| Date: | 10/31/2025 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-24-0531 |
The petitioner is a retiree for accidental disability. His retirement board became entitled to a refund from him under the “excess earnings” provision of G.L. c. 32, § 91A. The refund was not eligible to be waived by the board, because the petitioner had “reason to believe” that he was exceeding his statutory earnings cap. Id. § 20(5)(c)(3).
Respondent the Boston Retirement System (board) became entitled to a refund from petitioner Richard Jarvis under the “excess earnings” provision of G.L. c. 32, § 91A. Mr. Jarvis seeks a partial waiver of the amount owing from him. In response to a scheduling order, neither party listed potential witnesses or identified factual disputes. The matter is therefore submitted without a hearing. See 801 C.M.R. § 1.01(7)(h), (10)(c). I admit into evidence exhibits marked 1-17 in the case file.[1]
Findings of Fact
I find the following facts.
Analysis
Retirement allowances under the public retirement law are intended to provide public servants with “security against destitution in their old age.” Opinion of the Justices, 364 Mass. 847, 858 (1973). The point is not for an employee to “retire, receive a pension, accept employment elsewhere . . . and, by combining her pension and her new compensation, make more money than if she had not retired.” Bristol Cty. Ret. Bd. v. Contributory Ret. Appeal Bd. (Polycarpo), 65 Mass. App. Ct. 443, 447 (2006). To prevent this scenario, sections 91 and 91A of chapter 32 impose several types of caps on the income that retirees may earn on top of their allowances.
The cap implicated here is prescribed by section 91A, which applies only to retirees for accidental disability. Under that section, retirees must submit annual statements documenting their earned income for each year. When that income is added to a retiree’s allowance, the resulting sum cannot exceed the “regular compensation which would have been payable to [the retiree] if [he or she] had continued in service . . . plus $15,000.” Id. When the cap is exceeded, the retiree must “refund the portion of [the] retirement allowance . . . equal to [the] excess.” Id.
There is no dispute in this appeal that Mr. Jarvis’s earnings and allowance exceeded § 91A’s cap in each of the six pertinent years. There is also no dispute about the amounts of the excesses.
The question presented is whether the refund owed by Mr. Jarvis to the board is adjustable downward in light of his financial circumstances. A statute generally applicable to waivers of repayments is G.L. c. 32, § 20(5)(c)(3), which says in part:
[A]t the request of a member who has been determined to owe funds to the retirement system, the board may waive repayment . . . provided that:
(i) the error in any benefit payment . . . persisted for a period in excess of one year;
(ii) the error was not the result of erroneous information provided by the member . . . ; and
(iii) the member . . . did not have reason to believe that the benefit amount . . . was in error.
The applicability of § 20(5)(c)(3) to refunds due from overearning retirees was considered in Polycarpo. The member there received erroneous advice about the retirement law from her public employer. 65 Mass. App. Ct. at 444-45. No party contended that she “failed to qualify for relief under any of [§ 20(5)(c)(3)’s] three conditions.” Id. at 450. The Appeals Court accepted the parties’ shared view for purposes of that case, but its doubts were palpable. With respect to whether the member had “reason to believe that the benefit amount[[2]] . . . was in error,” the court wrote: “satisfaction of [this] requirement might be questioned given that the statute itself arguably placed [the member] on notice that excess earnings had to be repaid.” Id. Elsewhere in the opinion, the court omitted the modifier “arguably,” stating: “[The member] was on notice by virtue of the statute that her receipt of retirement benefits came with the condition that additional earnings from government employment would be limited.” Id. at 448.
Retirement for accidental disability provides members with especially generous benefits. SeeMurphy v. Contributory Ret. Appeal Bd., 463 Mass. 333, 347 (2012). Those benefits are accompanied by § 91A’s serious restrictions. Information about the restrictions was provided to Mr. Jarvis not only through the statute: each year, he filed paperwork about his earnings, the whole point of which was to ensure his compliance with the statutory caps. Unlike the member in Polycarpo, Mr. Jarvis received no misinformation from his employer. Yet each year, he outearned his pre-retirement pay by more than the $15,000 statutory cushion. It is not possible to say that Mr. Jarvis lacked “reason to” believe that he would need to return a portion of his allowance to the board. § 20(5)(c)(3).
The result of the foregoing analysis is that the board lacked authority to waive Mr. Jarvis’s refund. It may be worthwhile to add that even when § 20(5)(c)(3)’s three conditions are met, the board “is entitled to deny, as well as to grant, relief.” Polycarpo, 65 Mass. App. Ct. at 451. A board’s decision to insist on repayment is reviewable, at most, for “whether the . . . board abused its discretion.” Id. The board in its papers communicates a firm lack of interest in waiving its right to a refund from Mr. Jarvis. The circumstances do not provide a basis for viewing that attitude as an abuse of discretion. Consequently, even if a waiver under § 20(5)(c)(3) were permissible, further proceedings in this case would be futile. Compare LaPalme v. Worcester Ret. Bd., No. CR-19-461, 2023 WL 6806269, at *4 (Div. Admin. Law App. Oct. 6, 2023), with Feffer v. Massachusetts Teachers’ Ret. Syst., No. CR-23-159, 2023 WL 8526445, at *4 (Div. Admin. Law App. Dec. 1, 2023).
The board’s decision is AFFIRMED.
Yakov Malkiel
Administrative Magistrate
Division of Administrative Law Appeals
14 Summer Street, 4th floor
Malden, MA 02148
Tel: (781) 397-4700
www.mass.gov/dala
Dated: October 31, 2025
