Supreme Judicial Court of Massachusetts, Plymouth
Heard: September 5, 2019.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
M. Batchelor, Assistant Attorney General, for the defendants.
Michael Sacco for the plaintiff.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, &
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.
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).
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." 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)
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."
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.
and procedural history.
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
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.
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 ...