MAINE SUPREME JUDICIAL COURT                                     Reporter of Decisions
Decision: 2014 ME 26
Docket:   BCD-13-212
Argued:   October 9, 2013
Decided:  February 20, 2014

Panel:      ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.
Majority:   ALEXANDER, LEVY, MEAD, and GORMAN, JJ.
Dissent:    SILVER, J.



                             KENNEBEC COUNTY

                                        v.

             MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM


ALEXANDER, J.

       [¶1] Kennebec County appeals from a judgment entered in the Business and

Consumer Docket (Horton, J.) that affirmed a decision of the Board of Trustees for

the Maine Public Employees Retirement System (MPERS).             The Board had

implicitly or explicitly concluded that: (1) MPERS had authority to adjudicate

claims that some County employees were inadequately advised of their option to

join MPERS at the time the employees were initially hired long before the

employees began efforts to join MPERS; (2) at each employee’s initial hiring, the

County was obligated to adequately apprise its employees of MPERS’s existence,

their eligibility to participate in the MPERS retirement plan, and the terms of the

plan; and (3) the County had failed to meet that obligation with respect to certain

employees.
2

        [¶2] Based on those conclusions, the Board ordered the County to pay the

local government contribution, with interest, and the interest on each employee’s

contribution, for the many years between when these employees were hired

full-time and when they were found to have been informed of their eligibility to

enroll in MPERS.          We conclude that MPERS and its Board lacked statutory

authority to decide the inadequate advice at hire claims, and therefore vacate the

judgment.1

                                       I. CASE HISTORY

        [¶3] Kennebec County has been a Participating Local District (PLD) in the

Maine Public Employees Retirement System, formerly the Maine State Retirement

System, since 1951.            At all times relevant to this appeal, eligible County

employees have had the option of joining MPERS.                        After an employee joins

MPERS, the County pays a local share and the employee provides the member

contribution of the total cost of membership in MPERS. The County also has a

“Social Security 218 Agreement,” and, since 1982, has offered Social Security

coverage to County employees. The County joined the Consolidated Retirement

Plan for PLDs in 1995.




    1
     The County presented additional arguments on appeal that, given our holding in this case, we do not
reach.
                                                                                                  3

       [¶4] There is no dispute that some County employees hired between 1985

and 2002 were informed by County personnel, at the time of hire, of their option to

elect to participate in MPERS. Information about employee enrollment in MPERS

was also disseminated from time to time through memoranda to County

department heads or other means. However, Kennebec County did not have a

standardized system for disseminating MPERS information to newly hired

employees and for documenting elections to join or not join MPERS until 2002.

       [¶5]     After a MPERS staff member made a presentation to County

employees in February 2008, three employees hired full-time by Kennebec

County—one in 1986, one in 1987, and one in 2000—informed MPERS that they

had not been informed about their eligibility to join the retirement system.2 In

response to a March 2008 inquiry by MPERS staff, the County reported that,

although it could produce no specific documentation showing that those employees

had been offered enrollment in MPERS, the County had conducted an

investigation and concluded, based on the evidence it had obtained, that the

petitioning employees had been informed of their eligibility for MPERS

membership when they were hired.




  2
     A fourth County employee, involved at the administrative hearing level, is not involved in this
appeal.
4

           [¶6]    MPERS staff informed Kennebec County that, unless it provided

documentary evidence that the employees had been informed of their eligibility to

join the retirement system and that the employees had declined participation, the

County would be responsible for back employer contributions and interest for

these, and any other similarly situated, employees if they elected to enroll in

MPERS. The County could not provide documentation satisfactory to MPERS

staff regarding information that had been provided to the petitioning employees

when they were hired twenty-two, twenty-one, and eight years previously. The

County requested that MPERS’s Executive Director review the MPERS staff’s

determination in December 2008.3

           [¶7] The Executive Director issued an initial decision in January 2009 and a

final decision in August 2009 in favor of MPERS. The County appealed from the

Executive Director’s decision to MPERS’s Board of Trustees.                    The Board

appointed a hearing officer to hold an evidentiary hearing and prepare a

recommended final decision. See generally 5 M.R.S. § 17106-A (2013). Among

other issues, the County argued before the Board that MPERS lacked jurisdiction

to decide the employee election issues.

