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Plymouth Retirement Board v. Contributory Retirement Appeals Board

Supreme Judicial Court of Massachusetts, Plymouth

December 3, 2019

PLYMOUTH RETIREMENT BOARD
v.
CONTRIBUTORY RETIREMENT APPEALS BOARD & another[1]

          Heard: September 5, 2019.

          Civil action commenced in the Superior Court Department on December 12, 2016. The case was heard by Michael D. Ricciuti, J., on motions for judgment on the pleadings.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Andrew M. Batchelor, Assistant Attorney General, for the defendants.

          Michael Sacco for the plaintiff.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ.

          LOWY, J.

         In this case, the parties ask that we determine whether a police officer who is a member of a municipal retirement system must remit payments under G. L. c. 32, § 4 (2), to obtain creditable service for prior work conducted as a permanent-intermittent police officer (PIPO). A Superior Court judge held that the Plymouth Retirement Board (Plymouth board) did not have to collect remittance payments from such members because G. L. c. 32, § 4 (2) (b), which expressly discusses PIPO creditable service does not mention a payment requirement. The Contributory Retirement Appeals Board (CRAB) appeals, arguing that the provision, considered in the context of the whole statute, mandates remittance payments by member police officers for past intermittent work. We agree with CRAB and therefore reverse.

         Statutory scheme.

         The Legislature created a "contributory retirement system" through which municipalities establish their own employee retirement systems, and form "municipal retirement boards to manage [those] systems." Retirement Bd. of Stoneham v. Contributory Retirement Appeal Bd., 476 Mass. 130, 132 (2016), citing G. L. c. 32, § 20 (4) (b), (5) (b). Members contribute to the system by payroll deductions. See G. L. c. 32, § 22. Retirement system members must be "regularly employed." Retirement Bd. of Stoneham, supra, citing G. L. c. 32, § 3 (2) (a.) (x) . A member's retirement benefits depend on the individual's years and months of "creditable service," among other factors. See G. L. c. 32, §§ 5, 10. Creditable service is governed by G. L. c. 32, § 4, and includes "all service rendered" while an employee is a member of a retirement system. See G. L. c. 32, § 4 (1) (a).

         Some service rendered prior to an employee becoming a member of the retirement system is creditable. G. L. c. 32, § 4 (2) (a.) . Local retirement boards have "full jurisdiction" to determine whether a new member may receive creditable service for "part-time, provisional, ... or intermittent employment."[2] G. L. c. 32, § 3 (2) (d). A retiree's benefits depend upon the individual's years and months of "creditable service" among other factors. See G. L. c. 32, §§ 5, 10. Once an intermittent employee becomes a member of the retirement system, the member may petition the relevant local retirement board to acquire creditable service for past intermittent work. See G. L. c. 32, § 4 (2) (a) .

         The statute permits local retirement boards to determine how much "service in any calendar year is equivalent to a year of [creditable] service" and how much creditable service is available for previous intermittent work. G. L. c. 32, § 4 (2) (b). However, for certain discrete employment categories, such as permanent-intermittent police positions, the statute limits the power of such boards to determine creditable service by mandating specific calculations. Id. For example, police officers must receive one year of creditable service, with a maximum of five years, for any time spent during the calendar year as "reserve or permanent-intermittent police officer[s] ... on [their] respective list[s] and eligible for assignment to duty." Id.

         To acquire creditable service for previous intermittent work, members must remit payments "with buyback interest" in "an amount equal to that which would have been withheld as regular deductions" had they "been a member . . . during [that] previous period." G.L. c. 32, § 4 (2) (c). Section 4 (2) (c) has no express exemptions from the purchase formula.

         Background and procedural history.

         Plymouth police officer Antonio Gomes is a member of Plymouth's contributory retirement system. Before becoming a permanent police officer, Gomes served as a PIPO -- someone who worked "only on such days as [he or she] might be called, and compensated accordingly." Costa v. Selectmen of Billerica, 377 Mass. 853, 854 (1979). Gomes actively engaged in police work and earned money for his intermittent work.

         In 1998, Gomes purchased full-time retirement credit for his prior intermittent service, with interest. In 2003, the Public Employee Retirement Administration Commission (PERAC) informed the Plymouth board that under G. L. c. 32, § 4 (2) (b), the board incorrectly had charged Gomes for the creditable service he earned as a PIPO. Despite the policy of the Plymouth board that member police officers must remit payments to obtain full-time credit for previous uncredited PIPO work, the board refunded Gomes's remitted payment, including the buyback interest.

         Ten years later, CRAB decided MacAloney vs. Worcester Regional Retirement Sys., No. CR-11-19 (amended June 21, 2013), ruling that member firefighters must remit payments to purchase retirement credit for past intermittent work under G. L. c. 32, § 4 (2) (c). See G. L. c. 32, § 4 (2) (b) (addressing credit to intermittent work of firefighters). As a result of the MacAloney decision, the Plymouth board advised Gomes that he must "remit those funds previously refunded, together with buyback interest," in part because "it had always been the policy of the [Plymouth board] to require members . . . who rendered prior service as a reserve ...


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