Opinion
No. 15–P–1677.
10-03-2016
Robert DESMOND v. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Robert Desmond appeals from a judgment of the Superior Court affirming the decision of the Contributory Retirement Appeal Board (CRAB) that his retirement benefit rate must be calculated pursuant to G.L. c. 32, § 5(2)(e ), and that the exception contained therein does not apply. We affirm.
Desmond also appeals from the order denying his motion for reconsideration.
Background. Effective September 1, 2011, Desmond retired after many years of work for various public school systems in Massachusetts and elsewhere. Between 1976 and 1983, he worked for the city of Boston and made retirement contributions to the State Boston Retirement System (SBRS). When he concluded that period of service, he withdrew his contributions from the SBRS. Between 1986 and 2004, Desmond worked for schools in the city of Lynn and various other municipalities, and made retirement contributions to the Massachusetts Teachers' Retirement System (MTRS). He did not withdraw his contributions from the MTRS at the end of his service.
For convenience, we refer to each Massachusetts school system by the name of the municipality it serves.
Note 2, supra, notwithstanding, the record is unclear as to whether his work during this particular period of time was as a teacher.
Desmond later was hired to serve as the director of special education in the town of Weymouth for the 2008–2009 school year. However, he was terminated from that position, and he sued Weymouth for wrongful termination. In September, 2010, while his suit was pending, he became the director of special education in Boston. Then, in June of 2011, he settled his case. Among other things, Weymouth agreed to pay his salary through the end of the 2010–2011 school year, with deductions for the salary he earned in Boston as well as for contributions to the MTRS that he would have made had he not been terminated from Weymouth.
At around the same time, Desmond received notice that he would be laid off from his position in Boston due to a reduction in force. This prompted him, on June 23, 2011, to file a notice of intent to retire. SBRS requested a transfer of whatever funds he had with the MTRS, and MTRS complied. Thereafter, after concluding his work in Boston, he purchased prior creditable service in the SBRS by redepositing, with interest, contributions for ten years and three months of prior service in Boston and out of State.
A dispute ensued as to whether SBRS should treat Desmond as a dual member. Ultimately, the Public Employee Retirement Administration Commission (PERAC) concluded that he was a dual member; however, PERAC also determined that G.L. c. 32, § 5(2)(e ), applied. Because this provision would reduce his anticipated retirement allowance, Desmond appealed to CRAB, which assigned the case to a magistrate at the Division of Administrative Law Appeals (DALA). Upon receipt of the magistrate's decision, Desmond filed objections with CRAB.
CRAB adopted the magistrate's findings of fact and reached the same conclusion as PERAC: Desmond's retirement allowance was to be calculated under § 5(2)(e ) because he had concurrently received regular compensation from Boston (his salary as director of special education) and Weymouth (his salary paid under the settlement). CRAB further determined that Desmond did not fall within the grandfather clause of § 5(2)(e ) because that clause required that he be vested in both systems—the MTRS and the SBRS—as of January 1, 2010, and he was not vested in the SBRS as of that date.
Discussion. At issue is the interpretation and application of G.L. c. 32, § 5(2)(e ), which was enacted as part of pension reform in mid–2009. See St.2009, c. 21, § 7. We review questions of statutory interpretation de novo. Meikle v. Nurse, 474 Mass. 207, 209 (2016). At the same time, in cases involving an agency's interpretation of a statute within its charge, we give “due weight to the experience, technical competence, and specialized knowledge” of the agency. Evans v. Contributory Retirement Appeal Bd., 46 Mass.App.Ct. 229, 233 (1999). The statute's “plain meaning” will serve as our “primary interpretive guide.” Massachusetts Teachers' Retirement Sys. v. Contributory Retirement Appeal Bd., 466 Mass. 292, 298 (2013).
Relevant here is the following statutory language:
“A person who has been a member of 2 or more systems and who, on or after January 1, 2010, has received regular compensation from 2 or more governmental units concurrently shall, upon retirement, receive a ... retirement ... equal to the sum of the benefits calculated pursuant to this section as though the member were retiring solely from each system; provided ... that this section shall not apply to any member who has vested in 2 or more systems as of January 1, 2010 ” (emphasis supplied).
G.L. c. 32, § 5(2)(e ), inserted by St.2009, c. 21, § 7.
Subsequent amendments to this section, effective July 1, 2014, are not applicable. See St.2014, c. 165, §§ 67 and 68.
Desmond argues that the underscored language permits his September, 2011, purchase of service credits in the SBRS not only to vest him, but also to vest him retroactively to January 1, 2010. In a related vein, he claims that as of January 1, 2010, he had the “right to purchase” prior service credits in the SBRS sufficient to vest, and this sufficed to satisfy the grandfather clause. We disagree. Unlike DiGianni v. Contributory Retirement Appeal Bd., 421 Mass. 350, 353 (1995), on which Desmond relies, the statutory language here is clear and unambiguous. To fall within the grandfather clause, Desmond actually must have “vested in [both] systems as of January 1, 2010.” G.L. c. 32, § 5(2)(e ). The use of the present perfect tense, which Desmond highlights, does not create ambiguity.
Clawson v. Worcester Regional Retirement Sys., Div. of Admin. Law Appeals, No. CR–10–33 (March 18, 2011), relied upon by Desmond, is inapplicable. This case is not binding; it chiefly concerns a different provision, i.e., G.L. c. 32, § 4(1)(o ) ; and the teacher in that case actually had, before January 1, 2010, taken the final step toward vesting by tendering payment for prior service.
Desmond also cites certain retirement provisions exclusive to teachers, G.L. c. 32, § 5(4)(i)-(ii) ; however, nothing in those provisions permits retroactive vesting. Furthermore, there is no disharmony between those provisions and § 5(2)(e ) that gives rise to ambiguity. The plain meaning of § 5(2)(e ), therefore, is “conclusive.” Meikle, 474 Mass. at 210 (citation omitted). ,
Other subsidiary points have not been overlooked. We find nothing in them that requires discussion. Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004).
We acknowledge postbriefing submissions from Desmond and PERAC. As they do not bear on the issues before us, we do not address them.