           [¶8] After holding an evidentiary hearing in February 2010, the hearing

officer issued an initial report in favor of the County in June 2010, recommending


    3
        The Executive Director’s designee conducted the review at that time.
                                                                                                       5

that the Executive Director’s decision be reversed.                        However, following a

communication from the Board’s legal counsel suggesting that the County

employees at issue be offered an opportunity to participate in the proceedings, the

hearing officer held additional hearings in December 2010 to take evidence from

the County and its employees. The hearing officer then issued a redrafted report

and recommended decision in June 2011 and a final report and recommended

decision in August 2011, finding in favor of MPERS.

        [¶9]    The recommended decision required Kennebec County to pay to

MPERS the County’s share of each employee’s retirement contributions from the

date each employee was hired full-time to the date he or she was found to have

been informed of his or her MPERS eligibility, plus interest on both employer and

employee contributions for that period. 4 On November 28, 2011, the Board

essentially adopted the hearing officer’s factual findings and recommendations.5




   4
     One employee at issue enrolled in MPERS for a short period in 2008, ceased making contributions,
and reenrolled in 2010, and the other two employees enrolled in MPERS in 2010.
   5
     Specifically, the Board concluded that County employees had a statutory right pursuant to “5 M.R.S.
§ 18252” to participate in the retirement system, and, accordingly, the County was obligated under State
and federal law to “adequately apprise its employees of the existence of MainePERS, their eligibility and
the terms of the plan,” although “the County was not required to provide written documentation that it
informed its employees of MainePERS eligibility.” The Board also found that the County had failed to
inform the three individual employees of their eligibility to participate in MPERS when they were hired,
although they were informed at later dates, and concluded that the County was responsible for paying past
employer contributions and interest on both member and employer contributions for those employees for
the period between their dates of hire and when those employees were informed, or was presumably
informed in the case of one employee, of their eligibility.
6

           [¶10] Pursuant to M.R. Civ. P. 80C, the County petitioned for review of the

Board’s decision by the Superior Court. The case was accepted for transfer to the

Business and Consumer Docket, and the court affirmed the Board’s decision,

entering a judgment in favor of MPERS. The County filed this timely appeal

pursuant to 5 M.R.S. § 11008 (2013) and M.R. App. P. 2.

           [¶11] Kennebec County argues on appeal that MPERS and the Board lack

statutory authority, pursuant to 5 M.R.S.A. §§ 18252 and 18252-A,6 to decide

disputes relating to information about opportunities to join the retirement system

that was or was not given to County employees when they were hired. The County

asserts that section 18252, interpreted in conjunction with section 18252-A, leaves

the final administrative decision-making with respect to these matters to the PLD

and suggested at oral argument that the remedy, if any, for local employees is a

complaint or grievance with the County. The County also argues that 5 M.R.S.

§ 17103(6) (2013), authorizing the Board to make final administrative decisions

over certain matters, only grants review authority over decisions affecting MPERS

“members,” while the matters here involve employees who were not members at

the time and did not become members until, in some cases, more than twenty years

after the alleged inadequate notice occurred.




    6
        The County does not specify the applicable dates of the statutes to which it cites.
                                                                                                       7

                                    II. LEGAL ANALYSIS

A.       Standards of Review

         [¶12] When the Superior Court acts in its appellate capacity pursuant to

M.R. Civ. P. 80C, we review the decision of MPERS’s Board of Trustees directly

“for legal errors, an unsustainable exercise of discretion, or unsupported findings

of fact.” McClintock v. Me. Pub. Emps. Ret. Sys., 2010 ME 65, ¶ 8, 1 A.3d 431.

“The party seeking to overturn the Board’s decision bears the burden of persuasion

on appeal.” Id.

