Preview:

Marie J. PARENTE vs. STATE BOARD OF
RETIREMENT & another.
Marie J. PARENTE vs. STATE BOARD OF RETIREMENT & another. [FN1]
No. 10-P-2114.
September 7, 2011. - November 3, 2011.
Public Employment, Retirement benefits. Contributory Retirement Appeal Board. Retirement. Pension. General Court.
Statute, Construction. Words, "Regular compensation."
CIVIL ACTION commenced in the Superior Court Department on November 16, 2009.
The case was heard by James R. Lemire, J., on a motion for judgment on the pleadings.
Charles J. Brucato, Jr., for the plaintiff.
Melinda E. Troy for the defendants.
Present: Berry, Meade, & Milkey, JJ.
MEADE, J.
Marie J. Parente appeals from a Superior Court judgment which upheld the decision of the Contributory Retirement
Appeal Board (CRAB) that (1) her annual allowance for expenses, (2) her travel per diem allowance, and (3) the
taxable value of her State house parking space were properly excluded from her retirement calculations and do not
constitute "regular compensation" under G.L. c. 32, § 1. We affirm.
1. Background. The facts are not in dispute. Parente was a member of the Massachusetts general court, serving as a
Massachusetts State representative from February, 1981, through December, 2006. During her service, she was a
member of the Massachusetts State employees' retirement system. Parente retired on January 7, 2007. In November,
2006, she applied for her pension benefits with the State retirement board (board). In a letter dated December 4, 2006,
Parente requested that her "travel income," be considered "regular compensation" under G.L. c. 32, § 1, and therefore
included in her calculation for retirement benefits. Parente's "travel income" included: (1) an annual allowance for
expenses pursuant to G.L. c. 3, § 9B (annual allowance); (2) a travel per diem allowance pursuant to G.L. c. 3, § 9B
(travel per diem allowance); and (3) the taxable value of the parking space provided to her through the bureau of state
office buildings. On February 22, 2007, the board met and voted to deny Parente's request to include the above as
regular compensation for retirement purposes. Parente timely appealed the board's decision to CRAB, and CRAB
referred the matter to the division of administrative law appeals (DALA) for a hearing. On June 27, 2008, DALA
affirmed the board's decision, and on November 3, 2009, CRAB issued a decision adopting DALA's conclusion and
affirming the board's decision. Challenging CRAB's decision, Parente filed an action in Superior Court pursuant to
G.L. c. 30A, § 14. After a hearing, the judge denied Parente's motion for judgment on the pleadings, and affirmed
CRAB's decision.
On appeal, Parente raises three claims: (1) the judge erred in deferring to CRAB's interpretation of "regular
compensation"; (2) "regular compensation" should include Parente's annual allowance, her travel per diem allowance,
and the fair market value of her parking space she was provided; and (3) the judge's reliance on certain case law and
840 Code Mass. Regs. § 15.03 (2006) was misplaced.
2. G. L. c. 3, § 9B. In addition to an annual salary, each member of the general court receives a $7,200 annual
allowance for expenses pursuant to G.L. c. 3, § 9B, which is entitled "Member's allowances for expenses, travel, meals
and lodging." The statute states that "each member shall be entitled to receive $600 on the first day of each session and
the first day of each month thereafter until said sum of $7,200 shall have been paid." G.L. c. 3, § 9B, as appearing in
file:///C|/Users/Peter/Desktop/opinions/10-p-2114.html[6/21/2013 10:40:02 AM]




St.2000, c. 159, § 10.
