Decision  Prevey, Roger v. Berkshire County Retirement System (CR-16-576)

Date:	11/30/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-16-576

• Petitioner: Roger Prevey
• Respondent: Berkshire County Retirement System
• Appearance for Petitioner: Scott W. Ellis. Esquire
• Appearance for Respondent: Christopher F. Connolly, Esquire
• Administrative Magistrate: Judithann Burke

Case Summary

The Petitioner, who worked in excess of 960 hours from 2006 through 2015, after retiring on superannuation, is legally obligated to repay his excess earnings to the retirement system.

Decision

Pursuant to G.L. c. 32 § 16(4), the Petitioner, Roger Prevey, is appealing from December 1, 2016 decision of the Respondent, Berkshire County Retirement Board (BCRB), that he exceeded the 960 hour annual work limitation in each year from 2006 through 2015, and, that he is responsible to repay the retirement system excess earnings in the amount of $38,070.40.  (Attachment B.)  The Petitioner’s timely appeal was received on December 20, 2018. ¹ (Attachment D.)

A First Pre-Hearing Order was issued on May 4, 2018.  (Attachment A.)  The parties Joint Pre-Hearing Memorandum was received on June 29, 2018.  (Attachment B.)

The parties submitted their respective cases in the Joint Pre-Hearing Memorandum.  On July 11, 2018, I issued an Order wherein I instructed the parties to submit any additional documents and/or arguments by August 31, 2018.  (Attachment C.)  No additional documents were submitted.  The case record closed on August 31, 2018.

Agreed Findings of Fact

1. The Petitioner, Roger Prevey, has been receiving public employee retirement benefits since 2000.  (Attachment B.)
2. The Petitioner retired with thirty-two (32) years and three (3) months of creditable service after serving as a Williamstown Police Officer.  (Id.)
3. Beginning in 2006 through 2015, the Petitioner worked part-time for the City of North Adams, and, in each of those years, he worked in excess of 960 hours.  (Id.)   
4. The Petitioner’s average salary at the time of his retirement was $44,435.00.  The current salary from the position from which he retired is approximately $55,000.00.  (Id.)
5. At the time of his retirement, the Petitioner received $27,930.00 in annual retirement benefits.  This amount has increased by approximately $360 each year since, and, by 2015, these benefits have increased to $33,060.00.  (Id.)
6. In no year since the Petitioner  retired have his earnings, when added to his retirement benefits, exceeded the salary then being paid for the position from which he had retired, (plus $15,000.00 since April 2, 2012).  (Id.)
7. In each year from 2006 through 2015, the number of hours the Petitioner worked in each year, the number of hours that he worked in excess of 960 hours, his rate of pay, his wages earned, and the wages earned for working in excess of 960 hours, are as follows:

Year	Hours Worked	Excess Hours	Pay Rate	Wages Earned	Excess Earnings
2006	1,000	40	8.25	8,350.00	330.00
2007	1,192	232	9.00	10,478.00	2,088.00
2008	1,467.5	507.5	9.23	13,370.80	4,684.23
2009	1,502	542	9.32	13,927.36	5,051.44
2010	1,529	567	9.41	14,385.01	5,354.29
2011	1,493	533	9.41	14,049.13	5,045.53
2012	1,446	486	9.60	13,920.96	4,665.60
2013	1,304	344	9.79	12,726.83	3,367.76
2014	1,433	473	9.79	14,029.07	4,630.67
2015	1,223	263	10.08	12,145.68	2,651.04

(Id.)

8.   Until 2016, the Petitioner was never told that he had exceeded the 960 hours cap restriction.  (Id.)
9. The Petitioner never certified or informed the City of North Adams as to the number of hours which he was employed or the amount of earnings that he derived therefrom.  (Id.)
10. In a letter dated December 1, 2016, Barbara LaBarbera, Executive Director of the Berkshire County Retirement Board, informed the Petitioner that the Board had reviewed his violation of G.L. c. 32, §§ 91 (a) and (b), post retirement earnings.  Ms. LaBarbera indicated that the Board concluded that the Petitioner had exceeded the 960 hour imitation from 2006 through 2015, and, voted that he was responsible to repay the retirement system the excess earnings of $38,070.40.  (Attachment D.)

The Petitioner filed a timely appeal.  (Id.)

