Opinion
14-P-1013
06-02-2015
LINDA GEARY v. PLYMOUTH COUNTY RETIREMENT BOARD & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from an adverse judgment ordered by a judge of the Superior Court that dismissed her complaint brought under the Administrative Procedure Act, G. L. c. 30A, § 14. Her complaint sought judicial review of a decision of the Contributory Retirement Appeal Board (CRAB) that affirmed the denial, by the Plymouth County Retirement Board (PCRB or "board"), of Geary's petition for a refund of the amount she paid to purchase credit for three years of prior service. She contends that, because her purchase was based upon erroneous information provided by the board, she is entitled to a return of those funds. We affirm.
Geary was a teacher in the Scituate public schools from 1967 to 1970 and, as such, she was a member of the Massachusetts Teachers' Retirement System (MTRS). After resigning from her position, she received a refund of her accumulated retirement deductions for that three-year period. In 1994, Geary accepted a nonteaching position and was required to become a member of the Plymouth County Retirement System. Starting approximately in 2004, Geary inquired of the board about the possibility of buying back the three years of creditable service. In June, 2005, Geary saw a newsletter article from the board indicating that the interest rate to be charged for buying back creditable service would increase in July, 2005, from .6 percent to 4.25 percent, thereby making such buybacks more expensive. The PCRB quoted Geary a buyback option of roughly $4,100 for the three years and Geary purchased it. Geary did not inquire about, and the board did not give Geary any advice regarding, possible interactions between her pension and any Social Security benefits to which Geary might be entitled. In any event, alleging she was influenced by this newsletter, Geary made the buyback, but not until after the 4.25 percent interest rate was in effect.
Geary now claims that this information was either misleading or inaccurate, and her buyback calculation was inaccurate as a result, requiring a refund. She contends that the newsletter suggested a historical interest rate for buybacks of .6 percent for the entire length of time relevant here, and that her buyback purchase amount was excessively high. We consider this claim to have been waived since it was not timely raised before CRAB; even if it were not waived, it is without merit, given that her buyback was subject to the flat rate of 4.25 percent.
In 2009, she discovered that she was entitled to claim spousal Social Security benefits on her husband's account, which would give her a higher benefit than she would receive if claiming on her own. However, she also learned that her spousal Social Security benefit would be reduced by the amount she received from the board in retirement benefits (about $500 per month). Geary met with a board official, who informed her that he himself would not have repurchased the retirement credit had he been in her position; this official also told her that, upon her written request, he would ask the board to refund her buyback amount. The board, without comment, denied the refund request in July, 2009.
After an initial round of administrative proceedings that are not relevant here, a Division of Administrative Law Appeals magistrate rejected Geary's arguments, deciding that G. L. c. 32 did not permit the board to refund the payment she "voluntarily remitted to the board in 2005 to purchase past service rendered," and that the board had no obligation to advise Geary as to the interaction between her pension and Social Security benefits. CRAB affirmed that decision. On Geary's G. L. c. 30A appeal, the judge likewise affirmed, stating that while "the court is sympathetic to Geary's position, the unfortunate result is that there were no errors that would permit, under the statute, for a refund of Geary's payment on her buyback."
A timeliness of appeal issue was resolved in favor of Geary.
As explained in Haverhill Retirement Sys. v. Contributory Retirement Appeal Bd., 82 Mass. App. Ct. 129, 131 (2012), "[a]ppellate review under G.L. c. 30A, § 14, is limited to determining whether the agency's decision was unsupported by substantial evidence, arbitrary and capricious, or otherwise based on an error of law," quoting from Arlington Contributory Retirement Bd. v. Contributory Retirement Appeal Bd., 75 Mass. App. Ct. 437, 441 (2009). Here, as in Haverhill, we are presented with a pure question of law. "We typically defer to CRAB's expertise and accord 'great weight to [its] interpretation and application of the statutory provisions it is charged with administering.'" Mackay v. Contributory Retirement Appeal Bd., 56 Mass. App. Ct. 924, 925 (2002), quoting from Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 257 n. 10 (1996).
