Supreme Judicial Court of Massachusetts, Middlesex
Heard: October 5, 2016.
Municipal Corporations, Retirement board. Public
Employment, Retirement. Contributory Retirement
action commenced in the Superior Court Department on
February 6, 2014.
case was heard by Robert L. Ullmann, J., on motions
for judgment on the pleadings. The Supreme Judicial Court on
its own initiative transferred the case from the Appeals
Court. Douglas S. Martland, Assistant Attorney
General, for Contributory Retirement Appeal Board.
F. Gibson for Christine DeFelice.
Michael Sacco for the plaintiff.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
case requires us to answer two questions: (1) whether a
municipal retirement board possesses absolute discretion to
terminate a part-time employee's membership in a
retirement system to which that board has granted the
employee membership; and (2) even if such a board does not
have the power to terminate a part-time employee's
membership, whether a "separation from [an
employee's] service" under G. L. c. 32, § 3 (1)
(a.) (i), occurs when a part-time employee working two jobs
for the same municipal employer ceases to work only one of
those jobs. We answer both questions in the negative and
reverse the judgment of the Superior Court.
DeFelice began working on a part-time basis for the Stoneham
school department (department) in November, 2000. In April,
2001, she took on a second part-time job with the department
to fill a temporary vacancy, increasing her weekly workload
from nineteen and one-half hours per week to over thirty
hours per week for the ensuing nine weeks. At the end of the
nine-week period, DeFelice continued to work for the
department on a part-time basis until at least June, 2009,
only occasionally working more than nineteen and one-half
hours per week.
2009, DeFelice sought retroactive membership in the Stoneham
retirement system as an employee of the department, based on
the nine-week period in 2001 during which she worked over
thirty hours per week. Under the membership eligibility
criteria for part-time employees established by the Stoneham
retirement board (board) that were in effect during 2001,
Stoneham employees were eligible for membership in the
retirement system if they were scheduled to work more than
thirty hours per week for a period of more than seven
days.Initially, the board denied
DeFelice's membership application, because her increase
in hours was temporary. In August, 2010, the board
reconsidered its position and granted DeFelice retroactive
membership in the Stoneham retirement system for the
nine-week period in the spring of 2001, but denied her
membership for the subsequent time during which she remained
a part-time employee of the department. The board concluded
that DeFelice was not eligible following the nine-week period
because her weekly hours did not continue to satisfy the
appealed from the board's determination, seeking
membership for the years she continued to work for the
department as a part-time employee. The Contributory
Retirement Appeal Board (CRAB) assigned the case to the
division of administrative law appeals (DALA). DALA
determined that, once the board granted DeFelice membership,
it could not unilaterally terminate her membership status.
DALA concluded that the statute governing membership in a
public retirement system precluded the board, in the absence
of statutorily specified exceptions, from terminating the
membership of individuals who had been granted membership and
continued working for the same municipal employer. The board
objected, arguing that it possessed authority to terminate
the membership of non-full-time employees who failed to
satisfy its membership criteria. CRAB adopted DALA's
factual findings and affirmed its decision. The board sought
review pursuant to G. L. c. 30A, § 14. A judge in the
Superior Court reversed CRAB's decision, and DeFelice
appealed. We transferred the case here by our own motion, and
now reverse the judgment of the Superior Court.
law permits a municipality to establish a contributory
retirement system for the municipality's employees. See
G. L. c. 32, § 20 (4). The law further provides for the
establishment of municipal retirement boards to manage the
retirement systems in a manner consistent with applicable
laws. G. L. c. 32, § 20 (4) (b), (5) (b). Municipal
retirement boards have the power to make rules and
regulations "consistent with law, " subject to
approval by the public employee retirement administration
commission. G. L. c. 32, § 20 (5) (b) .
Laws c. 32, § 3 (2), sets forth various criteria that
establish "eligibility" for membership in a
retirement system. For example, individuals who are
"employees, " and therefore "regularly
employed, " are generally eligible for membership.
G. L. c. 32, § 3 (2) (a.) (x) . However, municipal
retirement boards possess "full jurisdiction" to
determine the eligibility of "part-time, provisional,
temporary, temporary provisional, seasonal or intermittent
employment or service of any employee in any governmental
unit." G. L. c. 32, § 3 (2) (d) .
the eligibility criteria for membership does not
automatically confer membership upon an employee. See G. L.
c. 32, § 1 (defining "member" as "any
employee included in" retirement system
[emphasis added]). See also Manning v. Contributory
Retirement Appeal Bd., 29 Mass.App.Ct. 253, 255 (1990)
(non-full-time employee was not member of retirement system
in absence of determination by pertinent retirement board).
Relevant to this case, an employee who is eligible to become
a member, but who fails or chooses not to do so, "may
apply for and be admitted to membership if [the employee is]
under the maximum [entry] age for [the employee's] group
on the date of [the employee's] application; provided,
that during [the employee's] present period of
service [the employee] had previously been eligible for
membership" (emphasis added). G. L. c. 32, § 3 (3).
In other ...