B.       The Relevant Statutes

         [¶13] The issue before us is a matter of statutory interpretation. Four

statutory provisions are at issue: 5 M.R.S. § 18252 (2008) and (2009),7 as in effect

in 2008 and 2009 when MPERS and the Board initiated their respective

decision-making processes in this matter; 5 M.R.S. § 18252-A(2)(C), (D) (2013);

5 M.R.S. § 17103 (2013); and 5 M.R.S. § 17001(14)(A), (C), (20) (2013).8 We

address each in turn.


     7
      Title 5 M.R.S. § 18252 (2008), reporting amendments made by both P.L. 2007, ch. 490, § 1
(emergency legislation effective March 7, 2008), and P.L. 2007, ch. 491, § 191 (effective June 30, 2008),
was repealed and replaced by P.L. 2009, ch. 415, § A-5 (emergency legislation effective June 17, 2009)
(codified at 5 M.R.S. § 18252 (2009)). Section 18252 was subsequently amended by P.L. 2009, ch. 474,
§ 31 (effective July 12, 2010), and P.L. 2011, ch. 449, §14 (effective Sept. 28, 2011). The changes
effected by these amendments and enactments are not material to our limited analysis of this section.
     8
     Title 5 M.R.S. §§ 17001(14)(A), (C), (20), 17103, and 18252-A(2)(C), (D) have not been amended
in any way material to our analysis since 2008, and we therefore cite to the 2013 volume of the Maine
Revised Statutes. See, e.g., P.L. 2009, ch. 322, §§ 2-4 (effective Sept. 12, 2009) (amending 5 M.R.S.
§ 17103 (2008)).
8

        [¶14] Title 5 M.R.S. § 18252 addressed enrollment and membership in

MPERS by employees of PLDs that, like Kennebec County, offer Social Security

coverage to their employees.9 Title 5 M.R.S. § 18252 did not include any specific

authorization for the Board or MPERS to review and decide the employee notice

and enrollment matters at issue in this case. We must therefore look to other

sections of the retirement laws to discern the Legislature’s intent and to determine

if MPERS’s view that it and its Board have authority to administratively decide

employee enrollment election disputes is reasonable. See Goodrich v. Me. Pub.

Emps. Ret. Sys., 2012 ME 95, ¶ 6, 48 A.3d 212. MPERS suggests that its authority

to review the County action may be imported from 5 M.R.S. § 18252-A(2)(C), (D).

        [¶15] Title 5 M.R.S. § 18252-A(2)(C) and (D) addresses membership for

employees of PLDs that, unlike Kennebec County, do not offer a Social Security

coverage option but do offer a qualified defined contribution or deferred

compensation retirement plan pursuant to 5 M.R.S § 18252-B (2013). In contrast

to section 18252, which is silent on the matter, paragraphs (C) and, more

particularly, (D) of section 18252-A(2) explicitly authorize MPERS and its Board

to make final administrative decisions related to employee plan participation and

membership, in matters in which authority is not otherwise explicitly delegated to

    9
      The parties agree that section 18252 applies to the County. As noted above, the County transferred
into the Consolidated Retirement Plan for PLDs in 1995. Statutory provisions relevant to local districts
participating in the consolidated plan are found at 5 M.R.S. §§ 18801-18806 (2013), but the parties do not
contend that those provisions affect the applicability of 5 M.R.S. § 18252 to the County.
                                                                                  9

the PLD, when there is no Social Security participation option. Paragraphs (C) and

(D) state:

      C. The participating local district employer is responsible for
      providing procedures by which employees make elections under this
      section, for maintaining all records relevant to the election process
      and each employee’s elections, for informing the retirement system as
      to employee elections in accordance with procedures established by
      the executive director and for making all administrative decisions,
      including the final administrative decision, in any dispute related to an
      employee’s elections or administrative decision, in any dispute related
      to an employee’s elections or to any issue as to the plan provided by
      the employer under section 18252-B. Neither the retirement system
      nor the system’s board of trustees has responsibility or jurisdiction to
      make the final administrative decision with respect to any of these
      matters. The retirement system is responsible only to ensure that its
      records accurately reflect the information provided by the employer,
      the employer’s decision as to any of these matters, and the legally
      cognizable outcome of any dispute related to any of these matters.

