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17-P-66                                               Appeals Court

     WORCESTER REGIONAL RETIREMENT BOARD vs. CONTRIBUTORY
               RETIREMENT APPEAL BOARD & others.1


                              No. 17-P-66.

        Worcester.       October 11, 2017. - November 29, 2017.

              Present:   Milkey, Massing, & Ditkoff, JJ.


Contributory Retirement Appeal Board. County, Retirement board.
     Municipal Corporations, Retirement board, Pensions. Public
     Employment, Retirement, Retirement benefits. Retirement.
     Pension.


     Civil action commenced in the Superior Court Department on
September 15, 2015.

     The case was heard by Shannon Frison, J., on motions for
judgment on the pleadings.


    Michael Sacco for the plaintiff.
    Thomas F. Gibson for Middlesex County Retirement Board.


    MASSING, J.      The Worcester Regional Retirement Board (WRRB)

appeals from a judgment of the Superior Court, which affirmed a

decision of the Contributory Retirement Appeal Board (CRAB)


    1
        Middlesex County Retirement Board; Brian Pierce.
                                                                     2


requiring the WRRB to permit a former member to purchase nine

additional months of creditable service.2    At issue is whether

the WRRB is responsible for not having enrolled the employee,

Brian Pierce, as of the day he became eligible for membership,

or whether Pierce had an affirmative obligation to ensure that

he had been enrolled as of his start date.    CRAB determined that

the responsibility lay with the WRRB, not the employee; that the

retirement system records should be corrected to reflect

Pierce's nine months of uncredited membership; and that Pierce

should be permitted to buy back the time of which he had

erroneously been deprived.   Discerning no legal error or abuse

of discretion on CRAB's part, we affirm.

     Background.   Pierce began permanent, full-time employment

as a third-class lineman for the Princeton Municipal Light

Department, which is a member unit of the Worcester Regional

Retirement System (WRRS), on December 6, 1982.    On October 24,

1983, Pierce completed a new entrant enrollment form "[i]n order

that [he] may be properly enrolled" in the WRRS.3    The WRRB

stamped the form as received on November 18, 1983.    The form

     2
       Neither CRAB nor Pierce has participated in this appeal.
Their interests have been represented by the Middlesex County
Retirement Board, the pension system of which Pierce was a
member when he retired.
     3
       Pierce dated the form October 24, 1982. As the Princeton
treasurer verified the form on October 24, 1983, and the form
referenced a start date of December 6, 1982, it is most likely
that Pierce misdated his signature.
                                                                   3


correctly indicated that Pierce's full-time permanent employment

had begun on December 6, 1982.   The WRRB enrolled Pierce as a

member as of September 1, 1983, crediting him with service prior

to its receipt of his enrollment form, but not for the first

nine months of his employment starting on December 6, 1982.

     Pierce's service with the town of Princeton ended on May 1,

1986, when he took a similar position with the Middleborough

Light Department.   At that time, Pierce became a member of the

Plymouth County Retirement System, and his funds in the WRRS,

representing two years and eight months of service (September 1,

1983, to May 1, 1986) were transferred to the Plymouth system.

After ten years and one month of service in Middleborough,

Pierce went to work for the Littleton Light Department, and his

funds within the Plymouth system were transferred to the

Middlesex County Retirement System (MCRS).   On June 30, 2008,

after eleven years and nine months of service in Littleton,

Pierce retired from service with superannuation retirement

benefits through the MCRS.4

     Shortly before his retirement, Pierce initiated a request

to purchase from the WRRS the nine months of full-time service

     4
       As of May 14, 2009, the Public Employee Retirement
Administration Commission calculated that the WRRS was
responsible for 10.84761 percent of Pierce's total service time,
based on the two years and eight months between September 1,
1983, and May 1, 1986, and directed the WRRB to reimburse the
MCRB $2,630.06 yearly toward Pierce's retirement allowance.
                                                                    4


for which he had not received credit.5   Following a series of

communications among Pierce, the town of Princeton, the WRRB,

and the MCRS, the WRRB declined to accept Pierce's request and

denied liability for his noncontributing service period.

     Pierce, joined by the MCRS, timely appealed from the WRRB's

decision to the Division of Administrative Law Appeals (DALA).

A DALA magistrate concluded that because Pierce correctly

indicated his start date when he applied for membership, "the

WRRB had notice of [his] membership status and eligibility to

purchase that service as of the date he became a member."   The

magistrate further stated, "There was no additional onus on

[Pierce] to be proactive and request to purchase said service at

that time.   [Pierce] was entitled to retroactive membership from

the moment the WRRB accepted the enrollment form.   The omission

was an error of the board."   Accordingly, the magistrate

concluded that "the omission of [Pierce] from the system from

his date of hire through September 16 [sic], 1983 was an error




     5
       A Division of Administrative Law Appeals magistrate
decided the case on memoranda and documents without an
evidentiary hearing. She enumerated "stipulations of fact" from
those materials. She set forth that Pierce made the request to
purchase his service in October, 2009. The CRAB incorporated
the magistrate's "findings of fact" but further found that
"Pierce's request to provide make-up payments for this time was
made on or before May 12, 2008, prior to his retirement." The
CRAB's finding in this regard is supported by documentary
evidence in the record.
                                                                    5


of the WRRB which must be corrected pursuant to G. L. c. 32,

§ 20(5)(c)(1)."

