Commissioner of Administration and Finance v. Commonwealth Employment Relations Board, et al. (Lawyers Weekly No. 10-076-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12208 COMMISSIONER OF ADMINISTRATION AND FINANCE vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.[1] Suffolk. January 5, 2017. – May 12, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Commonwealth Employment Relations Board. Labor, Unfair labor practice, Duty to bargain. Commonwealth, Financial matters, Collective bargaining. Appeal from a decision of the Division of Labor Relations. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert L. Quinan, Jr., Assistant Attorney General, for the plaintiff. Jane Gabriel for the defendant. Alan H. Shapiro (John M. Becker also present) for the intervener. Mathew D. Jones, for Massachusetts Teachers Association, amicus curiae, submitted a brief. LOWY, J. In June, 2010, near the height of the global economic downturn that became known as the Great Recession, the Secretary of the Executive Office of Administration and Finance (Secretary) submitted to the Legislature a request for an appropriation to fund collective bargaining agreements between the Commonwealth and two public employee unions reached more than thirteen months earlier. In the letter containing the request, the Secretary informed the Legislature that several similar requests for salary increases had been rejected by the Legislature; that attempts to renegotiate the agreements with the unions had failed; and that approval of the request would require renegotiating several other collective bargaining agreements that the Legislature had already approved. The unions both filed a charge of prohibited practice with the Department of Labor Relations (department), arguing, in essence, that the letter was a violation of the Commonwealth’s purported duty to support an appropriation’s request pursuant to G. L. c. 150E, § 7 (b), and also that the letter constituted a failure to bargain in good faith, in violation of G. L. c. 150E, § 10 (a) (5). In January, 2014, a hearing officer with the department agreed with the unions and found that the Commonwealth had violated its § 7 (b) duty and had committed a prohibited practice under § 10 (a) (5) by failing to bargain in good faith. The Commonwealth Employment Relations Board (board)[2] affirmed, the Commonwealth appealed from the decision, and we transferred the case to this court on our own motion. We reverse the board’s decision and conclude that the Secretary’s inclusion of information about the anticipated fiscal effects of a legislative decision to fund […]
Categories: News Tags: 1007617, Administration, Board, Commissioner, Commonwealth, employment, Finance, Lawyers, Relations, Weekly
Aiello v. Planning Board of Braintree, et al. (Lawyers Weekly No. 11-044-17)
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 15-P-1321 Appeals Court ROGER AIELLO, trustee,[1] vs. PLANNING BOARD OF BRAINTREE & others.[2] No. 15-P-1321. Suffolk. October 20, 2016. – April 14, 2017. Present: Meade, Milkey, & Kinder, JJ. Practice, Civil, Zoning appeal, Standing. Zoning, Appeal, Person aggrieved, By-law. Civil action commenced in the Land Court Department on October 14, 2009. The case was heard by Karyn F. Scheier, J. Brian K. Bowen for the plaintiff. Jason W. Morgan for McCourt Construction & another. Carolyn M. Murray (Judy A. Levenson also present) for planning board of Braintree. MEADE, J. In this matter we examine the issue of standing to appeal from a zoning decision in the context of an abutter’s appeal of decision of a local planning board (board) to allow modification of a 1994 special permit to remove conditions that benefited the residential abutter in terms of visual and auditory impacts. We conclude that it was error for the judge to find that the plaintiff lacked standing to appeal from the board’s decision. We address only the merits argued in the plaintiff’s brief and conclude that the board’s decision granting a modified special permit removing the conditions must be reconsidered by the board. Background. a. Aiello’s property. The plaintiff, Roger Aiello, owns fifteen acres of residentially zoned property in Braintree, located directly north of the commercially zoned locus. Aiello’s property consists of a number of parcels; in addition to single and multifamily residential units, it contains a prior nonconforming catering business and a “semi-agricultural use,” a goat pasture. One of Aiello’s single-family residences is located within eleven feet of the locus’s northern boundary. Aiello’s property is at a higher elevation than the locus. The judge found that the Aiello property has a clear view of the structure on the locus and portions of the parking area. The farther away one stands from the boundary line, the more visible the locus becomes. The locus. The locus, now owned by RMT Braintree, LLC, and occupied by McCourt Construction,[3] contains approximately nine acres and is located in both the commercial and watershed protection districts.[4] The locus is long (approximately 2,000 feet), running from east to west, and narrow (approximately 200 feet). It currently is improved with a 675-foot-long commercial structure (sometimes referred to as building). Development of the rear, or […]