      D. With respect to matters related to participation and membership
      other than those specified in paragraph C, the retirement system and
      the board retain responsibility and authority according to applicable
      retirement system law and rules as to the participating local districts
      and their employees to whom this section applies, including the
      authority to make final administrative decisions.

      [¶16] Pursuant to section 18252-A(2)(C), which does not apply to Kennebec

County, the PLD is explicitly granted—and MPERS and its board are explicitly

denied—responsibility for making “all administrative decisions, including the final

administrative decision, in any dispute related to an employee’s elections or

administrative decision . . . .”   MPERS and the Board are, however, granted

authority to make final administrative decisions “[w]ith respect to matters related
10

to participation and membership other than those specified in paragraph C” for

PLDs that do not offer Social Security coverage to their employees. 5 M.R.S.

§ 18252-A(2)(D). Section 18252-A thus establishes a comprehensive plan for

allocating authority among the PLD, MPERS, and the Board in a variety of

situations.10

          [¶17] The third statutory provision at issue, 5 M.R.S. § 17103, establishes

the general parameters of the Board’s responsibilities and authority, granting broad

authority to oversee numerous aspects of the operation of the retirement system.

5 M.R.S. § 17103(1), (2), (4), (5), (7); see Me. Sch. Admin. Dist. No. 27 v.

Me. Pub. Emps. Ret. Sys., 2009 ME 108, ¶ 26, 983 A.2d 391 (stating that “given

the overall administrative regulatory scheme [for governing the retirement system],

it is reasonable to infer that a power to enforce is implicit within the overall

regulatory scheme”).

          [¶18] General administrative review authority is provided by 5 M.R.S.

§ 17103(6), which states, in relevant part, “The board shall in all cases make the

final and determining administrative decision in all matters affecting the rights,

credits and privileges of all members of all programs of the retirement system

whether in participating local districts or in the state service.”                    5 M.R.S.

§ 17103(6); see also 5 M.R.S. § 17103(7)(B) (referencing the Board’s authority to

     10
     See generally 5 M.R.S. § 18252-A(3)(B) (2013) (stating that section 18252-A does not apply to
employees of PLDs whose membership in MPERS is optional pursuant to 5 M.R.S. § 18252 (2013)).
                                                                                     11

determine “the rights, credits or privileges of an individual member or group of

members” in an adjudicatory proceeding pursuant to the Maine Administrative

Procedure Act). Thus, section 17103(6) establishes the Board’s authority to decide

matters relating to the rights, credits, and privileges of “members.”

       [¶19] A “member” is defined as “any person included in the membership of

a retirement program of the retirement system, as provided in chapter 423,

subchapter 2 [relating to state employees and teachers], or chapter 425,

subchapter 2 [relating to PLDs].”       5 M.R.S. § 17001(20).           In contrast, an

“employee” is defined as “ a state employee, including . . . a participating local

district employee,” without reference to MPERS membership.                    5 M.R.S.

§ 17001(14)(A), (C).     The fact that the terms “member” and “employee” are

separately defined indicates that they are not intended to be used interchangeably

in the statute.

C.     Applying the Statutes to this Case

       [¶20] We review the interpretation of a statute de novo, looking first to the

statute’s plain language to give effect to the Legislature’s intent, considering the

language in the context of the whole statutory scheme “to avoid absurd, illogical,

or inconsistent results.” Eagle Rental, Inc. v. State Tax Assessor, 2013 ME 48,

¶ 11, 65 A.3d 1278; Goodrich, 2012 ME 95, ¶ 6, 48 A.3d 212. By including

specific and comprehensive administrative review provisions in section
12

18252-A(2)(C) and (D), the Legislature presumably identified a need for such

provisions with respect to PLDs that do not offer Social Security to their

employees and do offer qualified defined contribution or deferred compensation

plans. If these provisions, addressed primarily to protections for “employees,”

were held to be duplicated by the general review provisions regarding “members”

in section 17103(6), portions of section 18252-A(2)(C) and (D) would in effect be

rendered statutory surplusage. Such interpretations, as with viewing the terms

“member” and “employee” as interchangeable, are to be avoided.            See Allied

Res., Inc. v. Dep’t of Pub. Safety, 2010 ME 64, ¶ 15, 999 A.2d 940 (“All words in a

statute are to be given meaning, and none are to be treated as surplusage if they can

be reasonably construed.”).

