The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-01-65
“DY A. “ Fo = y h z N Ro,
JOHN E. GREENE, .
Petitioner
Vv. DECISION ON 80C REVIEW
MAINE STATE RETIREMENT DONALD L. GARBRECHT
SYSTEM, et al., LAW LIBRARY
Respondents SEP 4 2002
This matter is before the court on petitioner's petition for review of final agency
action under M.R. Civ. P. 80C. In his petition, the petitioner asks the court to vacate a
decision of the Board of Trustees of the Maine State Retirement System and to remand
the matter to said Board for a determination that the petitioner is eligible for disability
benefits and to allow his application for disability retirement to be considered and
approved.
John E. Greene was born June 24, 1937. For purposes of retirement, he had 22
creditable years employment with the State of Maine, 18 years of service and 4 years
credit for military service. On June 24, 1997, petitioner became 60 years old, the normal
retirement age as defined by the Maine State Retirement System statutes, 5 M.R.S.A.
§ 17001(23). Quoting facts from petitioner's brief, which are undisputed:
In 1994, the plaintiff experienced congestive heart failure in late March and
underwent quadruple bypass surgery shortly after that. Plaintiff returned
to work in October, 1994, without restrictions. He worked in a stressful
environment at the Augusta Mental Health Institute (AMHI). Although
plaintiff took part in a regiment of diet, exercise and a stress management
program, his condition worsened. In the Spring of 1998, he was
hospitalized for atrial fibrillation. Upon his release from the hospital, he
contacted the System by telephone to enquire (sic) about a possible
disability pension. ...
On August 25, 1999, the petitioner applied to the respondent System for
retirement benefits. He retired from State service effective August 31, 1999. The first
payment of Mr. Greene's monthly service retirement benefit was made on September
29, 1999. On August 31, 1999, the petitioner filed an application for Maine State
Retirement System Disability Benefits on the basis of chronic heart failure/ syndrome X.
On September 3, 1999, without making a determination as to whether or not Mr.
Greene became disabled while in the service, the Executive Director of respondent
denied Mr. Greene's application for disability retirement benefits. The basis of the
denial was 5 M.R.S.A. § 17924. That section provides that a member qualifies for
disability retirement benefits if he becomes disabled while in service for the State and, if
a member of the Maine State Retirement System is covered under the law as written
prior to the amendment by P.L. 1991, ch. 887, § 7, is before normal retirement age.
Inasmuch as Mr. Greene had not applied for disability benefits prior to his normal
retirement age and he was a person covered under the law prior to the 1991
amendment, he did not qualify for a disability retirement. In addition, under 5 M.RS.A.
§ 17654, Mr. Greene had ceased to be a member of the Retirement System once he
became a beneficiary as the result of his own retirement. Therefore, the date he applied
for disability benefits was also the effective date of his retirement and removal as a
member of the Retirement System.
Also relevant to the decision of the respondent is 5 M.R.S.A. § 17812 which
provides that a beneficiary may select only one benefit and the beneficiary's election of
benefits is final and may not be changed or revoked at a later date. Contained within
section 17812 is language which, although not directly relevant to the issues in this case,
provides due process language indicative of the frustrations experienced by the
petitioner. The statute requires that the beneficiary's election of benefits is final and
may not be changed, "...if a beneficiary elects a benefit after receiving reasonable
notification of available options from the Retirement System, . . ."
Upon the petitioner's appeal of the decision of the Executive Director with
respect to his disability application, a prehearing conference in accordance with
procedural rules was held on May 31, 2000. The hearing officer bifurcated the appeal
and determined that a final decision would be made on the issue of whether Mr.
Greene's appeal was moot, as argued by the respondent, and that decision would be
made before considering Mr. Greene's attempts to obtain and provide evidence relating
to the “election” issue which is the gravamen of the petitioner's request for relief before
this court.
In 1990, the U.S. Government enacted The Older Workers Benefit Protection Act,
104 Stat. 978, 981-982, P.L. 101-433, § 105(c)(2)(A), October 16, 1990, resulting in Maine
legislative action 1991 P.L. Ch. 887, § 10 (5 M.RS.A. § 17941(1)(B)). Because the
Retirement System law prior to that date had limited eligibility for disability benefits
prior to normal retirement age, age 60, and were only available for 10 years or when
those benefits equaled to the normal retirement benefits, they were age-based
provisions in violation of the new federal law. However, the federal law allowed
employees to make an election as to whether to remain under such a law or to be
covered by a non-age-limit disability retirement provision. The Maine Legislature then
created such a disability provision not dependent upon age, but the election by the
employees contained deadlines. If the employee did not affirmatively elect to move
from the age-limit plan to the no-age-limit plan by the April 14, 1993 deadline, the
employee remained covered by the age-limit plan. P.L. Ch. 887, § 10 (5 M.R.S.A.
§ 17941(1)(E) & (2) and section 20). There was no statutory requirement that the
employee sign an election form indicating that they chose to remain in the age-limit
plan.
