| Date: | 02/06/2026 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-25-0154 |
Petitioner earned $1,163.50 in “regular compensation” for intermittent police work and $15,212.50 for police detail work. Respondent denied his application to include the pay for detail work as “compensation” to meet the $5,000.00 threshold in G.L. c. 32, § 4(1)(o) because it did not satisfy the definition of “regular compensation.” Respondent’s decision is reversed because G.L. c. 32, § 4(1)(o) refers to “compensation” and petitioner is entitled to receive enhanced credit under G.L. c. 32, § 4(2)(b).
Pursuant to G.L. c. 32, § 16(4), petitioner Elliot Siegel appealed respondent Andover Retirement Board’s decision not to include pay that he earned for police detail work towards the $5,000.00 compensation threshold under G.L. c. 32, § 4(1)(o). The parties did not object to having the appeal decided based on their written submissions. The petitioner provided a statement of facts and eight exhibits; the respondent incorporated those facts by reference and added no additional exhibits. I admit into evidence Exhibits 1 to 8.
Findings of Fact
Based on the evidence in the record and reasonable inferences drawn from it, I make the following findings of fact:
Analysis
Overview of Chapter 32
Chapter 32, the retirement law for public employees, defines “regular compensation” as the “full salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority[.]” G.L. c. 32, § 1. Regular compensation must be recurrent, regular, and ordinary. See, e.g., Bulger v. Contributory Ret. App. Bd., 447 Mass. 651, 658 (2006). Wages are the “base salary or other base compensation of an employee paid to that employee for employment by an employer,” but specifically exclude overtime, bonuses, and other additional ad hoc forms of payment. G.L. c. 32, § 1.
These definitions are important because a public employee’s retirement allowance depends in part on the length of their creditable service, which typically includes the employee’s work for governmental units while the employee was a member of a public retirement system. G.L. c. 32, § 4(1)(a). At times, public employees may purchase creditable service that was not originally treated as such. For example, reserve or permanent-intermittent police officers (in addition to certain reserve, permanent-intermittent, or call fire fighters) who later become members of their department can receive “credit as full-time service not to exceed a maximum of five years that period of time during which [they were] on [a] list and [were] eligible for assignment to duty subsequent to [their] appointment[.]” Id. § 4(2)(b). However, reserve police officers wishing to purchase creditable service must demonstrate that they earned at least $5,000.00 in “compensation” each year for which they are trying to purchase credit. Id. § 4(1)(o).
In enacting Section 4(2)(b), the Legislature signaled the importance of reserve and permanent intermittent police officers’ work. Specifically, Section 4(2)(b) allows these officers to purchase credit for work before they become members of a retirement system even though the remuneration for that work does not fall within the traditional definition of “regular compensation.” Indeed, “[w]ithout Section 4(2)(b), police officers and firefighters would largely be ineligible to buy back their previous reserve or permanent-intermittent service because such service usually does not meet the definition of ‘regular compensation’ as being predetermined, nondiscretionary, and guaranteed.” Gloucester Ret. Bd. v. Public Emp. Ret. Admin. Comm’n, CR-22-0452, 2025 WL 1607684, at *4 (Div. Admin. Law App. May 30, 2025).
Question Presented
The question in this case, as it was in the recently decided Gloucester Retirement Board v. Public Employee Retirement Administration Commission, revolves around the inclusion of the unmodified word “compensation” in Section 4(1)(o) of Chapter 32 rather than “regular compensation” as used in other parts of Chapter 32. In Gloucester Retirement Board, the Division of Administrative Law Appeals (DALA) magistrate agreed with the Public Employee Retirement Administration Commission’s (PERAC) interpretation of Section 4(1)(o). Id. at *4-5.[1] Specifically, the DALA magistrate ruled that Section 4 does not use the terms “compensation” and “regular compensation” synonymously; rather, the use of the term “‘compensation’ in § 4(1)(o) is no accident[.]” Id. at *4. As a result, Gloucester Retirement Board concluded that detail and other similar pay count towards the calculation of Section 4(1)(o)’s $5,000.00 annual “compensation” threshold for the purchase of creditable service under Chapter 32. Id. at *5.
