Decision  Mark Newman v. State Board of Retirement, CR-04-203 (CRAB, 2008)

Date:	12/23/2008
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-04-203

• Petitioner: Mark Newman
• Respondent: State Board of Retirement

Decision on Motion for Reconsideration

On October 31, 2008, respondent State Board of Retirement (State board), invoking 801 Code Mass. Regs. § 1.01(7)(1) (the regulation), moved for reconsideration of our decision of October 3, 2008, in favor of petitioner Mark Newman's request to buy back credit in the state retirement system for his prior service in the Suffolk County District Attorney's Office. The State board had ruled that, under G. L. c. 32, § 65D, Newman is limited to the retirement provisions applicable to judges. We have not received any response from Newman.

For the reasons stated below, the State board's motion is denied.

A party moving for reconsideration must "identify a clerical or mechanical error in the decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case." ¹ The State board's motion is denied because it does not bring before us either "a clerical or mechanical error in the decision" or an "overlooked" "significant factor." Rather, the two purported factors that the State board's motion says we overlooked are simply legal arguments by the State board against our decision.

First, the State board's motion contends that we overlooked a Superior Court decision involving a different judge. But while Superior Court opinions may have persuasive value, they "have no precedential value." ² If the State board wanted us to consider that opinion for its persuasive value, then it was the State board's responsibility to call the opinion to our attention before we decided this case.

Second, the State board's motion contends that we overlooked "the clear and unambiguous statutory language of G. L. c. 32, § 3(6)(d) and (e)." But this contention is simply a mistaken attempt to bring within the regulation the State board's deeply-held view that we have misconstrued this statutory language. In other words, the State board is trying to reargue the case, which is not the purpose of a motion for reconsideration under the regulation.

Finally, in a letter dated December 3, 2008, the State board seeks to draw our attention to another Superior Court decision involving yet another judge. As that decision was made nearly two months after our decision in this case, it is not something we could have "overlooked." It, therefore, is not properly before us.

Even if this second Superior Court opinion were properly before us, we would not consider it. The State board cites it in support of an argument that the State board waived by not objecting to the relevant portion of the decision of the Division of Administrative Law Appeals (DALA). According to DALA, "[t]he Petitioner was formerly employed by the Commonwealth; upon his appointment of the Juvenile Court, he re-entered the active service of the Commonwealth." ³ Not having objected to this statement in its appeal to us, the State board may not raise the issue now.

The State board not having brought to our attention either a clerical or mechanical error or an overlooked significant factor within the meaning of the regulation, its motion for reconsideration is denied.

SO ORDERED.
CONTRIBUTORY RETIREMENT APPEAL BOARD
/s/
Joseph I. Martin

Public Employee Retirement Administration
Commission Appointee

Vacant
Governor's Appointee
/s/
David A. Guberman
Assistant Attorney General
Chairman
Attorney General's Appointee

Date: December 23, 2008

 

1. 801 Code Mass. Regs. § 1.01(7)(1).
2. Ciampi v. Commissioner of Corr., 452 Mass. 162, 169, n.11 (2008). Accord, Thurdin v. SEI Boston, LLC, 452 Mass. 436, 455 n.27 (2008).
3. DALA Decision at 5 (unnumbered page).