Daniel Micari v. State Employees Retirement Commission (2014)

MEMORANDUM OF DECISION

This continued appeal is one initially brought by the plaintiff, Daniel Micari, from a declaratory ruling of the defendant state employee retirement commission (the commission) dated July 21, 2011 as well as a supplemental ruling by the commission of June 21, 2012.   The plaintiff is contesting the commission's conclusion that he is not eligible for a pension credit available for Tier II state workers as set forth in General Statutes § 5–192i(h) (active full-time employment in another state).   The initial appeal was remanded on April 24, 2013, and subsequently returned to this court after the commission issued a supplemental ruling at the court's request.

The record shows as follows.   The plaintiff sought a declaratory ruling from the commission regarding his right to the credit on April 26, 2011.   The commission denied the plaintiff's claim in its ruling of July 21, 2011.   The plaintiff then brought his appeal, seeking a declaratory judgment, on September 9, 2011.   On December 1, 2011, after a motion was filed by the plaintiff, the court ordered a remand to the commission to take further evidence.   The commission conducted further proceedings and on June 21, 2012, it issued a supplemental decision again rejecting the plaintiff's right to a credit.   The parties then argued to the court concerning the merits of the plaintiff's claim.   The court remanded the appeal on April 24, 2013 and the commission replied on October 25, 2013.   The court asked for additional briefs at the December 23, 2013 oral argument and the parties have complied.

The following consists of the commission's initial July 21, 2011 ruling for purposes of this decision.

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4. Petitioner was hired into state service on June 27, 1986 with the Department of Mental Retardation and immediately joined the Tier II non-contributory plan of the State Employees Retirement System (SERS).   A non-contributory plan means that the employee does not contribute any percentage of his or her pay or salary into the retirement fund towards his retirement benefit.

5. A Tier II member of SERS may obtain vesting and credited service for full-time employment previously held in another state provided certain requirements as set forth in Connecticut General Statutes, Section 5–102i(h) are met ․

6. On or about October 8, 1987, after Petitioner had commenced employment with the State of CT, the Office of the State Comptroller, Retirement Services Division issued Memorandum No. 87–53 to State agencies which in turn distributed it to their employees and which outlined retirement credit available to Tier II members.   This memorandum included information on the obtainment of retirement credit due to employment with other states.

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14. The criteria for the granting of service credit for other state employment were approved by the Commission at its November 19, 1992 meeting.   The criteria has been consistently and uniformly prospectively applied to all such “other state” credit requests since its enactment.

15. There is no substantive evidence that Petitioner sought or requested information from his employing Agency or from the Division concerning an application of retirement credit for the time of his employment with State of Massachusetts from his date of hire in Connecticut in June 1986 to November 19, 1992 when the criteria was established and prospectively implemented for all future requests.

16. There is no substantive evidence that Petitioner sought or requested information from his employing Agency or from the Division concerning an application of retirement credit for the time of his employment with State of Massachusetts from his date of hire in Connecticut in June 1986 to February 2009.

17. By letter dated February 23, 2009, more than 22 years after he began employment with the State of Connecticut, Petitioner made a request under Connecticut General Statutes, Section 5–192(h) to obtain retirement credit for his prior service to the State of Massachusetts from June 1971 to August 1986.

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19. The responses to the questionnaire from MSERS indicated that the Commission criterion for similarity had not been met as the MSERS did not contain the required similar provision to obtain out of state service:  this is MSERS did not allow credit in its retirement service for its employees who worked for the State of Connecticut from June 27, 1971 to August 13, 1986.

20. Petitioner's request to purchase this service was denied by the Division and referred to the Commission's Subcommittee on Purchase of Service and Related Matters (Subcommittee).

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22. On May 21, 2009, the Commission unanimously adopted the recommendation of its Subcommittee to deny Petitioner's request.   Petitioner was informed of this denial by e mail dated May 27, 2009 and then by letter dated June 4, 2009.

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24. On July 25, 2010 Petitioner appeared before the Commission.   The gravamen of Petitioner's argument was that a similarly situated State of Connecticut employee, Douglas Davies, had received SERS credit for the ten years (November 28, 1971 to November 27, 1981) he had worked for the State of Massachusetts.   The evidence presented by Petitioner and verified by the Division showed that Mr. Davies purchased this service on or about April 4, 1988.

25. Petitioner argued that he was never made aware of this opportunity to obtain retirement credit for his prior MSERS service at the beginning of his employment with the State of Connecticut (i.e. prior to 1992).   Petitioner asserted that his request for credit was analogous to Mr. Davies and as he had not been afforded the same opportunity to obtain MSERS service credit as had Mr. Davies, the Commission should ignore its own 1992 regulation concerning the criteria for “similar provision” and grant him the credit he was seeking.

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27. On August 26, 2010 following a review of the documentation provided by the Division the Trustees by majority decision voted to affirm the May 21, 2009 denial of Petitioner's request to obtain retirement credit under Connecticut General Statutes, Section 5–192(h), finding that his claim did not warrant a waiver of the Commission's criterion for similarity.

