| Date: | 04/03/2026 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-25-0191 |
Petitioner Michael Kane is retired for accidental disability from the retirement system administered by the Wellesley Retirement Board (board). He appeals from the board’s decision to pursue a refund of “excess earnings” from him. The Public Employee Retirement Administration Commission (PERAC) has joined the case as a respondent. The board and PERAC move for summary decision, which is appropriate when “there is no genuine issue of fact . . . and [the moving party] is entitled to prevail as a matter of law.” 801 C.M.R. § 1.01(7)(h). Mr. Kane opposes summary decision and counters with various procedural motions.
The statutory background is the following. Under G.L. c. 32, § 91A, retirees for accidental disability are required to report their post-retirement earnings to PERAC. When those earnings in a given year are added to “[a] member’s retirement allowance,” the resulting sum is not allowed to exceed the compensation “which would have been payable to [the member] if [he or she] had continued in service . . . plus $15,000.” Id. When this limit is exceeded, “said member shall refund the . . . excess and until such refund is made, [the] pension or retirement allowance shall be held as security therefor.” Id.
The material facts are not in dispute. Mr. Kane first exceeded his § 91A earnings cap in 2022, by approximately $31,000. The board decided to collect its refund through an offset, i.e., by withholding Mr. Kane’s retirement allowance for 2023.
Mr. Kane took an appeal limited to narrow issues. He did not dispute the amount of his excess earnings. He did not contest the board’s authority to collect a refund through an offset. Instead, Mr. Kane argued essentially that the offset should be more gradual, with the board continuing to pay reduced benefits to Mr. Kane in the meantime. More specifically, Mr. Kane maintained that his “annuity,” i.e., the portion of the retirement allowance derived from his own contributions, should be paid without interruption. Mr. Kane also sought to continue to receive monthly sums sufficient to cover his family’s health insurance premiums.
A DALA magistrate affirmed. Kane v. Wellesley Ret. Bd., No. CR-23-508, 2024 WL 5055502 (Div. Admin. Law App. Nov. 25, 2024) (Kane I). No appeal followed, in circumstances discussed briefly below.
Eventually the time came to compute Mr. Kane’s compliance with § 91A in 2023. To do so, PERAC added Mr. Kane’s reported earnings to the usual amount of his retirement allowance, i.e., the amount that would have been paid to him if not for the offset affirmed in Kane I. The result of the calculation was that Mr. Kane again exceeded his earning cap, this time by approximately $37,000. The board issued a decision stating its intent to recover that sum from Mr. Kane. He commenced the current appeal.
Mr. Kane’s primary argument is that, because his retirement allowance for 2023 was not actually delivered to him, the allowance should not count toward the § 91A calculation. The argument does not hold water. In each month of 2023, the board could have paid Mr. Kane his monthly allowance, then retrieved the same amount as repayment for the refund that it was owed. The board only simplified matters by reducing Mr. Kane’s debt each month by the amount of his allowance. This course of practice made no difference as far as the allowance’s financial effect. One way or the other, Mr. Kane received the value of the allowance in the form of a forgiven debt. Cf. Somers v. Converged Access, Inc., 454 Mass. 582, 593 (2009); Pondfield Realty Co. v. Commissioner, 1 T.C. 217, 218-19 (1942).
Mr. Kane argues that the board took an illusory repayment from him: after missing out on a year’s worth of allowance payments, he finds his debt to the board to be no smaller than it was at the beginning of the year. But this state of affairs flows from Mr. Kane’s own choices. During 2023, while his debt to the board was being forgiven one allowance check at a time, he continued to engage in the same post‑retirement work and earnings that got him into trouble in 2022. The force of § 91A’s restrictions does not depend on the financial form of a retiree’s allowance, whether cash, wire, debt forgiveness, or any other arrangement.
Mr. Kane next challenges the validity of Kane I, emphasizing that the case was decided without a live hearing and that he retrieved the decision from his post office box too late to file an appeal. No arguments against Kane I can be entertained here, however: under principles of preclusion, such arguments would need to be made on motions or appeals “in the original proceeding.” Restatement (Second) of Judgments § 18 (1982). See Peters v. Massachusetts Teachers’ Ret. Syst., No. CR-24-545, 2025 WL 1835964, at *3 (Div. Admin. Law App. June 27, 2025). It is also hard to see how the current dispute could be impacted by Kane I’s particulars: Any successes by Mr. Kane in that first appeal would have caused certain sums to be delivered to him instead of counting toward the board’s offset. The result would have been a different breakdown of Mr. Kane’s earnings in 2023, but an unchanged sum total.[1]
Mr. Kane also takes issue with certain statutes pertinent to the excess-earnings calculation. He claims that the Legislature discriminated against retirees for accidental disability by not waiving the § 91A cap during the COVID-19 pandemic, even as it suspended certain other restrictions. See, e.g., Acts 2020, c. 53, § 14. Mr. Kane adds that he ceased to receive an extra stipend for an 18-year-old child who was not a “full-time student,” G.L. c. 32, § 7(2)(a)(iii), while still paying child support for that child. It is not necessary to dwell on the merits of these arguments. Any challenges to the validity of the Commonwealth’s statutes must be made in the Superior Court. Administrative tribunals are required to treat all on-the-books statutes as in-force and binding. See Pepin v. Division of Fisheries & Wildlife, 467 Mass. 210, 214 (2014); Doe v. Sex Offender Registry Bd., 459 Mass. 603, 630 (2011); Maher v. Justices of Quincy Div., 67 Mass. App. Ct. 612, 619 (2006).[2]
In view of the foregoing, and to briefly resolve Mr. Kane’s own motions, it is ORDERED that:
/s/ Yakov Malkiel
Yakov Malkiel
Administrative Magistrate
Division of Administrative Law Appeals