State Board of Retirement v. Finneran, et al. (Lawyers Weekly No. 10-051-17)
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-12069 STATE BOARD OF RETIREMENT vs. THOMAS M. FINNERAN & others.[1] Suffolk. December 8, 2016. – April 5, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Budd, JJ.[2] Retirement. State Board of Retirement. Public Employment, Forfeiture of retirement benefits. Constitutional Law, Excessive fines clause. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 4, 2015. The case was reported by Lenk, J. David R. Marks, Assistant Attorney General, for the plaintiff. Nicholas Poser (Thomas R. Kiley also present) for Thomas M. Finneran. LENK, J. Former Speaker of the House Thomas Finneran pleaded guilty in the United States District Court in 2007 to one count of obstruction of justice in violation of 18 U.S.C. § 1503. The obstruction of justice conviction related to false testimony that he had provided in relation to a Federal court action challenging the 2001 redistricting act, St. 2001, c. 125 (redistricting act). Finneran had played a significant role in the development of the redistricting act from the point of its inception but denied under oath that he had played any part in its development. Indeed, he testified that he had not even seen the plan before it was released to the full House of Representatives. After his conviction, Finneran was informed by the State Retirement Board (board) that his crime constitutes a “violation of the laws applicable to his office or position,” pursuant to G. L. c. 32, § 15 (4), requiring the forfeiture of his pension. Finneran appealed from the board’s determination to the Boston Municipal Court. A Boston Municipal Court judge reversed, discerning no direct link between Finneran’s “conviction and his position as a Member and/or Speaker of the House.” We reach the opposite conclusion, and accordingly reverse the decision of the Boston Municipal Court judge and affirm the conclusion of the board. Background.[3] Finneran was first elected to the House of Representatives in 1978, as the representative of the Twelfth Suffolk District. Thereafter, he was reelected every two years, and concurrently served as Speaker of the House from 1996 until his resignation in 2004. In 2001, Finneran played a key role in shepherding the Commonwealth through the redistricting process pursuant to the 2000 decennial United States census. The Legislature bore the […]
Shrine of Our Lady of La Salette Inc. v. Board of Assessors of Attleboro (Lawyers Weekly No. 10-049-17)
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-12021 SHRINE OF OUR LADY OF LA SALETTE INC. vs. BOARD OF ASSESSORS OF ATTLEBORO. Suffolk. December 5, 2016. – March 22, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Taxation, Real estate tax: abatement, Real estate tax: exemption, Real estate tax: classification of property. Real Property, Tax. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Diane C. Tillotson (Ryan P. McManus also present) for the taxpayer. Michael R. Siddall (James M. Hannifan also present) for board of assessors of Attleboro. Heidi A. Nadel, for Massachusetts Council of Churches & others, amici curiae, submitted a brief. Felicia H. Ellsworth, Eric L. Hawkins, & William R. O’Reilly, Jr., for Roman Catholic Archbishop of Boston & others, amici curiae, submitted a brief. GANTS, C.J. This is an appeal from a decision of the Appellate Tax Board (board) concerning property in Attleboro owned by the taxpayer, Shrine of Our Lady of La Salette Inc. (Shrine). The Shrine sought a tax abatement from the board, claiming that certain portions of its property were exempt from taxation under G. L. c. 59, § 5, Eleventh (Clause Eleventh), the exemption for “houses of religious worship.” The crux of the appeal is the scope of this exemption. For the reasons set forth below, we conclude that property is exempt from taxation under Clause Eleventh where the dominant purpose of the questioned portion of property is religious worship or instruction, or purposes connected with it. Applying this principle, we conclude that the board erred when it found that the Shrine’s “welcome center” and maintenance building were not exempt under Clause Eleventh. We affirm its denial of an abatement for the former convent that the Shrine leased to a nonprofit organization for use as a safe house for battered women, and for the wildlife sanctuary that was exclusively managed by the Massachusetts Audubon Society in accordance with a conservation easement. The safe house and wildlife sanctuary might have been exempt from real estate taxation under G. L. c. 59, § 5, Third (Clause Third), as the property of a benevolent or charitable organization devoted to charitable use, had the Shrine satisfied the filing requirements for such an exemption, but they were not exempt under Clause Eleventh.[1] Background. […]
Koines, et al. v. Zoning Board of Appeals of Cohasset, et al. (Lawyers Weekly No. 11-014-17)