      [¶21]    Thus, we cannot construe the review provisions in section

18252-A(2)(C) and (D) to be imported into section 18252. See Aydelott v. City of

Portland, 2010 ME 25, ¶ 12, 990 A.2d 1024 (observing that, when one section of a

law or act contains particular language that another does not, the contrast suggests

an intentional distinction by the Legislature).    Given section 18252’s lack of

specific review provisions, we must infer that the Legislature made a choice that

section 17103(6), the statutory scheme’s general provision concerning authority

and jurisdiction, applies to PLDs, like the County, that offer Social Security

coverage. See McPhee v. Me. State Ret. Sys., 2009 ME 100, ¶ 23, 980 A.2d 1257
                                                                                                      13

(“Statutory construction is a holistic process: we construe the whole statutory

scheme of which the section at issue forms a part so that a harmonious result,

presumably the intent of the Legislature, may be achieved.”).

        [¶22]     Section 17103(6) expressly confers upon the Board authority to

decide matters relating to the rights, credits, and privileges of “members,” and not

“employees.”11

        [¶23]    The three employees at issue in this appeal dispute whether the

County offered them enrollment in MPERS or provided adequate information to

them about their eligibility for participation in the retirement system when they

were hired.         Enrollment in MPERS was, for these employees, optional.

See 5 M.R.S.A. §§ 18251(1), 18252 (1989 & Supp. 2000); 5 M.R.S.A.

§ 1092(5-A) (Supp. 1986).12 Therefore, even if we were to take an expansive view

of what it would mean to be a “member,” those employees cannot be deemed to

have been “included in the membership of a retirement program of the retirement

system,” unless and until they actually enrolled. 5 M.R.S. § 17001(20); cf., e.g.,

Me. Sch. Admin. Dist. No. 27, 2009 ME 108, ¶ 2, 983 A.2d 391.



   11
      Title 5 M.R.S. § 17001 (2013) states that the terms in that section “have the following meanings,”
“unless the context otherwise indicates.” We conclude that the context of section 17103(6) does not
otherwise indicate that the word “member” has any meaning other than as that term is defined in 5 M.R.S.
§ 17001(20).
   12
     Title 5 M.R.S.A. § 1092(5-A) was repealed by P.L. 1985, ch. 801, § 2 (effective Jan. 1, 1987). Title
5 M.R.S.A. §§ 18251, 18252 was enacted by P.L. 1985, ch. 801, § 5 (effective Jan. 1, 1987).
14

          [¶24] The dispute concerning the employees’ enrollment elections at the

time of their hire, or at any time prior to being informed of their eligibility to enroll

in MPERS, thus arose when these individuals were PLD employees, but were not

MPERS members. 13 Accordingly, we conclude that the Board did not have

authority to make final administrative decisions with respect to the enrollment

election matters arising as much as twenty-two years earlier, when the PLD

employees were not “members” of MPERS. We likewise do not find support for

MPERS’s authority in this matter. See, e.g., 5 M.R.S. § 17105 (2013) (setting

forth the duties of the executive director); McPhee, 2009 ME 100, ¶¶ 20-21,

980 A.2d 1257 (noting the limits of the executive director’s authority in deciding

matters pursuant to the statute relating to a qualified domestic relations order and

the resulting limitation on the Board’s review of that decision).14



     13
       Contrary to MPERS’s implied contention, the fact that the three employees at issue in this appeal
ultimately enrolled in MPERS in 2010, becoming “members” then, does not confer authority on the
Board to decide the enrollment matters at issue here when that authority did not exist at the time giving
rise to the disputes.
     14
      We express no opinion on what impact, if any, the provisions of 5 M.R.S. § 17054-A (2013) might
have on our decision if that section were applicable, because section 17054-A, enacted by P.L. 2009,
ch. 474, § 12 (effective July 12, 2010), was effective after MPERS and the Board assumed jurisdiction
over the issues giving rise to this appeal, albeit before the Board issued its final administrative decision.
Section 17054-A states:

