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Petitioner Theodore Sigman appeals from a decision of the Division of Administrative Law Appeals (DALA) affirming a decision of respondent Teachers' Retirement System (TRS) denying his request, under G. L. c. 32, § 4(1)(p), to purchase creditable service for his work as a teacher at a nonpublic school. DALA heard the matter on January 23, 2007, and admitted six exhibits. The DALA decision is incorporated by reference and its Findings of Fact 1-6, which are not in dispute, are adopted as our own. For the reasons stated below, we reverse. 1
Subject to certain other conditions not material to this case, Section 4(1)(p) allows a member of the teachers' retirement system "who is engaged in a teaching position . . . who was previously engaged in teaching pupils in any non-public school in the commonwealth," to "establish such service as creditable service," provided, however, that "no credit shall be allowed . . . for any service for which the member shall be entitled to receive a retirement allowance, annuity or pension from any other source." Sigman began teaching in the Ipswich public schools in 1976, at which time he became a member of the system. Previously, from September 1972 to June 1975, he had worked as a full-time special education teacher at the publicly-funded, but nonpublic, Lakeside School.
In June 2005, Sigman applied under Section 4(1)(p) to purchase his service at the Lakeside School. A few days later, TRS denied Sigman's application. DALA affirmed the denial, holding that, because "Sigman is entitled to Social Security benefits due in part to his service at the Lakeside School, he is not entitled to credit under [Section 4(1)(p)]." 2
The parties' dispute in this case thus concerns whether, for purposes of Section 4(1)(p), Social Security benefits count as a "retirement allowance, annuity or pension from any other source." A 1975 Opinion of the Attorney General, issued at the request of the Teachers' Retirement Board shortly after the enactment of Section 4(1)(p), considered this very question. The Attorney General opined that Social Security benefits do not trigger the statute's disqualifying proviso: "'Retirement allowance,' 'annuity' and 'pension' are words and phrases defined in c. 32, § 1, with reference to the state system therein established. On the other hand, the Social Security System sounds in the tenor of 'Old Age, Survivors and Disability Insurance Benefits' (see 42 U.S.C.A. §§ 401, et seq.), yet no reference is made in [the statute] to 'insurance benefits' or directly to the Social Security System itself. Obviously any employment in a non-public school is such as would be covered by the Social Security Act. The Legislature has declared hereby to exist a public service deserving of recognition under c. 32 by virtue of employment in a non-public school, so long as funding for tuition came from the Commonwealth. To say that Federal Social Security coverage excludes service from being considered would be to render [the statute] a nullity and frustrate the legislative intent." 3
TRS followed the Opinion of the Attorney General for about 20 years. 4 Its current view, however, is that the opinion "has been rejected" by two Appeals Court decisions. 5 Our difficulty with TRS's contention is that neither court opinion mentions, or even indirectly refers to, the Opinion of the Attorney General; indeed, his opinion does not appear to have been called to the attention of the court; and the two court opinions construe a different provision of Chapter 32, whose disqualifying proviso reads differently than that in Section 4(1)(p). "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." 6Accordingly, we cannot accept at face value the proposition that the Appeals Court, in construing G. L. c. 32, § 3(4A), intended sub silencio to reject the opinion, about different language in G. L. c. 32, § 4(1)(p), by "the chief law officer of the Commonwealth, with the power to set a unified and consistent legal policy for the Commonwealth." 7
We, therefore, proceed to a more detailed consideration of the two Appeals Court opinions. The first case, Flaherty, involved a member of the teachers' retirement system who "applied for the purchase of fourteen years of creditable service for her non-public school service under both G. L. c. 32, § 3(4A) and § 4(1)(p)." 8 The Teachers' Retirement Board informed her, however, that she could not purchase more than 10 years of creditable service, the maximum under each of these statutes. Flaherty argued that the two statues "are unrelated to one another" and, therefore, she should be permitted to purchase up to10 years of creditable service under each provision, for a total maximum of 20 years of creditable service. 9
Rejecting Flaherty's argument, the Appeals Court held that "[t]he sections are not unrelated," but rather "relate to the same subject matter insofar as each section provides teachers who have taught in nonpublic schools with the ability to purchase retirement credits within specified limits." 10 Because the two statutes concern related subject matter, they "'should be construed together so as to constitute a harmonious whole consistent with the legislative purpose.'" 11 "When the two related sections are construed together, the amount of creditable service that may be purchased by an eligible teacher is ten years, not twenty." 12 The Appeals Court reinforced its conclusion with the consideration that Flaherty's construction of the statute would enable some teachers "to double their creditable service [on account of teaching in nonpublic schools] beyond the number of years of service actually rendered," which "would be neither harmonious nor consistent with a legislative retirement scheme created for the benefit of public employees." 13
We read Flaherty as confirming that Sections 3(4A) and 4(1)(p) concern related subject matter, namely, the purchase of creditable service for teaching in nonpublic schools, and that they must be read together consistently with the manifest intent of the Legislature.
