Hull Ret. Bd. v. Contributory Ret. Appeal Bd.

• Decision Date: 16 September 2014
• Docket Number: No. 13–P–1825.,13–P–1825.
• Citation: 15 N.E.3d 1163,86 Mass.App.Ct. 906
• Parties: HULL RETIREMENT BOARD v. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 906

15 N.E.3d 1163

HULL RETIREMENT BOARD

v.CONTRIBUTORY RETIREMENT APPEAL BOARD & others.¹

No. 13–P–1825.

Appeals Court of Massachusetts.

Sept. 16, 2014.

Michael Sacco for Hull Retirement Board.

Terence E. Coles, Boston, for David Leary.

Opinion

RESCRIPT.

The Hull retirement board (board) appeals from a Superior Court judgment affirming a decision of the contributory retirement appeal board (CRAB) upholding a division of administrative law appeals (DALA) magistrate's determination requiring the board to amend the effective retirement date of defendant David Leary. We affirm.

1. Background. Leary was a police officer in the town of Hull (town). On November 19, 2001, he sustained an injury on the job and was placed on accidental injury leave with full pay. See G.L. c. 41, § 111F, as amended through St. 1990, c. 313. Leary remained on § 111F leave until April 15, 2003, when the chief of police (chief) removed him from paid injury leave status and placed him on an unpaid leave of absence. Leary believed the chief's action did not comply with the law, and sought to have the town reinstate his § 111F benefits. In the meantime, in July, 2003, Leary applied for accidental disability

retirement under G.L. c. 32, § 7. The board approved Leary's application on January 30, 2004. His disability retirement allowance became effective as of April 15, 2003, the last day that Leary received compensation in the form of his § 111F benefits.

Notwithstanding his application for retirement and the subsequent approval of that application, Leary continued to seek payment of § 111F benefits from the town, specifically for the period between April 15, 2003, and January 30, 2004. An agreement for payment initially was reached but unraveled when, on the advice of defendant public employee retirement administration commission (PERAC), the board refused to change Leary's effective retirement date from April 15, 2003, to January 30, 2004. In 2006, Leary filed suit, seeking enforcement of his agreement with the town.

In March, 2008, Leary and the town entered into a settlement agreement, later reduced to a judgment, whereby the town would pay Leary $44,424.47 in additional § 111F benefits to cover the period from April 15, 2003, to January 30, 2004. Pursuant to the agreement, the funds were placed in an escrow account, with release to Leary “pending the outcome of Leary's efforts to get the [board] and/or Commonwealth of Massachusetts, either through its administrative agencies and/or judicial system, to recalculate his retirement benefits based on Leary's receipt of the additional Section 111F benefits.” Leary presented his case to the board; it again refused. Leary appealed the board's decision to DALA² and, following a hearing, a DALA magistrate ordered Leary's retirement date to be corrected to January 30, 2004, and his retirement allowance recalculated accordingly. CRAB affirmed the DALA decision; a judge of the Superior Court likewise affirmed CRAB's decision. This appeal followed.

2. Discussion.³ General Laws c. 41, § 111F, governs leave with pay status for police officers and firefighters injured in the line of duty through no fault of their own. The statute provides for payment until a recipient is either “retired or pensioned” or “such incapacity no longer exists”; amounts payable under § 111F “shall be paid at the same times and in the same manner as, and for all purposes shall be deemed to be, the regular compensation of such police officer or fire fighter.” General Laws c. 32, § 7, provides accidental disability retirement for qualified members in service. Leary's effective retirement date under G.L. c. 32, § 7, is “the date ... he last received regular compensation for his employment in the public service.”⁴ G.L. c. 32, § 7(2), as amended through St. 2000, c. 123, §§ 23A, 24. The DALA magistrate, CRAB, and the Superior Court judge each determined that the escrowed supplemental § 111F payments constituted “regular compensation” received by Leary, as provided by § 111F, such that Leary's effective retirement date was required to be changed to January 30, 2004, to comport with the requirements of G.L. c. 32, § 7(2). We agree.

The town having concluded that Leary was entitled to the additional § 111F benefits, the parties crafted a settlement agreement memorializing that entitlement and the means of payment. To avoid an apparent windfall, and to take into account the board's role in recalculating Leary's retirement benefit, the terms of the agreement include provisions for either repayment to the board of any prior retirement amounts incorrectly paid or reversion of the escrow funds to the town. The agreement does not, however, vest the board with the authority to veto Leary's entitlement to...