Section 9B also states that, depending on where a general court member resides, each member shall be paid a per diem
allowance for "mileage, meals and lodging." Id., as appearing in St.1979, c. 686, § 2. The amount of the travel per
diem allowance, which is paid in addition to the $7,200 annual allowance, is based on how many miles the member
must travel to Boston. For example, a State representative living in the town of Belmont may receive a travel per diem
allowance of $10 per day, while someone living in Milford (where Parente resided during the period in question) may
receive an allowance of $26 per day. A general court member is eligible for this allowance regardless of whether the
general court is in session, as long as it is "in the performance of his official duties" and "upon certification to the state
treasurer that he was present at the state house." G.L. c. 3, § 9B, inserted by St.1979, c. 686, § 2. Unlike the $7,200
annual allowance, the travel per diem allowance is not automatically received by a member. In order to receive this
allowance, a State member must complete a "Per Diem Request Form" and attest, under pains and penalties of perjury,
that the request is in compliance with G.L. c. 3, § 9B.
Each State representative is also provided a space in which to park while they are working in the State house. Parente
was given such a space. Her parking space was given an estimated annual fair market value of $1,560.
3. Discussion. Parente claims that the definition of "regular compensation" pursuant to G.L. c. 32, § 1, is broad enough
to encompass the annual allowance, the travel per diem allowance, and the taxable value of her parking space at the
State house. The board, DALA, CRAB, and the judge concluded that it is not. Pursuant to G.L. c. 30A, § 14, as
appearing in St.1973, c. 1114, § 3, we are required to give "due weight to the experience, technical competence, and
specialized knowledge of the agency [CRAB], as well as to the discretionary authority conferred upon it." We "will
reverse only if [CRAB's] decision was based on an erroneous interpretation of law or is unsupported by substantial
evidence." State Bd. of Retirement v. Contributory Retirement Appeal Bd., 77 Mass.App.Ct. 452, 455 (2010), citing
Foresta v. Contributory Retirement Appeal Bd., 453 Mass. 669, 676 (2009). Parente argues that the judge erred in
giving deference to CRAB's statutory interpretation, because that interpretation was incorrect. We disagree.
"Where an agency's interpretation of a statute is reasonable, the court should not supplant it with its own judgment."
Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 441 Mass. 78, 82 (2004). Upon review, there is nothing
in the record or case law to indicate that CRAB's interpretation of "regular compensation" is unreasonable. For the
reasons discussed in the sections below, the judge properly gave deference, not abdication as Parente suggests, to
CRAB's statutory interpretation.
a. "Regular compensation." Section 1 of G.L. c. 32, as appearing in St.1979, c. 681, defines, in relevant part, "regular
compensation," for any period subsequent to December 31, 1945, [FN2] as "the salary, wages or other compensation in
whatever form, lawfully determined for the individual service of the employee by the employing authority, not
including bonus, overtime, severance pay for any and all unused sick leave, early retirement incentives, or any other
payments made as a result of giving notice of retirement" (emphasis supplied). By regulation, the public employee
retirement administration commission, which promulgated regulations regarding the State retirement system, has
further defined "regular compensation" as a payment that must "be made as remuneration for services actually
rendered." 840 Code Mass. Regs. § 15.03(1)(a)2 (2006).
(i)                                                                                                                              $7,200 annual allowance under G.L. c. 3, § 9B. Section 9B of G.L. c. 3, permits each member of the general court
to receive $7,200 annually for "expenses." Parente claims that in light of the Supreme Judicial Court's decision in
Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651 (2006), this annual allowance must be considered part
of her "regular compensation" pursuant to G.L. c. 32, § 1, and therefore must be included in her retirement calculation.
We disagree.
In Bulger, the plaintiff was a university president who received a monthly housing allowance as part of his
compensation package. [FN3] Id. at 651- 652. "Bulger received his housing allowance as part of his regular paycheck."
Id. at 653. The Supreme Judicial Court rejected CRAB's refusal to include that monthly allowance in Bulger's
retirement calculations. Id. at 658-660. In so holding, the court found it compelling that the payments were "recurrent,"
"regular," and "ordinary." Id. at 658. Parente focuses her argument on these factors, but our analysis is not so confined.
