| Date: | 11/20/2009 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-08-619 |
The petitioner may purchase his contract service as creditable service because he has more than ten years of creditable service with the State Employees Retirement System. The State Board of Retirement erred when it determined that his past military service could not be included as creditable service in order to satisfy the ten year service requirement under G.L. c. 32, § 4 (1) (s).
On November 3, 2009, the Contributory Retirement Appeal Board vacated my decision in Cremins v. State Board of Retirement, Docket No. CR-08-619 (DALA 2008) issued on June 16, 2009, and remanded the appeal "for additional factfinding regarding the nature of Cremin's position as an Institutional Safety Officer, during his contract employment, and his subsequent position as a regular employee."
CRAB stated that G. L. c. 32, § 4 (1) (s) requires four things: (a) the employee must be a member of the state employee retirement system; (b) immediately preceding the establishment of membership or re-entry into membership the employee must have been compensated for service to the commonwealth as a contract employee; (c) the contract position must have been substantially similar to the position the employee held when he became a member of the system; and (4) the employee must have 10 years of creditable service with the state employees' retirement system. CRAB determined it was undisputed that Mr. Cremins was a regular employee of Holyoke Community College and a member of the state employees' retirement system, and that he was a contract employee at the college immediately preceding his membership in the system. CRAB further determined, however, that I made no finding concerning the substantial similarity of the two positions, and that whether he had 10 years of creditable service turned on the degree of similarity between the positions.
In this Remand Decision I adopt my original findings of fact Nos. 1-4 and 6-9. I revise finding No. 5 to supply the information CRAB believed was missing. My conclusion remains the same.
Jon M. Cremins appeals, pursuant to G.L. c. 32, §16 (4), from a decision of the State Board of Retirement denying his request to purchase contract service as creditable service under G.L. c. 32, §4 (1) (s).
Mr. Cremins 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 December 29, 2008, I ordered the parties to submit stipulations of fact, written arguments, and proposed exhibits by January 29, 2009. The Board filed a statement of facts, eleven proposed exhibits, and its supporting argument. Mr. Cremins filed two exhibits and written argument.
The following documents submitted by the Board are in evidence:
Exhibit 1: Decision letter from Board to Mr. Cremins, dated September 2,
2008.
Exhibit 2: Appeal letter to DALA dated September 3, 2008.
Exhibit 3: Mr. Cremins' letter requesting a submission without a hearing dated
September 20, 2008.
Exhibit 4: Notice and Order dated December 29, 2008.
Exhibit 5: Mr. Cremins' "Contract Service Buyback Form," with attachments, dated
August 1, 2008.
Exhibit 6: "Contract Service Buyback Requirements" adopted March 29, 2007.
Exhibit 7: Documents concerning Mr. Cremins' refund of retirement deductions.
Exhibit 8: Board-generated computer printout of Mr. Cremins' service dates.
Exhibit 9: Board's contract service denial letter dated August 6, 2008.
Exhibit 10: Mr. Cremins' appeal letter to Board dated August 9, 2008.
Exhibit 11: Board's notice of receipt of payment for Mr. Cremins' purchase of prior
service.
Based on the evidence in the record, I make the following findings of fact:
1. Mr. Cremins, who was born on November 8, 1948, retired on November 13, 2008. (Exh. 3 and Exh. 7).
2. Mr. Cremins became a member of the State Employees Retirement System on March 3, 1985 when he was employed by the Department of Revenue in its Bureau of Special Investigations. (Exh. 7 and Exh. 11).
3. Mr. Cremins resigned from his position with the Department of Revenue on June 1, 1990, and on June 29, 1990, he received a refund of his accumulated total deductions toward retirement. (Exh. 7).
4. From March 7, 2005 to October 28, 2005, Mr. Cremins was employed by Holyoke Community College as an Institutional Security Officer, during which time he was paid from an "03" subsidiary account and was not thus a member of the State Employees' Retirement System. (Exh. 5).
5. From October 31, 2005 until his retirement in 2008, Mr. Cremins continued to be employed by Holyoke Community College as an Institutional Security Officer; however, he was paid as a state employee and was a member of the State Employees' Retirement System, and his job description in the position compensated from contract funds was substantially similar to the job description in the position he held upon reentry into the State Employees' Retirement System. (Exh. 2, Exh. 5, and Exh. 10).
6. In January, 2006, Mr. Cremins purchased seven years, two months and twenty-nine days of creditable service toward retirement, comprising military service from November 3, 1969 to November 2, 1971 and a reinstatement of his service while employed by the Department of Revenue from March 3, 1985 to June 1, 1990. (Exh. 2 and Exh. 11).
7. On August 1, 2008, Mr. Cremins submitted to the Board a "Contract Service Buyback Form" in which he sought to purchase his contract service from March 7, 2005 to October 28, 2005, as an Institutional Security Officer at Holyoke Community College. (Exh. 5).
8. The Board voted to deny Mr. Cremins' request to purchase his contract service from March 7, 2005 to October 28, 2005 and so notified him by letter dated September 2, 2008. (Exh. 1).
9. Mr. Cremins filed an appeal of the Board's decision by letter postmarked September 4, 2008, which the Division of Administrative Law Appeals received on September 5, 2008. (Exh. 2 and original appeal letter filed at DALA).
Mr. Cremins filed his appeal within fifteen days of the date the Board notified him of its decision. His appeal, thus, is timely.
G.L. c. 32, § 4 (1) (s) allows eligible members in service of the State Employees' Retirement System to purchase up to four years of state contract service as creditable service, provided they meet certain criteria. G.L. c. 32 § 4 (1) (s) provides in pertinent part that:
Any member in service of the state employees' retirement system who, immediately preceding the establishment of membership in that system or re-entry into active service in that system, was compensated for service to the commonwealth as a contract employee for any department, agency, board or commission of the commonwealth may establish as creditable service up to 4 years of that service, if the member has 10 years of creditable service with the state employees' retirement system, and if the job description of the member in the position which the member holds upon entry into service or re-entry into active service is substantially similar to the job description of the position for which the member was compensated as a contract employee….
The Board interprets c. 32, § 4 (1) (s) to require at least ten years of creditable service as a member of the State Employees' Retirement System; that is, service with other public entities or the military cannot be included. See Exh. 6. The Contributory Retirement Appeal Board construes c. 32, § 4 (1) (s) differently. In Barker v. State Bd. of Retirement, CR-07-115 (DALA 2007, rev'd. CRAB 2008, appeal pending Super. Ct.), it held that a member of the State Employees' Retirement System who had previously been credited with service at the Massachusetts Water Resources Authority could use that service toward the ten year requirement under c. 32, § 4 (1) (s).
Mr. Cremins' circumstances are similar. The Board allowed him to purchase his military service as creditable service toward retirement. The Board's own records show that Mr. Cremins has over ten years of creditable service. See Exh. 8. Following Barker, I conclude that the Board erred when it determined that Mr. Cremins cannot include his military service as creditable service under G.L. c. 32, §4 (1) (s). The Board thus must allow Mr. Cremins to buy
back his contract service.
SO ORDERED.
DIVISION OF ADMINISTRATIVE
LAW APPEALS
/s/ Bonney Cashin
Bonney Cashin
Administrative Magistrate
Dated: November 20, 2009