          Employers are responsible for providing procedures by which employees for whom
          membership in the retirement system is optional make a membership election, for
          maintaining all records relevant to the election process and an individual employee’s
          election and for informing the retirement system as to employee elections in accordance
          with procedures established by the executive director. . . . With respect to matters related
          to participation and membership in the retirement system other than those specified in this
          section, the retirement system and the board retain responsibility and authority according
                                                                                                          15

        [¶25]     To hold otherwise could invite MPERS to adjudicate claims to

membership entitlement by employees who joined PLDs twenty or thirty years ago

and who never became members of MPERS or who became members of MPERS

only at the end of their careers and then invoked a lack of notice claim to seek to

win benefits for the entire term of their careers. The Legislature could not have

intended such a result, inviting inconsistent and speculative decision-making,

reliant on faded memories and imprecise or discarded records of events twenty or

thirty years in the past.15

        [¶26]     Employees of PLDs that offer Social Security coverage are not

without a remedy, however. Employees alleging that their PLD has failed to

inform them of their eligibility to participate in MPERS may pursue administrative

or collective bargaining grievance procedures and initiate independent action


        to applicable retirement system law and rules as to the employer and the employees to
        whom this Part applies, including the authority to make final administrative decisions.

         We do not apply this statute to the case at hand. See 1 M.R.S. § 302 (2013) (“[P]roceedings
pending at the time of the passage, amendment or repeal of an Act . . . are not affected thereby.”); Morrill
v. Me. Tpk. Auth., 2009 ME 116, ¶ 5, 983 A.2d 1065 (“[A]ll statutes will be considered to have a
prospective operation only, unless the legislative intent to the contrary is clearly expressed or necessarily
implied from the language used.”); cf. Me. Sch. Admin. Dist. No. 27 v. Me. Pub. Emps. Ret. Sys.,
2009 ME 108, ¶ 25, 983 A.2d 391 (“When a statute does not alter existing rights or obligations, but
merely clarifies what those existing rights and obligations have always been, the statute is not retroactive
in its operation.” (alterations omitted)).
   15
        Title 5 M.R.S. § 17451 (2013) does not alter our conclusion. Section 17451 provides that “[a]ny
person aggrieved by a decision or ruling of the executive director may appeal the decision or ruling to the
board.” We do not view section 17451 as conferring subject matter jurisdiction to the Board in this case;
it is the procedural mechanism authorizing the Board to consider appeals from decisions of the executive
director that were properly before the executive director.
16

directly against the employer, subject to any statutes of limitation or rules of repose

that may be applicable.

      The entry is:

                      Judgment vacated. Remanded to the Business and
                      Consumer Docket for entry of a judgment vacating
                      the Board’s decision and remanding the matter to
                      the Board with instructions to the Board to dismiss
                      the matter for want of jurisdiction.




SILVER, J., dissenting.

      [¶27] I respectfully disagree with the Court’s interpretation of 5 M.R.S.

§ 17103(6) (2013). The plain language of the statute grants the Board the authority

to make a final administrative decision in all matters affecting the rights, credits,

and privileges of all members of the retirement system. I discern no statutory basis

for limiting the Board’s authority based on when the members at issue joined the

System.    Because I conclude that the Board properly exercised jurisdiction,

I would reach the merits of the Board’s decision, and would affirm.