In Bulger, the court also found compelling that the university's board of trustees, and Bulger himself, knew that these
file:///C|/Users/Peter/Desktop/opinions/10-p-2114.html[6/21/2013 10:40:02 AM]




monthly allowances were not being used, nor were they really intended to be used, for housing expenses. Id. at 658-
659. In fact, the trustees knew Bulger would continue to reside at his house in the South Boston section of Boston, and
"felt at that time that Bulger had done an outstanding job as university president and considered Bulger's acceptance of
a housing allowance as an important enhancement of his compensation package that would motivate his interest in the
presidency for an additional five-year term." Id. at 658-659.
Parente argues that the $7,200 annual allowance, split into monthly payments, makes this allowance "recurrent,"
"regular," and "ordinary" and therefore makes it "regular compensation." Although we do not disagree that the annual
allowance may be recurrent, regular, and ordinary, these reasons alone do not require us to deem it "regular
compensation" under G.L. c. 32, § 1. While the fact that a payment is recurrent, regular, and ordinary is important in
determining whether it qualifies as regular compensation, the analysis does not end there. The payment in question
must not only meet these requirements, but also must "comport with the other requirements of § 1." Id. at 658. Even
though § 1 does state "other compensation in whatever form," the statute further qualifies that the compensation must
be for "individual service of the employee by the employing authority" (emphasis supplied). In fact, G.L. c. 3, § 9B, as
appearing in St.2000, c. 159, § 10, specifically states that "[e]ach member of the general court shall receive $7,200
annually for expenses to be paid as follows" (emphasis supplied). [FN4]
Parente claims that the annual allowance is not required to be used for the stated reasons, i.e., expenses. In order to be
considered regular compensation, however, the annual allowance would need to have been given in exchange for the
service Parente provided during her time as a State representative. While Parente was not required to turn in receipts or
proof of expenses to receive the annual allowance, this does not mean there was no requirement that the allowance be
used for the stated reasons. The annual allowance was implemented because of the recognition that general court
members often have more expenses than those in private industry (due to the fact they often live outside the city of
Boston). The annual allowance was developed so that members did not have to pay for those expenses out of their
salary. Simply because Parente did not have to prove that she had any expenses in order to receive the annual
allowance does not then mean it was intended to be additional compensation for her services. As CRAB reasonably
concluded, this simply could mean that the members of the general court were placed on an "honor system" when it
came to this annual allowance. Here, unlike in Bulger, there is nothing in the record that indicates the § 9B allowance
was not intended to be used for expenses.
Unlike the Bulger housing allowance, we conclude that the annual allowance is more closely analogous to the personal
use of a city-provided automobile as in Pelonzi v. Retirement Bd. of Beverly, 451 Mass. 475 (2008), and the "uniform
allowance" given to state correctional officers in O'Brien v. Contributory Retirement Appeal Bd., 76 Mass.App.Ct. 901
(2010). In Pelonzi, Beverly's former commissioner of public safety requested the value of his personal use from a city-
provided automobile be included as regular compensation pursuant to G.L. c. 32, § 1. Pelonzi, supra at 476. Pelonzi's
"employment agreement with the city expressly required that he be 'on-call' for emergency response at all times ...
[and] it appears that the city contemplated the automobile as a tool, or piece of equipment, that would enable [Pelonzi]
to perform his job more effectively. Although the characterization in an employment agreement does not determine, as
matter of law, whether a job benefit falls within the scope of 'regular compensation,' the language of a particular
employment agreement may be relevant ... to demonstrate mutual expectations of an employer and employee." Id. at
480 (citation omitted).
On appeal, Pelonzi, like Parente does here, likened his circumstances to those in Bulger, in support of an expanded
definition of "regular compensation." To this, the Supreme Judicial Court reiterated that "the housing allowance
payments [in Bulger ] were never intended to be used for housing," whereas the employment agreement between the
city and Pelonzi seemed to indicate that the automobile was provided so that Pelonzi could be on call for work at all
times. Ibid.
