| Date: | 01/08/2010 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-08-329 |
Elected official who joined Retirement System within ninety days of assuming his fifth term in office, pursuant to G.L. c. 32, § 3(2)(a)(vi), and retired six months after joining not precluded from receiving a superannuation retirement allowance by G.L. c. 32, § 3(6)(e) two-year active service requirement.
The Petitioner, Louis A. Calabrese, appealed timely under G.L. c. 32, § 16(4) the May 14, 2008 decision of the Respondent, Hampden County Regional Retirement Board, denying his request for a superannuation retirement allowance after PERAC opined that he was not entitled to it because he had not been in active service for two years after joining the Retirement System and was therefore precluded from receiving the retirement allowance by G.L. c. 32, § 3(6)(e). (Exs. 1, 2, 3.)
The Petitioner elected to waive a hearing on the merits, and has elected instead to proceed on written submissions pursuant to 801 CMR 1.01(10)(c). On December 15, 2009, the Petitioner submitted his argument and proposed exhibits. On December 18, 2009, the Respondent submitted its argument and six proposed exhibits. I admitted each of the following exhibits into evidence:
Ex. 1 Petitioner's Appeal letter, dated May 15, 2008;
Ex.2 Respondent's denial of Petitioner's retirement application, dated May 14, 2008;
Ex. 3 PERAC opinion letter, dated May 7, 2008;
Ex. 4 Respondent's letter to PERAC, dated February 8, 2008;
Ex. 5 Respondent's letter to Petitioner, dated January 10, 2008;
Ex. 6 Petitioner's affidavit, dated January 24, 2008;
Ex. 7 Respondent's membership letter sent to Petitioner, dated May 31, 2007;
Ex. 8 Petitioner's application for voluntary superannuation retirement, dated September 5, 2007;
Ex. 9 Petitioner's retirement calculation sheet;
Ex. 10 Petitioner's affidavit, dated December 14, 2009.
Based on the evidence presented by the parties, I make the following findings of
fact:
1. Louis A. Calabrese, d.o.b. 1/7/42, served as an elected official on the East Longmeadow Planning Board from 1987 to 2007. (Exs. 8, 9, 10.)
2. In May, 2006, Mr. Calabrese spoke with East Longmeadow's benefits administrator, Rosina Goodrich, about retiring at the end of his term on the Planning Board. Ms. Goodrich informed him that, to become a member of the Retirement System, Mr. Calabrese would have to run for his position again, be elected, and then apply for membership within ninety days of assuming office. (Ex. 10.)
3. On April 10, 2007, Mr. Calabrese was elected to a fifth five-year term on the East Longmeadow Planning Board. (Ex. 9.)
4. On April 17, 2007, Mr. Calabrese applied to the Hampden County Regional Retirement System for membership. He also proffered a check for $2,224.09 to purchase twenty years of creditable service which he earned in his first four five-year terms. (Exs. 7, 9, 10.)
5. In August 2007, Mr. Calabrese contacted the Retirement System and expressed a desire to retire. On September 5, 2007, he submitted an application for superannuation retirement. (Exs. 7, 8, 9, 10.)
6. Linda Martin, an employee of the Hampden County Regional Retirement System, helped Mr. Calabrese prepare his membership application and application for voluntary superannuation retirement. Ms. Martin did not inform Mr. Calabrese that he needed to perform two years of uninterrupted service in order to qualify for a superannuation retirement allowance. (Ex. 10.)
7. On October 15, 2007, Mr. Calabrese resigned his elected position with the Planning Board. (Ex. 9.)
8. On January 10, 2008, Julianne Bartley, Executive Director of the Hampden County Regional Retirement Board, informed Mr. Calabrese by letter that PERAC had refused to approve Mr. Calabrese's retirement application. She further informed Mr. Calabrese that PERAC's denial was based on his failure to have been a contributing member of the Retirement System for at least two consecutive years prior to his retirement date. (Ex. 5.)