This election is the essence of petitioner's request for review because he insists
he was not made aware of such an election, he did not participate in such an election,
and that by failing to do so and electing the no-age-limit plan, he is statutorily
prohibited from having a consideration of his disability retirement application after
normal retirement age and after he had selected normal retirement benefits. While, pro
se in his petition, he does not articulate the point, he essentially is suggesting that he has
been denied a property right without due process of law as he was not given an
opportunity to make the election notwithstanding his disability occurring before his
normal retirement age. Further, the inability to make an election would violate federal
and state law.
The recommended decision of the Board of Trustees was submitted to the Maine
State Retirement System Board of Trustees under date of August 18, 2000. In the
recommendation, the hearing officer recommended that the Board of Trustees conclude
that Mr. Greene's appeal is moot, citing 5 M.R.S.A. § 17803(4), Mr. Greene could not
revoke an election of the method of payment of his benefit after payment of the first
benefit. In addition, relying upon sections 17654(2) and 17924, once Mr. Greene became
a service retiree, he was no longer a member of the System and only members of the
System could qualify for disability benefits. The conclusion recommended was that
even if the petitioner should prevail on his complaint of his inability to make a timely
election of the no-age-limit plan, his election of service retirement is final and therefore
the mootness conclusion prevails.
The proceedings after the issuance of the recommended decision become
important from a due process viewpoint. By letter August 31, 2000, petitioner asked
the respondent to stay further proceedings. The hearing officer responded on
September 5, 2000, that, understanding that Mr. Greene sought an opportunity to have
his attorney provide input, and because the Board of Trustees would not be able to
consider the matter until its October meeting, she would permit Mr. Greene an
extension until September 22, 2000, to file comments. By letter dated September 22,
2000, the petitioner requested an additional extension of time. By letter dated
September 26, 2000, Mr. Greene was notified by the respondent that the recommended
decision was expected to be presented to the Board of Trustees at its meeting on
October 12, 2000. He was invited to make a presentation of his position at that time. By
letter of October 12, 2000, the secretary to the Board of Trustees of the Maine State
Retirement System advised the hearing officer that "at its meeting on October 12, 2000,
the Board of Trustees remanded the case of John E. Greene to the Hearing Officer for a
hearing on the issue before the Board on the Recommended Decision in this matter
dated August 18, 2000. Mr. Greene had requested such a hearing and the staff did not
object.” It should also be noted that Mr. Greene did not attend the Board of Trustees
meeting on October 12 but sent an e-mail message requesting further hearing. On
November 7, 2000, the Chair of the Board of Trustees of the respondent issued an order
remanding the matter to the hearing officer "for the limited purpose of giving
Appellant the opportunity to state on the record why he believes his election of service
retirement should not make him ineligible to apply for disability retirement." This is
precisely the due process argument which petitioner has propounded throughout this
process, including oral argument on this petition.
A case management conference was scheduled for March 20, 2001, on the
remand. The meeting was rescheduled for March 22, 2001, both dates having been
provided in notices to the petitioner. After multiple e-mails, petitioner wrote to the
Board of Trustees a two-page letter under date of May 4, 2001, complaining about the
election process, the legislation, the paperwork, and the operation of the Maine State
Retirement System. He advised the Board that he was submitting the letter "in lieu of a
hearing on this matter and am waiving my right to have a hearing on the issue I am
appealing.” The Board accepted the letter in lieu of the hearing, ruled that it was in
compliance with the order on remand, and requested the hearing officer prepare a
revised recommended decision. The hearing officer did so under date of June 18, 2001,
again concluding that his appeal is moot. In addition to previous conclusions, the
hearing officer provides the following language:
In addition, when given the opportunity to readdress this issue when the
case was remanded to the hearing officer, Mr. Greene did not offer any
further arguments on why his election of service retirement should not
make him ineligible for disability retirement.
On July 23, 2001, the Board of Trustees of the Maine State Retirement System
dismissed Mr. Greene's appeal. In its decision, the Board noted that the issue raised by
the petitioner in his written statement submitted after the remand raised a second issue
challenging the fairness of the appeal process.
It is undisputable, and the petitioner does not provide a credible argument
otherwise, that the statutes prohibit a person in Mr. Greene's position to make
application for disability benefits after he has applied for and received normal
retirement benefits and therefore no longer becomes a member of the system.
However, the real issue before this court is whether the effect of those statutes should
be negated in the present case because of actions by the respondent Maine State
Retirement System violating the constitutional rights of the petitioner such that he was
denied the ability to participate, “elect,” the no-age-limit system and therefore not be
prohibited by law from making the disability application. The respondent argues that
even if petitioner should prevail on the issue of his failure to participate in the election,
he had removed himself from membership in the System and therefore not eligible to
make the application by his own acceptance of retirement benefits.
