| Date: | 09/19/2025 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-24-0247, CR-25-0338 |
Following a Civil Service Commission decision on his termination appeal in his favor, the petitioner sought to be reinstated to service as a firefighter. He had retired before the Commission issued its decision. The respondent Board denied his request. The Board’s decision is reversed. Under G.L. c. 32, § 105, the petitioner is required to work full time for five years from his reinstatement date to receive increased retirement benefits.
Introduction
On May 15, 2025, petitioner Thomas F. Swartz appealed under G.L. c. 32, § 16(4), a decision of the Barnstable County Retirement Association (Board) issued on April 30, 2025 that denied his application for reinstatement to public service. Without objection, the parties agreed to have the case determined on their written submissions under 801 CMR 1.01 (10)(b).
The Board offered seven documents as evidence, which are described in its prehearing memorandum dated July 8, 2024. Mr. Swartz filed ten attachments with his appeal, some of which are duplicates of the Board’s filing. The Board’s exhibits are admitted and marked 1-7. Mr. Swartz’s additional exhibits are admitted and marked 8A-K. On my own accord, I admitted Board counsel’s letter dated April 28, 2025, as Exhibit 9.
Findings of Fact
Based upon the evidence in the record and the reasonable inferences from it, I make the following findings of fact:
Discussion
DALA has jurisdiction to hear Mr. Swartz’s appeal. The basis for the Board’s second decision was no different from its first decision. Yet the further communications between counsel plainly show that the crux of the matter concerns different interpretations of G.L. c. 32, § 105. The Board cannot ignore a member’s substantive disagreement with it by relying on a non-substantive reason for denying an application. None of Mr. Swartz’s marks render the text on the form illegible. I view them as a layperson’s attempts to show where he disagrees with the Board’s view on reinstatement requirements for him. The Board could have accepted the application as submitted and simply noted that it was ignoring the marks Mr. Swartz made as having no effect on the form’s text. Cf. Sirois v. Methuen Ret. Bd., CR-24-0641 (Div. Admin. Law App. Apr. 25, 2025), citing Schulte v. Director of Div. of Emp. Sec., 369 Mass. 74, 80 (1975) (“Substantively meritorious claims generally should not be defeated by harmless procedural missteps.”).
On July 1, 2004, G. L. c. 32, § 105 came into effect. It provides:
Section 105(b) provides:
If the member shall have less than 5 years reinstatement service, upon retirement, that member shall receive a refund of the payments actually made to the system under this section. The member shall not be entitled to any creditable service for the reinstatement service, nor shall the member be eligible to establish any additional creditable service under any provision for makeup payments or other payments.
Chapter 32, § 105, is clear regarding the requirement that a retiree who is reinstated must be employed for five (5) years of reinstatement service for that service to count as creditable service. Reinstatement service is defined in Section 105(a) as the member's period of full-time employment after reinstatement.
Chapter 32, § 105, offers no exceptions to the five-year requirement. An exception is precisely what Mr. Swartz seeks, arguing that the language used by the Civil Service Commission in its decision provides the exception. His argument is without merit. First, the Commission simply lacks authority to contravene the requirements of Chapter 32. Cf. Morais v. New Bedford Ret. Bd., CR-24-0109 (Div. Admin. Law App. Jan. 24, 2025). It recognized the limits of its authority when it stated that Mr. Swartz’s reinstatement was “subject to compliance with such other requirements of law governing his reinstatement as are consistent with this decision.” (Finding 4.) The Commission also noted that “[n]othing in this decision addresses the merits of [Mr. Swartz’s] retirement applications or the statutory requirements that govern a return to duty by a retired civil service employee.” (Finding 5.) Second, retirement boards and DALA are without authority to waive the five-year statutory requirement. Banks v. State Bd. of Ret., CR-24-0068, 2024 WL 3770229 at *2 (Contributory Ret. App. Bd. July 3, 2024.) See Bristol County Ret. Bd. v. Contributory Ret. App. Bd., 65 Mass. App. Ct. 443, 451-52 (2006). The Board correctly informed Mr. Swartz that he was required to work for at least five years following reinstatement for that service to count towards retirement.
Mr. Swartz has complied with the requirements of c. 32, § 105, to be reinstated. He has repaid to the system from which he retired an amount equal to the total amount of any retirement allowance received by the retired member, together with buy back interest. There is no evidence the Board did not accept the check. I do not read § 105 as providing that a Board must decline reinstatement to a member who challenges the 5-year requirement. Section 105(b) supra provides a remedy if a member is reinstated and then retires with less than five years of reinstatement service. The loss of creditable service for the reinstatement period should give one pause when considering working for less than five years.
I consider Mr. Swartz to be reinstated in accordance with c. 32, § 105. This means that his reinstatement date is December 20, 2023, which is the date he signed the application and his retirement repayment check. Walsh v. Reading Ret. Bd., CR-17-0665 (Div. Admin. Law App. May 20, 2025.)
The Board’s denial of Mr. Swartz’s reinstatement application is reversed. Mr. Swartz is to be reinstated with an effective date of December 20, 2023. The
Board shall take any necessary further action in accordance with this decision.
So Ordered.
Division of Administrative Law Appeals
Bonney Cashin
_____________________________________
Bonney Cashin
Administrative Magistrate
DATED: September 19, 2025