A.    The Board’s Authority

      [¶28] As the Court notes, 5 M.R.S. § 18252 (2013), which applies to

Kennebec County because the County offers employees a choice between Social

Security and MPERS membership, offers no guidance concerning the extent of the

Board’s authority to make final decisions in matters involving enrollment and
                                                                                   17

election procedures. Thus, we must look to section 17103, which outlines the

Board’s authority and responsibilities. This section provides that “[t]he board shall

in all cases make the final and determining administrative decision in all matters

affecting the rights, credits and privileges of all members of all programs of the

retirement system[.]” 5 M.R.S. § 17103(6) (emphasis added).

      [¶29] The Court dismisses the fact that all three employees involved in this

case are current MPERS members, pointing out that they were not members at the

time of the incidents that gave rise to these proceedings. The plain language of

section 17103 requires no such inquiry into when the members joined the System.

On the contrary, it unambiguously provides that the Board has the authority to hear

all matters concerning members’ rights, credits, and privileges.

      [¶30] Administrative bodies are statutory in nature; they have only “such

powers as those expressly conferred on them by the Legislature, or such as arise

therefrom by necessary implication to allow carrying out the powers accorded to

them.” Hopkinson v. Town of China, 615 A.2d 1166, 1167 (Me. 1992). We look

to the plain meaning of a statute’s language to give effect to the legislative intent,

and if the meaning of the statute is clear, we need not look beyond the words

themselves. Wister v. Town of Mount Desert, 2009 ME 66, ¶ 17, 974 A.2d 903.

The Court, however, raises concerns about the Board’s ability to effectively

adjudicate cases like this one, suggesting that the Legislature could not have
18

intended to grant the Board jurisdiction to hear cases involving employees who

were hired decades before becoming members because such cases are extremely

difficult to decide due to the loss of evidence over time. Court’s Opinion ¶ 25.

Although this is certainly a fair observation, it is well beyond the scope of the plain

language of section 17103 and does not provide a legitimate basis for limiting the

scope of the board’s statutory authority.

      [¶31] Such policy concerns also do not render a plain reading of the statute

absurd or illogical. See Cent. Me. Power Co. v. Devereux Marine, Inc., 2013 ME

37, ¶ 8, 68 A.3d 1262 (“[W]e construe the statutory language to avoid absurd,

illogical, or inconsistent results.”). “Overall, the Board has long been charged with

[t]he general administration and responsibility for the proper operation of the

retirement system and for making this chapter [governing the retirement system]

effective.” Me. Sch. Admin. Dist. No. 27 v. Me. Pub. Emps. Ret. Sys., 2009 ME

108, ¶ 26, 983 A.2d 391 (quotation marks omitted) (emphasis and alterations in

original).

      [¶32] Section 17103 provides broad authority for the Board to make final

administrative decisions about members’ rights and credits. Determining whether

an employer must make back contributions to MPERS for several current members

falls squarely within the authority granted by the statute. See id. ¶ 27 (“The

assessment of late fees for delinquent payments, especially assessment for interest,
                                                                                  19

affects the rights of the employee members.”) This reading of section 17103 does

not conflict with any other provision, and it is consistent with the statutory scheme

providing “broad authority and discretion to the Board in managing [MPERS].”

Id. There is no reason to conclude that the plain language of the statute does not

reflect the Legislature’s intent. Thus, the Board had jurisdiction to decide whether

Kennebec County was required to make back contributions with interest on behalf

of current members as a result of its earlier failure to provide adequate election

procedures.

B.    Whether Employers Must Inform Employees About MPERS

      [¶33] When the administration of a statute has been entrusted to an agency

by the Legislature, we defer to the agency’s interpretation and application of the

statute. City of Augusta v. Me. Labor Relations Bd., 2013 ME 63, ¶ 14, 70 A.3d

268. When the statute is “silent or ambiguous on a particular point, we will review

whether the agency’s interpretation of the statute is reasonable and uphold its

interpretation unless the statute plainly compels a contrary result.” Goodrich v.

Me. Pub. Emps. Ret. Sys., 2012 ME 95, ¶ 6, 48 A.3d 212. “[W]e do not attempt to

second-guess the agency on matters falling within its realm of expertise.”

Imagineering, Inc. v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991).

