MEMORANDUM AND ORDER OF JUDGMENT ON CROSS-MOTIONS FOR
JUDGMENT ON THE PLEADINGS
MICHAEL D. RICCIUTI, Justice of the Superior Court
plaintiff, the Plymouth Retirement Board ("PRB"),
brought this action seeking judicial review of a decision of
one of the defendants, the Contributory Retirement Appeal
Board ("CRAB"), which requires PRB to collect money
from one of its members, a police officer by the name of
Antonio Gomes ("Gomes") - money that PRB had
refunded to Gomes a decade earlier as the result of direction
given by defendant Public Employee Retirement Administration
Commission ("PERAC") and based on PERACâs then-view
of the law, the diametric opposite of CRABâs current view.
moves for judgment on the pleadings, asserting that CRABâs
reading of the applicable statute, G. L. c. 32 § 4(2)(b)
and (c), is erroneous as a matter of law, and asks this Court
to vacate CRABâs decision and remand the matter back to CRAB.
In response, CRAB and PERAC (collectively, "CRAB")
oppose and cross-move for judgment on the pleadings, seeking
an affirmation of CRABâs statutory interpretation and order.
detailed below, the Court concludes that CRABâs current
reading of the law is in error. Accordingly, PRBâs motion for
judgment on the pleadings is
ALLOWED, and CRABâs motion is
DENIED. This matter is
REMANDED to CRAB for further
proceedings consistent with this decision.
relevant facts are not disputed. This Court adopts the
findings of fact from the Division of Administrative Law
Appeals ("DALA") with CRABâs minor
June 21, 1987 and June 27, 1991, Gomes worked as a
permanent-intermittent police officer for the Town of
Plymouth. Because he worked as a permanent-intermittent or
temporary full-time police officer throughout that period,
Gomes was not eligible for membership in the Plymouth
Retirement System. On July 31, 1992, Gomes was appointed as a
permanent officer of the Plymouth Police Department, and
subsequently granted membership into the Plymouth Retirement
System on October 4, 1992.
1994 and 1998, Gomes was informed that he could purchase and
receive credit for up to five years of prior
permanent-intermittent service pursuant to G. L. c. 32 §
4(2)(b). In 1998, Gomes decided to purchase such credit
through payroll-deductions over a two-year period, and did so
for a payment in excess of $5, 000.
2003, following an audit of PRB, PERAC notified PRB that it
should not have required members, like Gomes, who had served
as permanent-intermittent police officers to remit
contributions to PRB to receive credit for service. PRB
thereafter refunded Gomes the contributions he had made to
receive that credit.
21, 2013, CRAB issued a decision in MacAloney v.
Worcester Regional Retirement System, CR-11-19 (June 21,
2013), which PRB contends reversed decades of PERAC practice,
in which CRAB found that § 4(2)(b) required MacAloney,
an on-call firefighter, to remit contributions to his
retirement system in order to receive credit for prior
service. Following this ruling, PERAC issued a series of
three memoranda instructing retirement boards on implementing
MacAloney. As a result, PRB notified Gomes that he
would be required to return the funds that he had previously
paid and which had been refunded to him in order to receive
credit for his past service.
filed a timely appeal with DALA, which on February 5, 2016,
ruled that under MacAloney, Gomes was required to
remit contributions, with interest, pursuant to §
4(2)(b). Gomes appealed to CRAB, which reaffirmed its
reasoning in MacAloney as applied to Gomesâ service
as a permanent-intermittent police officer and required that
Gomes remit payment in order to receive retirement credit for
that service. Under the order, PRB is required to collect the
payments and interest from Gomes.
brought this action pursuant to G. L. c. 30A § 14. Gomes
has not appealed CRABâs decision.