The June 21, 2012 supplemental ruling of the commission provided in part:

Findings of Fact

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2. The opportunity to purchase/receive credit for other state service is, and always has been, available for Tier II members since the Tier was implemented in 1982.   The opportunity is available today.   It was never limited to a six month window of opportunity.

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7. The 1985 Tier II Summary Plan Description (SPD) contained information on obtaining credit for “service with other state.”

8. Although the 1985 Tier II SPD stated that this out of state service may be applied for when the member applied for retirement benefits this provision was not followed.

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25. The 1991 Tier II Summary Plan Description (SPD) contained information on obtaining credit for “service with other states.”

26. The 1991 Tier II SPD contained information on obtaining credit for “service with other states” and was sent to the home address of all Tier II employees in June 1991.

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31. It was and is Petitioners' responsibility to read the SPD, familiarize himself with its provisions and if he had questions on its provisions to bring them to his agency human resource personnel or to contact the Retirement Services Division.

32. Although the 1991 Tier II SPD received by the Petitioner in June 1991 stated members should apply for the out of state service credit when hired, this would not have prevented Petitioner from inquiring about or applying for such credit in 1991.

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The Commission finds that a copy of the Tier II 1991 SPD was mailed to Petitioner at his home address.   Ms. Kopek testified that the 1991 SPDs were mailed to home addresses and if one was returned for an incorrect or insufficient address, the Division would locate the correct address and resend it.   Mr. Bell testified that with regard to the 1991 Tier II SPD he had “no reason to believe” that the SPDs were not mailed to the individual's home in 1991.

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There is no evidence that Petitioner ever sought or requested information from his employing Agency or from the Division concerning an application of retirement credit for the time of his employment with the State of Massachusetts from his date of hire in Connecticut in June 1986 to 2007 when he allegedly learned of the opportunity from coworker Douglas Davies.

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The commission's October 17, 2013 reply to the court was in part-as follows:  “[Micari] never had a ‘vested’ right to credit for his out of state service because obtaining such credit was contingent upon (1) formally applying for such credit and (2) meeting all of the eligibility requirements including but not limited to a determination that his Massachusetts service qualified under the ‘reciprocity requirement’ at the time of his application.   At all times, [his] interest in extra retirement credit was just a contingency interest, subject to his satisfying the applicable criteria.”   The parties filed briefs in reaction to this new finding by the commission.

The commission's attorney further replied to a question posed by the court at the oral argument of December 23, 2013 regarding the different bulletins issued by the commission in 1985 and 1987.   The plaintiff then replied to the commission's response on January 28, 2014.

The court in issuing its decision of April 24, 2013, resolved two points.   First the commission's findings of fact made in its initial and subsequent rulings were made upon substantial evidence.   The commission did not engage in the misapplication of a presumption relative to the facts.   See Dickman v. State Employees Retirement Commission, Superior Court, judicial district of New Britain, Docket No. 10–5015009 (February 17, 2009), aff'd per curiam, 139 Conn.App. 907, 55 A.3d 628 (2012).   Secondly, the commission does not have a relationship with retirees such that it has the “sole duty” to advise retirees on available benefits.   Albuquerque v. State Employees Retirement Commission, Superior Court, judicial district of New Britain, Docket No. 08–4018880, aff'd 124 Conn.App. 866, 10 A.3d 38 (2010).

There are two remaining issues.   The first is whether the commission is correct that the fact that Massachusetts allowed reciprocity in 1984 did not establish for the plaintiff a vested right to the § 5–192i(h) retirement benefit.   Vesting for these purposes occurs when the employee completes the process, and the right cannot be abolished by the employer.   See Mickey v. Mickey, 292 Conn. 597, 619, n.15, 974 A.2d 641 (2009);  Krafick v. Krafick, 234 Conn. 783, 797, 663 A.2d 365 (1995).  Thompson v. Thompson, 183 Conn. 96, 100, n.3, 438 A.2d 839 (1981).

Here the plaintiff was eligible to apply for the credit in the sense that Massachusetts in 1984 was giving reciprocity to applications by former Connecticut employees.   However, the plaintiff did not apply and did not establish that he met the provisions of § 5–192i(h).  As such, the commission correctly determined that his right had not “vested.”  Pineman v. Oeschlin, 195 Conn. 405, 412, 416, 488 A.2d 803 (1985) (must be eligible to receive benefits, not mere expectancy).

The second question is whether the misinformation in the 1985 Summary Plan should provide a justification for granting the § 5–192i(h) benefit.   The plaintiff is making a claim of negligent misrepresentation, one element of which is that the plaintiff reasonably relied upon that misrepresentation.   See Giametti v. Inspections, Inc., 76 Conn.App. 352, 364, 824 A.2d 1 (2003);  Nazami v. Patron Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).

The commission found that the plaintiff first learned about the possibility of additional credit in 2007, after speaking to Davies.  (June 21, 2012, supplemental final decision, discussion.)   The commission also found that he received a correct statement of the law in the 1991 Summary Plan. (Id., finding 32.)   It is clear therefore he never relied upon any representation included in the 1985 Summary Plan.

Having resolved the outstanding issues, the appeal is dismissed.

Henry S. Cohn, Judge

Cohn, Henry S., J.