Considering the undisputed evidence before this court, was petitioner placed in
this untenable position in June of 1997, his normal retirement age, by his failure to have
an opportunity to make an election? In other words, even though it is clearly a moot
question at this time by operation of statute, is it because of wrongful actions by the
respondent affecting the constitutional rights of the petitioner that cause the issue to be
moot? Regardless of the fundamental constitutional question, the petitioner's petition
must fail for two reasons. First, the court is fully satisfied that the respondent provided
the necessary tools to the petitioner's employer to enable him to exercise that election.
The record clearly indicates the information and documentation provided to the Bureau
of Mental Health, petitioner's employer, including election forms and informational
sheets. It was the responsibility of the respondent to notify the employers of the
election opportunity and the responsibility of the employers to effectuate the process
with their employees. Therefore, the respondent is not the proper party to petitioner's
claim for denial of due process.!
1The court notes LOVELY-BELYEA v. MSRS, 2002 ME 138, published this date.
Since Greene claims he got no notice, he can’t claim late notice with prejudice.
7
Secondly, the petitioner was given explicit opportunity by a vote of the Board of
Trustees of the Maine State Retirement System to present his evidence at a hearing
called for that purpose before the hearing officer. Mr. Greene not only failed to present
such evidence but specifically waived his opportunity to do so. There is no evidence
produced by the petitioner to suggest he would not have had an opportunity and the
means to obtain the information and evidence necessary to present his point of view at
hearing. If there was a flaw in the notification system, and there is some evidence to
suggest that the State has acknowledged some employers did not provide full
opportunity for election, petitioner was given an opportunity to present it to the Board
and to establish a factual record.
There is a presumption of regularity of the acts of public officers implied in these
facts. Such a presumption is a disputable mandatory presumption. Hann v. Merrill, 305
A.2d 545 (1973) citing Kellar v. Savage, 20 Me. 199 (1841). This presumption would
require that the burden of going forward with evidence as to regularity falls upon the
party claiming irregularity, ie, Mr. Greene. Numerous e-mails and letters are in the
record suggesting that during a period of time when Mr. Greene was given the
opportunity to prepare for a hearing, he was in communication with an attorney or
attorneys. Any one of those persons would have been in a position to explain how he
could acquire the necessary information and evidence to meet his burden of going
forward. His failure to participate in the hearing and his failure to present evidence of
lack of regularity by the State of Maine, in addition to the waiver as explicitly stated, has
put this court in a position where it has no evidence to support Mr. Greene that he was
denied an election to change his disability retirement plan. He can only offer hearsay
comments from others that they, too, were not able to participate in the election.
Therefore, the opportunity to present a record to the Board of Trustees of the Maine
State Retirement System to overcome the effect of the statute prohibiting his
application for disability retirement prevails and the matter of his appeal before the
Board of Trustees is moot.
The entry will be:
Decision of the Board of Trustees of the Maine State Retirement
System under Appeal #023-99, John E. Greene, dated July 23, 2001, is
AFFIRMED.
Dated: August_/¢_, 2002 xe.
Donald H. Marden
Justice, Superior Court
Date Filed 9/4/01 Kennebec Docket No. AP01-65
County
Action Petition for Review
John E. Greene YS. Maine State Retirement System
Plaintiff’s Attorney Defendant’s Attorney
John E. Greene, Pro Se James Bowie, AAG
P.O. Box 129 6 State House Station
Townhouse Road Augusta ME 04333-0006
Lincoln, Maine 04353
Date of
Entry
9/4/01 Petition for Review of Final Agency Action(M.R.Civ.P. 80C), filed.
s/Greene, Pro Se
12/5/01 Appearance of James Bowie, AAG on behalf of Respondent, filed.
s/J. Bowie, AAG
12/14/01 Certified mail receipt upon Maine State Retirement, filed.
12/17/01 Certificate of Administrative Record, filed. s/Evans, Executive Director.
conc Notice of briefing schedule mailed to pltf. and atty of record.
1/17/02 Motion to Extend Time for Filing Brief, filed. s/J. Green, Pro se
Petitioner.
2/28/02 Plaintiff's Brief with attachments, filed. s/J. Green, Pro se
3/28/02 Respondent's Memorandum in Opposition to the Petition for Review, filed.
s/Bowie, AAG.
4/11/02 Plaintiff's Request for Extension for Reply Brief, filed. s/ J. Greene,
Pro se Petitioner.
4/30/02 Plaintiff's Request for a Second Extension for Reply Brief, filed.
s/J.Greene, Pro Se
5/3/02 PLAINTIFF'S SECOND REQUEST FOR EXTENSION, Marden, J.
Motion granted. Time extended to 5/10/02.
Copies mailed to Pltf. and atty of record.
5/13/02 Plaintiff's Reply Brief, filed. s/Greene, Pro Se (filed 5/10/02)
Notice of satting for ax a 3/0 A.
sent to attorneys of record:
7/3/02 Hearing had, Hon. Donald Marden Presiding.
No courtroom clerk. Case under advisement.