While there is no employment agreement in this case, we do have a statute that clearly states each member shall
receive $7,200 annually for "expenses." "If a sensible construction is available, we shall not construe a statute to make
a nullity of pertinent provisions or to produce absurd results." Flemings v. Contributory Retirement Appeal Bd., 431
Mass. 374, 375-376 (2000). To conclude that the Legislature intended the $7,200 annual allowance to be for anything
other than what it states (i.e., expenses) would be to ignore the plain and unambiguous language of G.L. c. 3, § 9B.
"As always, we interpret the statutory language ' "according to the intent of the Legislature ascertained from all its
file:///C|/Users/Peter/Desktop/opinions/10-p-2114.html[6/21/2013 10:40:02 AM]




words construed by the ordinary and approved usage of the language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the
purpose of its framers may be effectuated." ' " Boston Police Patrolmen's Assoc., Inc. v. Boston, 435 Mass. 718, 719-
720 (2002), quoting from O'Brien v. Director of the Div. Of Employment Sec., 393 Mass. 482, 487-488 (1984). Here,
it is plain that the Legislature intended the $7,200 to be for general court members' expenses, not additional
compensation or wages, even in the broad category of "regular compensation."
In O'Brien v. Contributory Retirement Appeal Bd., we determined that a correctional officer's annual "uniform
allowance" did not constitute "regular compensation" for purposes of determining retirement calculations. O'Brien,
supra at 903, citing Pelonzi, supra at 480. We held that "[a] uniform allowance is not a form of payment, or 'other
compensation,' for the services rendered by the employee; rather, it is a benefit offered by the public employer as a
matter of convenience so that its employees will be attired in standard and identifiable clothing on the job.... The
uniform is a 'tool' required to be used by the employees in [that public employer's] office." O'Brien, supra at 903. See
840 Code Mass. Regs. § 15.03(1)(a)2. The uniform allowance, therefore, was not intended to compensate O'Brien for
his "service," but was given to him to use "in connection with his official duties and job title." Ibid. [FN5]
In similar fashion, Parente, as a State representative, was not given the $7,200 allowance in exchange for her service in
the general court, but it was provided to assist her in serving the Commonwealth by providing a means to pay for the
expenses associated with working as a representative. General court members are required to attend sessions in Boston,
just as correctional officers are required to wear a standard uniform.
(ii) Per diem payments. In addition to the $7,200 annual allowance, G.L. c. 3, § 9B, provides for a per diem allowance
to each member of the general court for "mileage, meals and lodging." Unlike the annual allowance of $7,200, which
is uniformly given to all members, the travel per diem allowance is based on where a member resides. Members must
fill out a form and sign, under penalties of perjury, that they were at the State house on the day of the requested
allowance. For many of the same reasons stated above, this travel per diem allowance is also not "regular
compensation" because it is not "for the individual service of the employee by the employing authority." G.L. c. 32, §
1. Nor does Bulger transform the travel per diem allowances into regular compensation.
Section § 9B states that "a member of the general court who lives in the city or town of ... Milford ... shall receive a
per diem allowance for mileage, meals and lodging of $26 per day." G.L. c. 32, § 9B, as amended through St.2000, c.
159, § 10. To be considered "regular compensation," the payments must be for the "individual service" of a member.
G.L. c. 32, § 1. It cannot be gainsaid that travel per diem payments were not made in exchange for the individual
services of the members. A general court member living in Belmont presumably provides similar services as a member
living in Amherst. The reason for the differential is the difference in the distance each must travel to Boston, not in the
services provided once there.
The combination of the plain language of G.L. c. 32, § 9B, stating the purpose of the payments, the legislative history,
and the fact that members received different travel per diem payments based on their residence (not years of service or
any other service based criteria), take these payments out of the realm of Bulger and into the purview of O'Brien.