9. In the January 10, 2008 letter, Ms. Bartley also offered to petition PERAC for a waiver of the two-year consecutive service requirement, which the Board eventually did on February 8, 2008. (Ex. 5.)
10. On May 7, 2008, PERAC issued its response, informing the Board that it had no power to waive the statutory two-year service requirement. (Ex. 3.)
11. On May 14, 2008, the Hampden County Regional Retirement Board informed Mr. Calabrese of PERAC's response and denied his application for superannuation retirement. (Ex. 2.)
12. Mr. Calabrese filed a timely appeal with the Division of Administrative Law Appeals on May 19, 2008. (Ex. 1.)
The decision of the Hampden County Regional Retirement Board is reversed. The two-year active service requirement found in G.L. c. 32, § 3(6)(e), upon which the Board predicated its denial, does not apply to Mr. Calabrese because he became a member of the retirement system pursuant to G.L. c. 32, § 3(2)(a)(vi) and did not become a member under G.L. c. 32, §§ 3(3) or 3(8) or transfer or re-establish his membership.
G.L. c. 32, § 3 provides for two kinds of retirement system membership: members in service, G.L. c. 32, § 3(1)(a)(i), and members inactive, G.L. c. 32, § 3(1)(a)(ii). Membership as a member in service is open to several categories of persons listed in G.L. c. 32, § 3(2). G.L. c. 32, § 3(2)(a)(vi) allows certain elected officials to become members in service of a retirement system, and provides
[a]ny person hereafter elected by popular vote to a state, county or municipal office or position who files with the board on a prescribed form a written application for membership within ninety days after the date of assuming office; provided, that a member becoming an elected official shall retain his membership and an elected official who is a member shall remain a member upon his re-election or upon his election or appointment to any other position which would otherwise entitle him to membership.
In the case at bar, the Petitioner, Louis Calabrese, sought membership in the Hampden County Regional Retirement Board seven days after being elected to a fifth consecutive term on the East Longmeadow Planning Board. About five months later, after purchasing creditable service for the prior twenty years he had served on the Planning Board, Mr. Calabrese applied for a superannuation retirement allowance. About a month after submitting his application, Mr. Calabrese resigned his elected position on the Planning Board. Several months after the resignation, acting on an opinion from PERAC, the Retirement Board denied Mr. Calabrese's retirement application.
PERAC's denial was based on G.L. c. 32, § 3(6)(e), which provides, in relevant part, that
no person who becomes a member under subdivision (3) of this section, and no member who is reinstated to or who re-enters active service . . ., or who transfers or re-establishes his membership as provided for in subdivision (8) of this section, shall be eligible to receive a superannuation retirement allowance, an ordinary disability retirement allowance or a termination retirement allowance unless and until he shall have been in active service for at least two consecutive years . . . .
PERAC concluded that, since Mr. Calabrese had been a member of the Retirement System for only six months, § 3(6)(e) precluded him from receiving a superannuation retirement allowance.
PERAC's initial denial set off a chain of events, all of which were predicated on the supposition that Mr. Calabrese was precluded by § 3(6)(e) from receiving a superannuation retirement allowance. The Retirement Board agreed to petition PERAC on behalf of Mr. Calabrese to seek an exception to § 3(6)(e)'s two-year active service requirement. PERAC again reiterated that § 3(6)(e) precluded Mr. Calabrese from receiving a superannuation retirement allowance and, after considerable discussion, denied Mr. Calabrese any relief.
The problem with PERAC's opinion and the Board's ultimate denial of Mr. Calabrese's retirement application is that the two-year active service requirement contained in § 3(6)(e) does not apply to Mr. Calabrese because he does not fit into any of the categories of persons listed in § 3(6)(e), to whom that section applies.