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 16-P-678 Appeals Court ALEXANDER C. KOINES & another[1] vs. ZONING BOARD OF APPEALS OF COHASSET & others.[2] No. 16-P-678. February 21, 2017. Zoning, Nonconforming use or structure, Lot size, Exemption, Judicial review. Real Property, Merger. The plaintiffs appeal from a judgment of the Land Court that affirmed a decision of the defendant zoning board of appeals of Cohasset (board) based on a conclusion that the board correctly interpreted the Cohasset zoning by-law to afford grandfather protection to a lot owned by the defendants John and Martha Shaw. We affirm. At issue in the case is section 8.3.2(c) of the by-law, the language of which is set out in the margin.[3] The Shaws’ lot, containing approximately 21,850 square feet, is located in an R-C district in which the minimum lot size is 60,000 square feet. The current minimum lot size results from an increase enacted by amendment to the by-law in 1985, at a time when the Shaws’ lot was held in common ownership with several parcels of adjacent land. The lot accordingly plainly meets the literal linguistic requirements of the second portion of section 8.3.2(c) as applicable to lots in the R-C district. The plaintiffs nonetheless contend that the board erroneously interpreted the by-law to afford grandfather protection to the lot by virtue of the common law doctrine of merger. Under that doctrine, a lot held in separate ownership at the time an increase in area renders it nonconforming and thereby entitled to grandfather protection under the fourth paragraph of G. L. c. 40A, § 6, loses grandfather protection if it thereafter comes into common ownership with adjoining land. See Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 243 (2001). As the plaintiffs observe, this court reached its conclusion in Preston despite the fact that the lot at issue met the literal linguistic requirements set forth in the statute, resting its conclusion on the fact that the Legislature, though presumptively aware of the preexisting and well-established merger doctrine at the time it enacted § 6, did not evince a clear intent to alter the common law. See id. at 240, 243. The present case stands differently since we are presented with an enactment of the Cohasset town meeting, construed by the local zoning board of appeals […]
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 […]
Categories: News Tags: 1018916, Appeal, Board, Contributory, Lawyers, Retirement, Stoneham, Weekly
Doe, Sex Offender Registry Board No. 376575 v. Sex Offender Registry Board (Lawyers Weekly No. 11-179-16)
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 14-P-926 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 376575 vs. SEX OFFENDER REGISTRY BOARD. No. 14-P-926. Suffolk. October 20, 2016. – December 22, 2016. Present: Hanlon, Sullivan, & Blake, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Jurisdiction, Sex offender. Evidence, Sex offender. Obscenity, Child pornography. Civil action commenced in the Superior Court Department on December 18, 2012. The case was heard by Paul D. Wilson, J., on a motion for judgment on the pleadings; a motion for reconsideration was considered by him; and a motion for postjudgment relief, filed on April 30, 2015, was heard by him. Christopher M. Bova for the defendant. Jay G. Hook for the plaintiff. BLAKE, J. While he was in the United States Army, John Doe No. 376575 (Doe or plaintiff) was convicted by general court martial of possession of child pornography in violation of art. 134, 10 U.S.C. § 934 (2012), the “general” provision of the Uniform Code of Military Justice (code). Following his release from military confinement, the sex offender registry board (board) classified Doe as a level two sex offender. Doe sought review in the Superior Court, where the judge concluded that the board lacked jurisdiction over Doe because his conviction under art. 134 was not a “like violation” sex offense requiring registration. See G. L. c. 6, §§ 178C-178P (sex offender registration statute). The board now appeals. We conclude that, under the circumstances here, where Doe had notice of and subsequently pleaded guilty to possession of child pornography under 18 U.S.C. § 2252 (2012), the art. 134 conviction was a “like violation” such that it constitutes a sex offense under G. L. c. 6, § 178C. We vacate the judgment.[1] Background. We summarize the facts found by the hearing examiner, supplemented by undisputed facts from the record. After a soldier stationed with the plaintiff observed what he believed to be child pornography on the plaintiff’s computer, he notified his commander, who initiated an investigation. A “U.S. Army Criminal Investigation Command” final investigation report (investigation report), dated January 6, 2012, states that probable cause had been established to believe that the plaintiff had “committed the offense of Possession of Child Pornography when his personal computer was forensically examined, and multiple images of child pornography were discovered.” The investigation report further notes […]
Furlong, et al. v. Zoning Board of Appeals of Salem, et al.
