealed under G.L. c. 32, § 16(4) the September 2, 2014 decision of the State Board of Retirement, which denied his requested waiver of repayment of $169,227.23 in excess earnings as a retiree.

On February 12, 2018, the parties notified the Division of Administrative Law Appeals that they had no objection to having the appeal decided without a hearing under 801 CMR 1.01(10)(c). From the parties’ written submissions, I have admitted 12 exhibits. Exhibits 1-10 are as described in the Respondent’s prehearing memorandum dated October 26, 2017. Exhibit 11 is an email concerning Medicare Part B in Petitioner’s filing dated January 6, 2018. Exhibit 12 is three pages concerning a Verification of Previous State Employment form.

FINDINGS OF FACT

Based upon the evidence in the record and the reasonable inferences from it, I make the following findings of fact:

1. The petitioner Charles Brownlee, a member of the State Board of Retirement, retired from the Massachusetts Trial Court on January 31, 2005. (Ex. 2.)
2. In 2005, he accepted a part-time fall semester teaching position with Westfield State College in its Criminal Justice satellite program at Worcester State College. (Exs. 2, 4.)
3. In the summer of 2005, he met with an employee of Westfield State’s Human Resources Department. Mr. Brownlee told the employee that he was retired from state service. She enrolled him in an “Optional Retirement Program,” which was an error later corrected. (Ex. 2.)
4. Before the school year began, Mr. Brownlee accepted a full-time teaching position for 2005-2006. (Exs. 2, )
5. The Worcester State Criminal Justice program became separate from the program at Westfield State beginning in the 2006 fall semester. (Exs. 2, 4.)
6. Mr. Brownlee was transferred onto the Worcester State payroll without any involvement from its HR department. (Ex. 2.)
7. On July 19, 2006, Mr. Brownlee signed a release allowing Westfield State to complete a “Verification of Previous State Employment” form to be returned to Worcester State. (Ex. 12.)
8. In 2008 and 2010-2013 Mr. Brownlee submitted a Health Insurance Responsibility Disclosure form to payroll at Worcester State. On four of the five forms he wrote a note that he was a state retiree. (Exs. 2, 3.)
9. Mr. Brownlee began receiving Social Security benefits after October, 2010. He was told by payroll that he must enroll in Medicare Part B because he was receiving health insurance through the Commonwealth as a retiree. (Ex. 11.)
10. Mr. Brownlee ceased teaching in September 2013. (Ex. 7.)
11. In late December 2013, the Board notified Mr. Brownlee that he had worked at Worcester State in excess of the number of hours allowed for a state retiree. (Ex. 4.)
12. When he was hired by Westfield State, Mr. Brownlee was aware of salary limitations for state retirees and calculated that he fell under the limit, but he was not aware there was a limit on the number of hours one could work. (Exs. 2,4.)
13. The Board calculated Mr. Brownlee’s excess earnings in accordance with Public Employee Retirement Administration Commission memo No. 28, issued in 2011. (Exs. 7, 8, 9, 10.)
14. Neither Westfield State nor Worcester State sought recovery of Mr. Brownlee’s excess earnings. (Ex. 5.)
15. Mr. Brownlee sought a waiver of payment of the excess earnings. (Ex. 4.)
16. On September 12, 2014, the Board notified Mr. Brownlee that in calendar years 2007-2013 he had worked in excess of the hours allowed under G.L. c. 32, § 91(b) and his overearnings totaled $169,227.23. The Board also notified him that it voted to deny his waiver request. (Exs. 1, 7.)
17. Mr. Brownlee filed an appeal with DALA on September 5, 2014. (Ex. 2.)

Discussion

Generally, retired state employees in Massachusetts may not be “paid for any service rendered to the commonwealth or any county, city, town, or district.” G.L. c. 32, § 91(a). Retired state employees who wish to work for a public entity in the Commonwealth may do so, but are subject to limits on their hours and earnings. G.L. c. 32, § 91(b). They may not work more than 960 hours per year and must limit earnings to an amount that, when added to their retirement allowance, does not exceed the current salary for the position from which they retired. Id.; Kemp v. Boston Ret. Bd., CR-14-561 (Contributory Ret. App. Bd., Oct. 18, 2017).

If a retiree earns more than the amount allowed under c. 32, § 91(b), he may be required to repay the excess earnings to his employer or the retirement system. G.L. c. 32, § 91(c). Where neither Westfield State nor Worcester State wished to recoup Mr. Brownlee’s excess earnings, the Board properly sought to do so under G.L. c. 32, § 20(5)(b). Flanagan v. Contributory Ret. App. Bd., 51 Mass. App. Ct. 862, 868 (2001) (retirement board may enforce c. 32, § 91(c) by recouping excess earnings). The Board calculated Mr. Brownlee’s excess earnings to be $169,227.23.  Mr. Brownlee does not dispute the amount he owes, rather he contends the Board should have allowed his waiver request.

