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MINUTES
HULL CONTRIBUTORY RETIREMENT BOARD MEETING
November 4, 2003
A special meeting of the Hull Contributory Retirement Board, duly posted to be held in the Selectmen's Meeting Room Meeting Room, Town Hall, Hull, MA on the above date was called to order at 9:02 a.m. Present were Maurice Murphy, Chairman, Members Leonard Colten, Ann MacNaughton, Chris McCabe and James Yacobucci, and Retirement Administrator Marcia Bohinc.
Attendees:
Attorney Michael Sacco
Police Chief Donald Brooker
Attorney Gregory Sullivan
Phil Lemnios
John Riley
James Lampke
Police Chief Donald Brooker and his attorney Gregory Sullivan requested to be heard by the Retirement Board in response to a vote made during the regular September 24, 2003 Board meeting. At this meeting, the Board voted to rescind the vote made in the June 25, 2002 Retirement Board meeting to accept the Police Chief's contract of March 2002 with the Board of Selectmen. The vote indicated that the Board did not accept the Sick Leave Buyback (paragraph 2 of the contract) as pensionable, and any retirement deductions collected by the Retirement System based on the previous vote must be returned to the Chief.
At issue was the intent of the provision of the contract, and whether there was a quid pro quo in providing the Chief, in contemplation of retirement, an increased retirement benefit. Attorney Gregory Sullivan presented testimony regarding the negotiations Chief Brooker's contract, stating that the creation of the contract was a long process, and it was a reward of service. None of the provisions were made in preparation of retirement. Concerning paragraph 2, Sick Leave Buyback, Mr. Sullivan stated that the Chief was not seeking to convert unused sick leave into regular compensation; simply that the Chief no longer had sick leave, therefore did not have a buy back option, but had instead an increase in compensation. Mr. Sullivan went on to make the distinction between the 90-day buy-back provision
at retirement or termination and the annual one for three buy back provision to which the contract refers. Under the terms of the contract, if the chief got sick, he would have to go into his 90-day bank because he no longer has the regular sick leave.
Mr. Sullivan submitted the following documents for the Board's review:
National Association of Government Employees, Local R1-162 v. Labor Relations Commission
City of Lynn v. Labor Relations Commission
Affidavit of Philip E. Lemnios, former Town Manager
Minutes of Hull Contributory Retirement Board Meeting, June 25, 2002
Mr. Sullivan reminded the board of their unanimous vote on June 25, 2002 to accept the contract. To that, the Board heard testimony from former Town Manager Philip E. Lemnios and Board of Selectmen Chair John Riley regarding the genesis and intent of the contract.
Retirement Board Attorney Michael Sacco questioned why this is not a payment of unused sick leave in lieu of sick leave. In his opinion, there is an issue with taking a non-pensionable amount (unused sick leave) and receiving no compensation, and instead receiving the exact same amount of compensation in lieu of the benefit, thereby making it available for retirement purposes.
Mr. Sacco submitted the following CRAB case documents for the BoardWhitaker v. Teacher's Retirement Board
Incerto v. Teacher's Retirement Board
After much deliberation and discussion, the Board requested Mr. Sacco to provide a summarization. He stated that nothing was presented, under the rules and regulations of the Public Employee Retirement Administration Commission (PERAC) which defines what is and what is not regular compensation, to change his original position. Specifically, what is not regular compensation is any payments made in lieu of sick leave. In paragraph 2 of the contract, the sick leave buy back is waiving a non-pensionable amount (sick leave) for a commensurate increase in salary. In his opinion, the contract is an attempt of making a non-pensionable amount pensionable for the sole purpose of giving the chief a better retirement benefit. There was testimony to the contrary, however his legal opinion remains
unchanged.
Mr. Sacco reminded the Board that they had the right to affirm their vote of September 24, 2003, or vote to accept the contract. He also stated that upon PERAC's review of the retirement calculation, PERAC might deny the benefit. If PERAC does deny the benefit, the Chief has the right to appeal the decision to the Contributory Retirement Appeals Board (CRAB).
A motion was made by Lenny Colten accept the testimony former town manager Phil Lemnios, and John Riley and to award Chief Donald Brooker the additional compensation as stated in paragraph 2 of the March 2002 contract with the Board of Selectmen. Seconded by Chris McCabe. Voted: Leonard Colten, yes, Ann MacNaughton, yes, Chris McCabe, yes James Yacobucci, yes, Maurice Murphy, abstained.
Veteran Status
Based on all the documentation made available to the Board, PERAC, along with Thomas G. Kelly, Commissioner of the Massachusetts Department of Veterans' Services, have ruled the Chief Brooker is not a "veteran" for purposes of G.L. c. 32 § 1 or G.L. c. 4 § 7, cl 43rd. Lacking any further documentation, the Board cannot grant Chief Brooker veteran status - PERAC will deny the benefit upon their review of the retirement calculation. If any other information becomes available, the Board will reconsider the Chief's status and forward their decision to PERAC.
The Hull Contributory Retirement Board meeting adjourned at 11:05 a.m.
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