Unlike Bulger, there is no indication that the intent of the Legislature was anything other than stated. In the report to
the Massachusetts general court from the Advisory Board on Legislative and Constitutional Officers' Compensation
dated April 4, 1974, it specifically states: "[A] member who lives in the western part of the state carries an undue
burden of expense for his personal travel to attend sessions unless there is some reimbursement by the state; and if
reimbursement is to be allowed for those members, it would be unfair to other members living closer to the State
House if they were not to be compensated at all for their travel." House Bill No. 5625 (filed April 4, 1974). That report
further recommended that a member be given the travel per diem allowance only when actual travel expenses were
incurred. Thus, the purpose of the travel per diem payments under § 9B was to reimburse a member for actual
expenses incurred. We do not consider it a persuasive contrary fact that receipts did not need to be submitted in order
to receive the travel per diem allowance.
(iii) The parking space. Parente, as well as other members of the general court, were given access to a parking space to
use while working at the State house. Parente claims that the fair market value of the parking space should be
considered "regular compensation" for purposes of her retirement calculation. The value of the parking space is
file:///C|/Users/Peter/Desktop/opinions/10-p-2114.html[6/21/2013 10:40:02 AM]




approximately $1,560 per year. We decline to include this value in the definition of "regular compensation" pursuant
to G.L. c. 32, § 1. As the Supreme Judicial Court recognized in Pelonzi, "regular compensation" is not created when an
employer supplies an employee "with other noncash job related accessories and benefits (e.g., cellular telephones,
personal computers, facsimile machines, parking spaces ) to enable their employees to perform their jobs more
efficiently, and may authorize the personal use of these benefits as a matter of convenience" (emphasis supplied).
Pelonzi, 480 Mass. at 482.
Judgment affirmed.
FN1. Contributory Retirement Appeal Board.
FN2. In June of 2009, the definition of "regular compensation" was amended. See St.2009, c. 21, § 2. The new
definition, which became effective July 1, 2009, but not applicable here, states that regular compensation "shall be
compensation received exclusively as wages by an employee for services performed in the course of employment for
his employer." G.L. c. 32, § 1, inserted by St.2009, c. 21, § 2.
FN3. In addition, Bulger argued unsuccessfully that monthly payments made by the university to an annuity fund in his
name also qualified as "regular compensation," but that argument has little impact with regard to Parente's case.
FN4. In 1953, the special commission established to perform an investigation and study relative to travel and expense
allowances for members of the general court submitted a report recognizing that members of the general court "are
subjected to expenses above and beyond the demands made upon the man in private industry, which must come out of
their salary. To meet these additional demands and assure the public that its interests are properly represented [the
commission] ... recommended an annual payment of four hundred dollars." House Bill No. 2491 (filed March 31,
1953).
FN5. Parente's reliance on Christensen v. Contributory Retirement Appeal Bd., 42 Mass.App.Ct. 544 (1997), is
misplaced. There, the plaintiffs negotiated agreements for annual "longevity" payments that were to be included in
their "regular compensation." Id. at 547-548. Here, however, as detailed above, the annual allowance was not for
services rendered. Parente also incorrectly finds support in Olsen v. Teachers' Retirement Bd., 70 Mass.App.Ct. 429
(2007), where a stipend paid to a group of teachers was treated as "regular compensation" as part of a collective
bargaining agreement. Id. at 430. After the first year, the stipend was to "increase at the rate of the general salary
increase of that year and to continue whether or not the teacher remained in a city-offered [health] plan." Id. at 431.
Here, however, the $7,200 annual allowance, the per diem travel allowance, and the value of the parking space are not
similar to the bargained for stipend increase in Olsen. As we held in Olsen, the stipend could be compared to the
housing allowance in Bulger, because "the school committee could well have thought that in order to retain teachers
who were losing certain benefits, the committee had to provide a more generous compensation package." Olsen, supra
at 435. In the circumstances presented here, the allowances were simply not given to State representatives to provide
them greater compensation or to prevent them from leaving their positions.
file:///C|/Users/Peter/Desktop/opinions/10-p-2114.html[6/21/2013 10:40:02 AM]

Download 10-p-2114.pdf

Massachusetts Law