    The WRRB appealed from the DALA magistrate's decision to

CRAB.   CRAB adopted the magistrate's findings and conclusions,

adding, "Pierce's application for membership listed his date of

hire and should have resulted in his enrollment commencing on

that date, with any makeup payments necessary.   Under these

circumstances he was not required to make a specific request to

purchase those nine months of credible service."

    The WRRB sought judicial review of CRAB's decision under

G. L. c. 30A, § 14, and a Superior Court judge affirmed CRAB's

decision.   This matter is before us on the WRRB's appeal from

the Superior Court judgment.

    Discussion.    The standard of review of a CRAB decision in

these circumstances is well established.   "Appellate review

under G. L. c. 30A, § 14, is limited to determining whether the

agency's decision was unsupported by substantial evidence,

arbitrary and capricious, or otherwise based on an error of

law."   Arlington Contributory Retirement Bd. v. Contributory

Retirement Appeal Bd., 75 Mass. App. Ct. 437, 441 (2009).      We

defer to CRAB's expertise, even when conducting de novo review

of legal questions, see ibid.; Haverhill Retirement Sys. v.

Contributory Retirement Appeal Bd., 82 Mass. App. Ct. 129, 131

(2012), but "we are not bound by what we believe is an agency's
                                                                    6


erroneous interpretation of its statutory authority."     Bristol

County Retirement Bd. v. Contributory Retirement Appeal Bd., 65

Mass. App. Ct. 443, 451 (2006).

     CRAB concluded that the WRRB's failure to enroll Pierce as

of his start date was an error subject to correction under G. L.

c. 32, § 20(5)(c)(2).   This section applies "[w]hen an error

exists in the records maintained by the system or an error is

made in computing a benefit and, as a result, a member or

beneficiary receives from the system more or less than the

member or beneficiary would have been entitled to receive had

the records been correct or had the error not been made."    G. L.

c. 32, § 20(5)(c)(2), as appearing in St. 2000, c. 159, § 91.

In such cases, "the records or error shall be corrected," the

member shall make up any underpayment or be reimbursed for any

overpayment, and future benefit payments are to be recalculated.

Ibid.   "This section effectively acknowledges that the

retirement law is a complicated combination of various

legislative efforts occurring at different times and for

different purposes, that it is difficult to administer, and that

it is inevitable that mistakes in implementation will be made."

Bristol County Retirement Bd., 65 Mass. App. Ct. at 449.     The

plain language of this section covers the situation here, where

an error exists in the WRRB's records such that Pierce is

receiving lower benefits than he is entitled to receive.
                                                                    7


    The WRRB raises a number or arguments why § 20(5)(c)(2)

should not apply, none of them availing.   First, the WRRB

asserts that the CRAB decision is contrary to G. L. c. 32,

§ 3(3), as appearing in St. 1960, c. 535, "Late Entry into

Membership," which permits employees who "failed to become or

elected not to become" a member of a retirement system to "apply

for and be admitted to membership" retroactively under certain

conditions.   The WRRB argues that because this provision is

permissive -- members are not required to buy back service -- it

puts the onus on employees to take affirmative steps to purchase

creditable service.   Under the circumstances of this case, we do

not agree that § 3(3) applies.

    Rather, we agree with the Superior Court judge that "Pierce

neither failed to become nor elected not to become a member of

WRRB.   He ultimately became a member of the WRRS when he

submitted his Enrollment Form, and his efforts were only

frustrated due to WRRB's error."   Simply put, this appeal does

not present a case of "late entry."

    The WRRB also argues that it cannot be ordered to reimburse

the MCRS for benefits attributable to Pierce's first nine months

of service because those nine months did not "pertain" to the

WRRB within the meaning of G. L. c. 32, § 3(8)(c).   The WRRB

relies in part on Haverhill Retirement Sys., 82 Mass. App. Ct.

at 133-134, where we held that an employee's service in a
                                                                   8


retirement system in which he was erroneously enrolled

nonetheless "pertained" to that system because it accepted and

had the use of contributions made on behalf of the employee.

The WRRB's reliance on Haverhill Retirement Sys. is misplaced:

although it did not have the benefit of contributions associated

with Pierce's membership for the first nine months of his

service in Princeton, this was only because the WRRB had failed

to enroll him for those nine months, during which he was

eligible for membership.

    The WRRB further claims that employment does not "pertain"

to a particular system unless the employee is a member of that

system.   In support of this claim, the WRRB cites prior DALA

decisions stating that "where a member of a retirement system

seeks to buy back prior service in a different retirement

system, the 'different' system is not required to accept

liability for that service, where the former employee was not

entitled to membership in that system when rendering that

'prior' service" (emphasis supplied by the WRRB).   Here,

although Pierce was not a member of the WRRS, he was entitled to

membership at the relevant time.   His uncredited service

"pertains" to the WRRS.

    Finally, the WRRB argues that CRAB's decision is invalid

because it did not make a liability determination under G. L.

c. 32, § 3(8)(c).   In fact, the DALA magistrate stated, "A
                                                                   9


review of the record in this case renders the interpretation

that the system with the liability for [the nine-month period]

is the WRRS."   Nonetheless, the magistrate also noted that the

issues of the parties' precise liability was not before her, but

was for "PERAC, the actuary" to determine.   See G. L. c. 32,

§ 1, as amended by St. 1996, c. 306, § 6 (defining "actuary" in

relevant part as "a member of the staff of the public employee

retirement administration commission"); G. L. c. 32, § 3(8)(c)

(reimbursements between retirement systems to be computed by the

actuary).   We discern no error.

                                   Judgment affirmed.