Section 3(6)(e), by its own terms, applies to: (1) persons who become members pursuant to § 3(3); (2) reinstated members; (3) members who re-enter active service; and (4) members who transfer or re-establish membership as provided for in § 3(8). Mr. Calabrese is not a reinstated member, and he did not re-enter active service. Section 3(8) pertains to members who transfer their membership from one contributory retirement system to another or who leave public service, withdraw their contributions to the system and then re-establish membership in another contributory retirement system. Section 3(8) does not apply to Mr. Calabrese either.
The only category Mr. Calabrese could arguably fall into is persons who become members pursuant to § 3(3). For the following reasons, I reject this possibility and find that he became a member pursuant to § 3(2)(a)(vi).
Section 3(2)(a)(vi) allows an elected official to choose to become a member of the applicable retirement system by making application for membership within ninety days of assuming office. "The section does not limit the elected official's right to make such a choice to the first time that he or she assumes an office." Smith v. Essex County Retirement Bd., CR-94-722 (CRAB 1995). As PERAC acknowledged in its opinion, "[i]f an elected official were again elected, he or she would then have an additional ninety days after assuming office to decide whether or not to join the retirement system." (Ex. 3.)
Mr. Calabrese served as a member of the East Longmeadow Planning Board for nearly four full five-year terms before he attempted to join the Retirement System. In May of 2006, the town's benefits administrator informed Mr. Calabrese that he was ineligible to join the Retirement System because he did not do so within ninety days of assuming office, in 2002. Mr. Calabrese followed the benefits administrator's ministrations and was re-elected to the Planning Board. A week after he began his new term, Mr. Calabrese applied for membership in the Retirement System. He was admitted as a member by letter dated May 31, 2007. I therefore conclude that Mr. Calabrese became a member of the Hampden County Regional Retirement System pursuant to G.L. c. 32, § 3(2)(a)(vi).
It may be argued that, while he became a member pursuant to § 3(2)(a)(vi), Mr. Calabrese also became a member pursuant to § 3(3) and is therefore subject to the § 3(6)(e) two-year active service requirement. I reject this argument. Section three, subdivision three, entitled "Late Entry into Membership," provides that
any employee who, having or having had the right to become a member, failed to become or elected not to become a member, may apply for and be admitted to membership if under the maximum age for his group on the date of his application; provided, that during his present period of service he had previously been eligible for membership; and any employee who, having had the right to become a member of any retirement system established under the provisions of this chapter, or under corresponding provisions of earlier laws or any special law, failed to become or elected not to become a member, may apply for and be admitted to membership if under the maximum age for his group on the date of his application . . . .
G.L. c. 32, § 3(3) (emphasis added). The Contributory Retirement Appeal Board has made it clear that § 3(2)(a)(vi) "provides the mechanism for elected officials to become members of a retirement system and provides the time period during which they must exercise this option." Turner v. Northbridge Retirement Bd., CR-00-298 (CRAB 2002). Elected officials are not eligible for late membership in a retirement system pursuant to § 3(3). See Goode v. Weymouth Retirement Bd., CR-99-701 (CRAB 2001) (requirement that elected official apply for retirement system membership within ninety days of assuming office "cannot be rendered meaningless by operation of G.L. c. 32, § 3(3)."); Levesque v. Essex CountyRetirement Bd., CR-95-571 (CRAB 1996) (same). Therefore, Mr. Calabrese did not become a member of the Retirement System pursuant to § 3(3).
To sum up, because he did not become a member pursuant to § 3(3) and does not fit into any of the other categories to which the two-year active service requirement in § 3(6)(e) applies, Mr. Calabrese is not subject to the requirement and is therefore entitled to a superannuation retirement allowance once he purchases the creditable service to which he is entitled for his first four elected terms.
Mr. Calabrese's application for superannuation retirement is therefore remanded to the Hampden County Regional Retirement System for processing consistent with this decision.
SO ORDERED.
DIVISION OF ADMINISTRATIVE LAW APPEALS
_/s/ Kenneth J. Forton
Kenneth J. Forton, Esq.
Administrative Magistrate
DATED: January 8, 2010