“Compensation” versus “regular compensation” as applied to Officer Siegel
As noted above, “regular compensation” under Section 1 of Chapter 32 specifically excludes ad hoc forms of payment (such as detail pay) whereas Section 4(1)(o) refers to “compensation” without modification by the word “regular.” Indeed, Officer Siegel notes in his filing with DALA that the Legislature included the words “regular compensation” six times in Section 4 but chose to include only “compensation” in Section 4(1)(o). “Where the Legislature used different language in different paragraphs of the same statute, it intended different meanings.” Commonwealth v. Williamson, 462 Mass. 676, 682 (2012) (internal citation and quotation marks omitted); see also Chapoteau v. Bella Sante, Inc., 103 Mass. App. Ct. 254, 261 (2023) (finding “intent to convey a different meaning” when Legislature used “primarily” in two parts of a statute but chose not to in third part of same statute (internal citation and quotation marks omitted)).
Here, the ARB argues that the $15,212.50 that Officer Siegel earned for detail work does not count towards the Section 4(1)(o)’s $5,000.00 threshold because it is not “regular compensation” as defined by Chapter 32. As a result, the ARB asserts that Office Siegel cannot purchase creditable service for 2012 based solely on his $1,163.50 earnings for intermittent police work as provided for in Section 4(2)(b) because it falls beneath Section 4(1)(o)’s threshold.
Adoption of the ARB’s theory would render Section 4(1)(o) superfluous. “The cannon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.” Plymouth Ret. Bd. v. Contributory Ret. App. Bd., 483 Mass. 600, 608 (2019) (internal citations omitted). Payment for many of the services included in Section 4(2)(b) – including part-time, provisional, temporary, temporary provisional, seasonal or intermittent employment – do not fit within Section 1’s definition of “regular compensation.” Without Section 4(2)(b), employees such as police officers and firefighters who work intermittent, reserve, on-call, or other kinds of sporadic shifts would be unable to purchase creditable service for those kinds of work. And if Section 4(1)(o) were read to add the word “regular” to “compensation,” it would essentially eliminate “this special, augmented benefit” for much of this work. Gloucester Ret. Bd., supra, at *4.
The ARB asks DALA to reconsider the import of the Supreme Judicial Court’s (SJC) comment in footnote 10 in Rotondi, that “were a similar dispute to arise . . . § 4(1)(o) would definitely exclude from membership employees, elected or otherwise, who earn less than $5,000 in regular compensation.” 463 Mass. at n.10 (emphasis added).
The context for the question set out in Rotondi matters. There, the SJC considered whether Section 4(1)(o) would exclude an elected official from participating in a retirement system when he earned $200 annually. That is a significantly different set of facts than are presented here and in Gloucester Retirement Board, which focus on the applicability of Section 4(1)(o) to first responders’ ability to purchase creditable service for work when they were admittedly not eligible for membership in a retirement system. Neither case presented DALA with the question of whether the petitioners should, in fact, participate in a retirement system as the SJC considered in Rotondi. In addition to this contextual difference, it is also unclear whether the SJC intended to amend Section 4(1)(o) through dicta in a footnote by adding the word “regular” to “compensation” when the Legislature chose not to do so. For these reasons, I respectfully decline to apply the language as suggested in Rotondi‘s footnote 10. See Commonwealth v. Murphy, 409 Mass. 665, 669 (1991) (phrase “not crucial to the holding of the case [ ] is therefore dictum”); Ridow v. Fogel, 376 Mass. 587, 591 (1978) (recognizing that “dictum is usually given less weight as a precedent in our law than a holding”).
The Legislature demonstrated its intent in Section 4(2)(b) to explicitly include a police officer’s part-time, provisional, temporary, temporary provisional, seasonal or intermittent employment as creditable service, subject to Section 4(1)(o)’s $5,000.00 threshold. Without Section 4(2)(b), employees such as police officers and firefighters who work intermittent, reserve, on-call, or other kinds of sporadic shifts would be unable to purchase creditable service for those kinds of work. And without Section 4(1)(o)’s unique omission of the word “regular” to modify “compensation,” many police officer or fighters would be unable to avail themselves of the benefit the Legislature designed Section 4(2)(b) to provide. The decision of the ARB is hereby reversed.[2]
Dated: February 6, 2026
Judi Goldberg
Administrative Magistrate
Division of Administrative Law Appeals
14 Summer Street, 4th floor
Malden, MA 02148
Tel: (781) 397-4700
www.mass.gov/dala