A retirement board may waive repayment or recovery of excess earnings under G.L. c. 32, § 20(5)(c)(3) if:

1. the error in any benefit payment or amount contributed to the system persisted for a period in excess of one year;
2. the error was not the result of erroneous information provided by the member or beneficiary; and
3.  the member or beneficiary did not have knowledge of the error or did not have reason to believe that the benefit amount or contribution rate was in error.

Mr. Brownlee’s excess earnings continued from 2007 to 2013. Mr. Brownlee, who was aware of the earnings limitation, took steps to ensure he did not run afoul of it. He did not know that he needed to limit the number of hours he worked as well until told so by the Board in 2013, after he had left his teaching position. The waiver requirements are satisfied; the Board therefore, had the discretion to waive repayment.

The Board is not required to waive repayment, however, even if the threshold requirements are met. Moonoogian v. Teachers’ Ret. Bd., CR-04-565 (Div. Admin. Law App., Jan. 6, 2006). Given the discretionary nature of the Board’s authority, a review of its decision by the Contributory Retirement Appeal Board (and DALA) is limited to whether the Board abused its discretion. Bristol Cty. Ret. Bd. v. Contributory Ret. App. Bd., 65 Mass. App. Ct. 443, 451 (2006).¹ Mr. Brownlee has not shown that the Board abused its discretion in any way. 

Mr. Brownlee argues that he repeatedly told individuals at Westfield State and Worcester State about his retirement status and no one told him that he was, essentially, unable to work full time. Nothing in the record suggests any bad faith or knowledge on his part of the limitation on hours worked.  Nonetheless, neither the colleges nor the Board, for that matter, were required to notify Mr. Brownlee of the retirement law’s limitations on excess earnings, including the limitation on the number of hours worked---the law itself serves that function. Stebbins v. Mass. Teachers’ Ret. Sys., CR-16-205 (Div. Admin Law App., Jan. 3, 2018). The Board’s decision is affirmed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

____________________________________________

Bonney Cashin
Administrative Magistrate

DATED: December 7, 2018

¹ In Bristol, the Appeals Court questioned whether the retirement board’s decision under c. 32, § 20(5)(c)(3) is reviewable by CRAB. Assuming it was, the Appeals Court determined that review is limited to whether the board abused its discretion; CRAB may not substitute its judgment for that of the board. Bristol at 451-452. Since Bristol was decided, DALA has reviewed a retirement board’s decision on a waiver request for evidence of an abuse of discretion and found none. See e.g., Stebbins v. Massachusetts Teachers’ Ret. Sys., CR-16-205 (Div. Admin. Law App., Jan. 3, 2018), Perez v. Boston Ret. Sys., CR-17-253 (Div. Admin. Law App., Oct. 20, 2015), Edwards v. Middlesex County Ret. Sys., CR-12-598 (Div. Admin. Law App., Jan.18, 2013), Moonoogian v. Teachers’ Ret. Bd. In Kemp v. Boston Ret. Bd., CR-14-561(Contributory Ret. App. Bd., Oct. 18, 2017), DALA had reversed the retirement board’s decision that Kemp had excess earnings in 2005 and 2006 because the magistrate found that a “critical teaching shortage” existed in those years and so the earnings limitations in c. 32, § 91(b) did not apply to Kemp. CRAB reversed, holding that Kemp’s full excess earnings must be repaid because no critical shortage determination had been made by the Department of Education (now the Department of Elementary and Secondary Education) in 2005 and 2006, as required under G.L. c. 32, § 91(e). Kemp further argued that the retirement board must obtain a Superior Court judgment before recouping excess earnings. CRAB disagreed, concluding that such a requirement would undermine the board’s broad authority under c. 32, § 20(5)(b). CRAB continued: “Decisions concerning whether to waive recoupment of funds owed to a retirement board are placed within the discretion of the retirement board under G. L. c. 32, § 20(5)(c)(3) and are not reviewable…”, citing Bristol at 444, 451-452.

I view CRAB’s statement in the context of the holding in Bristol and DALA’s prior decisions. I do not consider CRAB to be enunciating a different understanding of the reviewability of a board’s decision under c. 32, § 20(5)(c)(3)than that expressed previously. In this case, where I find no abuse of discretion, I follow other decisions that have examined a board’s action for abuse of discretion.