Geary contends that because of errors by the PCRB, she is entitled to a refund of the amount she paid for creditable service years, pursuant to the provisions of G. L. c. 32, § 20(5)(c)(1). Geary argues, in effect, that because the board, in the newsletter article noted above, erroneously implied that buybacks would become more expensive in 2005, it effectively "induced" or "coerced" Geary to purchase the service credit and therefore, it should be required to refund her payment. However, Geary has not demonstrated that either the buyback interest rate increase mentioned in the newsletter, or the buyback amount itself, was erroneous. Additionally, Geary does not contend, correctly in our view, that the board has general fiduciary duties with respect to advising its members of all benefits and potential repercussions. We consider the circumstances here to be inapposite to those held to warrant adjustment in Herrick v. Essex Regional Retirement Bd., 465 Mass. 801, 809 (2013). Consequently, the newsletter information cannot be considered as the kind of error that § 20(5)(c)(1) was designed to correct; moreover, Geary's claim that the newsletter information was somehow coercive in influencing members to buy back credit is unsupported and without merit. Geary's decision to buy back creditable service was her own, and c. 32 contains no mechanism by which the board may refund a member's contributions in such circumstances. No error of law has been shown in the decision of CRAB, nor is it arbitrary or capricious.
This statute states: "Whenever any such board shall find it impossible or impracticable to consult an original record to determine the date of birth, length of service, amount of regular compensation or other pertinent fact with regard to any member, it may, subject to the approval of the actuary, use estimates thereof on any basis which in its judgment is fair and just. The board, upon discovery of any error in any record of the system, shall, as far as practicable, correct such record."
Indeed, in a CRAB administrative decision cited by Geary, CRAB noted that "[t]here is no general fiduciary duty to members in the trust sense. The duties and responsibilities of a retirement board are statutorily defined in Chapter 32." Benoit v. Bristol County Retirement Bd., CR-04-291 (March 6, 2006).
Additionally, Geary contends that the board had a duty, under the provisions of G. L. c. 32, § 20(5)(k), to advise her about the interaction between her pension and any Social Security benefits to which she may become entitled, and that its failure to do so requires it to refund her payments. She apparently claims that, had she known of the pension offset imposed by the Social Security Administration upon her pension on account of the spousal benefits she claimed under Social Security, she would never have made the buyback. However, we fail to discern any causal relationship between her decision to purchase the buyback and the possible impact of the Social Security offset provision, given her decision four years after her buyback to file a Social Security claim based on her husband's earnings record instead of her own.
Taken to its logical extreme, if the PCRB was required to return the buyback amount, thus requiring Geary's pension to return from $500 per month to its pre-buyback amount of $400 per month, then it would be entitled to demand a reimbursement of $100 for every month it had paid Geary the higher amount.
The board has no obligation to provide its members general retirement planning advice. More specifically, the statute indicates that a member is entitled to information concerning the "benefits to which such member is or may be entitled under the provisions of this chapter, . . . and the effect of such benefits, if any, on any benefits such member may be eligible to receive pursuant to the federal social security act" only "[u]pon the written request" of the member. G. L. c. 32, § 20(5)(k). The record demonstrates that Geary neither submitted such a written request pursuant to the statute at any relevant time, nor, when she committed herself to the buyback in 2005, and while she was still employed in the system, did she herself apparently know, and provide to the Plymouth County Retirement System, any information of her particular eligibility for Social Security benefits on her own account or that of her husband.
The record also indicates that at no time relevant to her claim had she sought information from the Social Security Administration. It appears from the record that the only time she had contact with it was in 2009, long after her buyback. However, she states she had access to a guide published by the Massachusetts Public Employee Retirement Administration Commission during the relevant time. Excerpts from such a guide appear in the parties' joint exhibits and one such excerpt states: "Benefits paid under the provisions of Chapter 32 will offset Social Security benefits in a variety of circumstances. Although a Massachusetts retirement allowance cannot be reduced as a result of other retirement benefits, Social Security benefits might be reduced.
"Individuals who are eligible to receive benefits from a Massachusetts contributory retirement system and from the federal Social Security System, as a result of their own employment or a combination of their own employment and benefits as a spouse or a surviving spouse should contact their local Social Security Office for detailed information."
Consequently, we agree with the decision of the judge that the plaintiff has failed to demonstrate that the decision of CRAB was inadequately supported, arbitrary, capricious, or otherwise in error.
Judgment affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 2, 2015.