Conclusion

The Petitioner is not entitled to prevail in this appeal. He has not met his burden of proving that he is exempt from being required to return the excess earnings he received from 2006 through 2015.  G.L. c. 91(b) provides, in pertinent part:

(b) in addition to and notwithstanding the foregoing provisions of this section or similar provisions of any special law, any person who has been retired and who is receiving a pension  or retirement allowance, under the provisions of this chapter or any other general or special law, from the commonwealth, county, city, town, district or authority…may, subject to all laws, rules and regulations, governing the employment of persons in the commonwealth, county, city, town, district or authority, be employed in the service of the commonwealth, county, city, town, district or authority for not more than nine hundred and sixty hours in the aggregate, in any calendar year; provided that the earnings therefrom when added to any pension or retirement allowance he is receiving do not exceed the salary that is being paid for the position from which he is being retired…

(Emphasis added).

Accordingly, while the Petitioner’ earnings did not exceed the salary that is being paid for the position from which he retired (plus $15,000 from and after April 2012), in his case not to exceed $70,000, he regularly and routinely violated the 960 hour employment cap, in violation of both G.L. c. 32, §§ 91 (b) and (c).  The Respondent is correct in its contention that the word “therefrom” in Section 91(b) clearly references those earnings that are derived during the 960 hours allowed pursuant to the same section of the statute. 

G.L. c. 32, § 91(c) provides:

(c) Each person referred to in paragraph (b) shall certify to his employer and the treasurer or other person responsible for the payment of compensation for the position in which he is to be employed, the number of days or hours which he has been employed in any such calendar year and the amount of earnings therefrom, and if the number of hours exceed nine hundred and sixty, in the aggregate, he shall not be employed, or if the earnings therefrom exceed the amount allowable under paragraph (b), he shall return to the appropriate treasurer or other person responsible for the payment of compensation all such earnings as are in excess of said allowable amount.

(Emphasis added.)

The Petitioner never certified or informed the City of North Adams the number of hours which he was employed or was allowed to be employed while he was receiving his retirement allowance.  He never returned the excess earnings he received as a result of working more than 960 hours per annum.

The Petitioner’s contention that, because his earnings never exceeded the salary that was being paid for his position in any given year in question (plus $15,000 from and after 2012), and that thus, he is exempt from any recoupment of his excess earnings, is based upon a premise that is inconsistent with the plain meaning of the statute.   We may not rewrite the statute’s clear terms.  See Edward Mirka v. State Board of Retirement, CR-11-26 (Division of Administrative Law Appeals July 31, 2015) (Affirmed by Contributory Retirement Appeal Board December 21, 2016) citing Dillido v. Oxford Street Realty Inc. 450 Mass. 66, 77 (2007) and Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984.)   Further, the fact that the Petitioner was not informed that he had accrued excess earnings until 2016 is a non-issue.

In the event that a retiree is overpaid, the excess may either be recovered in a contract action by the appropriate treasurer or other person responsible for the payment of the compensation or it may be offset from the member’s pension.  Section 91(c); Flanagan v. Contributory Retirement Appeal Board, 51 Mass. App. Ct. 862, 869, 750 N.E. 2d 489, 493 (2001).  The Flanagan Court held that a retirement board’s authority to withhold the excess payments stems from its general powers under G.L. c. 32, § 20(5)(b) which provides that the Board is to have such powers and duties as are necessary to carry out the requirements of Chapter 32.

In summary, the Petitioner’s earnings above and beyond the statutorily mandated limitation of 960 hours are subject to the excess earnings provision of Section 91(b). The calculation of his excess earnings is correct and this amount must be refunded to the Berkshire County Retirement System in accordance with the Board’s authority pursuant to G.L. c. 32, § 20 (5)(b).  See Janice Nigro v. Everett Retirement Board & Public Employee Retirement Administration Commission, CR-06-618 (Division of Administrative Law Appeals 11/27/2007; no Contributory Retirement Appeal Board Decision.)           

So Ordered.

Division of Administrative Law Appeals,

BY:

 

Judithann Burke
Administrative Magistrate

 

RE-ISSUE DATE:  November 30, 2018

¹ While the appeal letter was stamped as received at DALA on December 20, 2016, outside of the fifteen-day appeal period, the post-mark date on the envelope in which it was sent is December 8, 2016.  The appeal was timely.