Dube, the second case, involved only Section 3(4A), and the Appeals Court opinion does not mention, much less discuss, Section 4(1)(p). Under Section 3(4A), a member of the teachers' retirement system may purchase creditable service for certain nonpublic school service, "provided that no credit shall be allowed . . . for any service on account of which the member shall be entitled to receive a retirement allowance or other similar payment from the nonpublic school system, the federal government or any other source." The issue in Dube was whether, as we had held and the Massachusetts Teachers' Retirement Board argued, Dube's entitlement to federal social security benefits, based in part on his nonpublic school service, disqualified him from being able to purchase that service; or, as Dube argued, he was not disqualified because his entitlement to social security was not due solely to his nonpublic school service. As is evident from the briefs to the Appeals Court in Dube, the parties assumed without comment that a member's entitlement to social security benefits can trigger the above-quoted proviso. The Appeals Court made the same assumption.
Recalling, again, that "[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents," 14 we understand Dube's holding to be limited to the proposition that the proviso in Section 3(4A) can be triggered without prior employment in the nonpublic school system having been the sole or exclusive basis for a teacher's entitlement to a retirement allowance or other similar payment from the nonpublic school system, the federal government or any other source. As the Court itself explains, accepting Dube's construction of the proviso would require the Court "to insert the word 'exclusively' or 'solely' . . . However, 'we will not add to a statute a word that the Legislature had the option to, but chose not to, include.'" 15
The present case, of course, arises under Section 4(1)(p), not Section 3(4A). Although the two sections are related, their disqualifying language contains a potentially significant difference. The proviso in Section 4(1)(p), the earlier-enacted of the two, only is triggered by "service for which the member shall be entitled to receive a retirement allowance, annuity or pension from any other source." Subsequently, in enacting Section 3(4A), the Legislature, without amending the existing language in Section 4(1)(p), changed "retirement allowance, annuity or pension from any other source" to "retirement allowance or other similar payment from the nonpublic school system, the federal government or any other source."
Between the Legislature's enactment of the two sections, the Attorney General opined that Social Security benefits do not trigger the proviso in Section 4(1)(p). Presuming that the Legislature was aware of the official opinion of "the chief law officer of the Commonwealth, with the power to set a unified and consistent legal policy for the Commonwealth," 16 we conclude that the Legislature employed different language in Section 3(4A) to achieve a result somewhat different than that provided for in Section 4(1)(p). 17 Specifically, we read the broader language in Section 3(4A) as broadening the scope of that section's disqualifying proviso beyond the scope of the disqualification contained in Section 4(1)(p).
Indeed, we do not need this presumption to arrive at this conclusion: The Legislature must be presumed to have been aware of the language of Section 4(1)(p) itself; by choosing substantively different, broader language in enacting Section 3(4A), the Legislature manifested its intention that that section's disqualifying proviso reach more broadly than the disqualifying language in Section 4(1)(p). For example, construing "retirement allowance, annuity or pension," in Section 4(1)(p), as including Social Security benefits impermissibly would render superfluous the Legislature's insertion, in Section 3(4A), of the words "or other similar payment." Nor will we add words to Section 4(1)(p) that the Legislature "did not put there, either by inadvertent omission or by design." 18
The DALA decision is reversed. Unless some other impediment exists that TRS properly may raise at this stage of the proceedings, Sigman is entitled to purchase the nonpublic school service he rendered at the Lakeside School.
CONTRIBUTORY RETIREMENT APPEAL BOARD
Joseph I. Martin
Public Employee Retirement Administration Commission Appointee
David A. Guberman
Assistant Attorney General
Attorney General's Appointee
Date: December 23, 2008