      [¶34] The Board interpreted section 18252 to require employers like the

County to provide new employees with information about their eligibility for
20

membership in MPERS and the terms of the program. The Board reasoned that the

statutory language providing that eligible members may elect to join the program

“implies a right to participate in the plan,” which in turn “obligates the County to

adequately apprise its employees of the existence of [MPERS], their eligibility and

the terms of the plan.”

      [¶35] The Board’s interpretation of section 18252 is reasonable, and the

statutory language does not compel a contrary result. Although the County argues

that the Board’s interpretation imposes too burdensome a requirement on

employers who also offer Social Security coverage to their employees, the

argument that the Board impermissibly applied the more stringent requirements of

5 M.R.S. § 18252-A (2013) is unpersuasive. Section 18252-A, which applies only

to PLDs that do not provide Social Security coverage and is therefore inapplicable

to the County, enumerates specific steps employers are required to take, including

providing employees with information, implementing procedures for making

elections and informing MPERS of employees’ elections, and making

administrative decisions concerning these matters. 5 M.R.S. § 18252-A(2)(B), (C)

(2013).

      [¶36] Contrary to Kennebec County’s arguments, this does not necessarily

mean that employers covered by section 18252 have no obligation to inform

employees about their eligibility to participate in MPERS. The County concedes
                                                                                                  21

that section 18252, by implication, imposes some duty to provide information

about the availability of membership in MPERS.                           Because the Board’s

interpretation of this provision of the State Retirement System statute is

reasonable, we must defer to it.

C.        The Board’s Factual Findings

          [¶37]   This Court will affirm the Board’s factual findings if they are

supported by substantial evidence in the record, even if the record contains

inconsistent or contrary evidence. Friends of Lincoln Lakes v. Bd. of Envtl. Prot.,

2010 ME 18, ¶ 13, 989 A.2d 1128.

          [¶38] Kennebec County contends that the Board erred in finding that the

three employees were not informed of their eligibility to participate in MPERS

when they were hired.16 However, each of the employees testified that the County

had not offered them enrollment in MPERS when they were hired, and that the

benefits were never explained to them. This evidence, despite being contradicted

by other evidence in the record, is sufficient to support the Board’s findings.

D.        Whether the Board’s Interpretation Retroactively Imposes a New Rule

          [¶39] Administrative clarification of a PLD’s existing rights and obligations

is permissible; it is not retroactive in effect. Me. Sch. Admin. Dist. 27, 2009 ME


     16
      Much of Kennebec County’s argument on this issue, however, focuses on the assertion that the
standard the Board applied was too high, and that the evidence the County presented was sufficient to
meet the lower standard the County argued was appropriate.
22

108, ¶ 28, 983 A.2d 391. Interpreting a statute’s plain meaning does not constitute

pronouncing a new rule. See id. ¶ 25. Section 18252 requires that employees be

given a meaningful choice whether to elect to join MPERS. That the Superior

Court observed that “an employer subject to section 18252 fails to document at its

peril” does not indicate that the Board has announced a new rule requiring

employers to keep detailed records of election procedures.         Rather, it is a

commonsense observation that, absent such documentation, it may be difficult for

an employer to prove that it has complied with the modest notice requirements of

section 18252.    The County’s argument that the Board has impermissibly

announced a new rule that is not promulgated by statute or regulation is

unpersuasive.

      [¶40] For these reasons, I would affirm the judgment of the Superior Court

on the merits.

_______________________________



On the briefs:

      Warren C. Shay, Esq., Perkins, Townsend, Shay & Talbot, P.A.,
      Skowhegan, for appellant Kennebec County

      Janet T. Mills, Attorney General, and James M. Bowie, Asst. Atty. Gen.,
      Office of Attorney General, Augusta, for appellee Maine Public Employees
      Retirement System
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At oral argument:

        Warren C. Shay, Esq., for appellant Kennebec County

        James M. Bowie, Asst. Atty. Gen., for appellee Maine Public Employees
        Retirement System



Business and Consumer Court docket number AP-2012-11
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