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 15-P-1174 Appeals Court MICHAEL F. FURLONG & another[1] vs. ZONING BOARD OF APPEALS OF SALEM & another.[2] No. 15-P-1174. Suffolk. October 7, 2016. – December 12, 2016. Present: Hanlon, Sullivan, & Blake, JJ. Zoning, Variance, Setback. Practice, Civil, Zoning appeal. Civil action commenced in the Land Court Department on February 17, 2012. The case was heard by Robert B. Foster, J. Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for the plaintiffs. Leonard F. Femino for BHCM Inc. BLAKE, J. The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina (Brewer), sought and received a dimensional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed a G. L. c. 40A, § 17, appeal in the Land Court. Following a jury-waived trial, the judge affirmed the board’s decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance. We agree and affirm. Background. We recite the facts found by the judge, which are undisputed by the parties. Brewer owns a nonrectangular parcel of property[3] with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina. The property consists of a large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot. The structures include a combination shower, bath, and laundry house, a pressure wash shed, an approximately 1,500 square foot temporary Quonset hut located in the center of the property, a small dock house, and a “marine travel lift” hoist (travel lift). As part of its marina operation, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut. By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the property, outside of the setback requirements of the local zoning ordinance. The proposed building would serve as the marina’s boat repair facility, allowing the removal of the Quonset […]
Verizon New England Inc. v. Board of Assessors of Boston (and a consolidated case) (Lawyers Weekly No. 10-173-16)
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-12034 VERIZON NEW ENGLAND INC. vs. BOARD OF ASSESSORS OF BOSTON (and a consolidated case[1]). Suffolk. April 7, 2016. – November 2, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.[2] Telephone Company. Taxation, Assessors, Personal property tax: value. Constitutional Law, Taxation. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William Hazel for the taxpayers. Anthony M. Ambriano for board of assessors of Boston. Maura Healey, Attorney General, & Daniel J. Hammond, Assistant Attorney General, for Attorney General & another, amici curiae, submitted a brief. Kenneth W. Gurge, for Massachusetts Municipal Association & others, amici curiae, submitted a brief. BOTSFORD, J. Two telephone companies appeal from a decision of the Appellate Tax Board (board) upholding the property tax assessments by the board of assessors of Boston (assessors) for fiscal year (FY) 2012 on certain personal property each company owns. At issue is whether the tax assessments, which were based on a “split” tax rate structure determined in accordance with G. L. c. 40, § 56 (§ 56), constituted a disproportionate tax that, as such, violated the Constitution of the Commonwealth. More particularly, the question is whether the split tax rate structure authorized by § 56 — a rate structure that provides for taxable personal property to be taxed at a rate identical to the rate applied to commercial and industrial real property but higher than the rate that would apply if all taxable property, real and personal, were taxed at a single, uniform rate — violates the proportionality requirement of Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth, as amended by art. 112 of the Amendments to the Constitution, as well as art. 10 of the Massachusetts Declaration of Rights. We conclude that the split tax structure authorized by § 56 and related statutes does not violate the Massachusetts Constitution. We affirm the board’s decision.[3] Background.[4] a. Procedural background. Verizon New England Inc. (Verizon) and RCN BecoCom LLC (RCN) (collectively, taxpayers) are subject to property tax in the city of Boston on personal property consisting primarily of machinery, poles, underground conduits, wires, and pipes (§ 39 property) that they own and use for business purposes. Pursuant […]
Kalu v. Boston Retirement Board, et al.
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 15-P-1148 Appeals Court OBIDIYA KALU vs. BOSTON RETIREMENT BOARD & another.[1] No. 15-P-1148. Norfolk. May 4, 2016. – October 14, 2016. Present: Katzmann, Carhart, & Sullivan, JJ.[2] Contributory Retirement Appeal Board. Public Employment, Accidental disability retirement, Retirement. Retirement. Practice, Civil, Appeal. Administrative Law, Decision, Judicial review, Official notice, Substantial evidence. Civil action commenced in the Superior Court Department on July 21, 2014. The case was heard by Peter B. Krupp, J., on motions for judgment on the pleadings. Charles E. Berg for the plaintiff. Elizabeth Kaplan, Assistant Attorney General, for Contributory Retirement Appeal Board. Edward H. McKenna for Boston Retirement Board. SULLIVAN, J. The plaintiff, Obidiya Kalu, appeals from a Superior Court judgment affirming a decision of the Contributory Retirement Appeal Board (CRAB). CRAB had determined that while Kalu’s appeal from the denial of accidental disability retirement benefits by the Boston Retirement Board (BRB) was timely, she was not entitled to those benefits.[3] We conclude that the appeal was timely, but we vacate the judgment affirming the denial of benefits and remand the case for further proceedings. Timeliness of appeal from retirement board decision. The first issue presented is whether the fifteen-day appeal period from an adverse decision of a retirement board set forth in G. L. c. 32, § 16(4), begins to run when a represented applicant receives proper notice of the retirement board’s decision, or when an applicant’s legal counsel receives such notice. We defer to CRAB’s reasonable interpretation of its enabling statute and conclude that the appeal period begins to run when notice is received by the applicant’s counsel. After a hearing, an administrative magistrate of the Division of Administrative Law Appeals (DALA) made factual findings on the issue of when notice was received, and by whom, all of which were adopted by CRAB. “We accept the facts found by CRAB when there is substantial evidence to support them, and also accept the reasonable inferences CRAB draws from the facts.” Rockett v. State Bd. of Retirement, 77 Mass. App. Ct. 434, 438 (2010) (citation omitted). We summarize the pertinent findings, all of which were supported by substantial evidence. Attorney James Ellis filed the claim for accidental disability retirement benefits on Kalu’s behalf on December 30, 2006. In October, 2008, the BRB held a hearing on Kalu’s […]
Categories: News Tags: Board, boston, Kalu, Retirement