Retirement Board of Stoneham v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-189-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12098   Retirement Board OF STONEHAM  vs.  Contributory Retirement Appeal Board & another.[1]       Middlesex.     October 5, 2016. – December 22, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Retirement.  Municipal Corporations, Retirement board.  Public Employment, Retirement.  Contributory Retirement Appeal Board.       Civil action commenced in the Superior Court Department on February 6, 2014.   The case was heard by Robert L. Ullmann, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Douglas S. Martland, Assistant Attorney General, for Contributory Retirement Appeal Board. Thomas F. Gibson for Christine DeFelice. Michael Sacco for the plaintiff.     LOWY, J.  This case requires us to answer two questions:  (1) whether a municipal retirement board possesses absolute discretion to terminate a part-time employee’s membership in a retirement system to which that board has granted the employee membership; and (2) even if such a board does not have the power to terminate a part-time employee’s membership, whether a “separation from [an employee’s] service” under G. L. c. 32, § 3 (1) (a) (i), occurs when a part-time employee working two jobs for the same municipal employer ceases to work only one of those jobs.  We answer both questions in the negative and reverse the judgment of the Superior Court. Background.  Christine DeFelice began working on a part-time basis for the Stoneham school department (department) in November, 2000.  In April, 2001, she took on a second part-time job with the department to fill a temporary vacancy, increasing her weekly workload from nineteen and one-half hours per week to over thirty hours per week for the ensuing nine weeks.  At the end of the nine-week period, DeFelice continued to work for the department on a part-time basis until at least June, 2009, only occasionally working more than nineteen and one-half hours per week.[2] In 2009, DeFelice sought retroactive membership in the Stoneham retirement system as an employee of the department, based on the nine-week period in 2001 during which she worked over thirty hours per week.  Under the membership eligibility criteria for part-time employees established by the Stoneham retirement board (board) that were in effect during 2001, Stoneham employees were eligible for membership in the retirement system if they were […]

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