JONATHAN B. KAPLAN vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & another [Note 1]

BROWN, J. The plaintiff, formerly a permanent State government employee, was less than fifty-five years old when his employment with the State Board of Retirement was terminated at the end of 1989 due to budgetary constraints. He had a little over six years of creditable State service. Thereafter, the plaintiff left his accumulated deductions in the retirement system for six additional years until, in April of 1996, he applied to the State Board of Retirement for a retirement allowance to take effect on his fifty-fifth birthday, in June of that year. His application was denied because he had less than the ten years of creditable

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service required by G. L. c. 32, § 5(l)(m) [Note 2]. The denial was upheld by the Contributory Retirement Appeal Board (CRAB) and then by a judgment of the Superior Court. This appeal ensued, in which the plaintiff asserts that CRAB's decision was incorrect because he was eligible for an allowance under an earlier-enacted statutory provision, G. L. c. 32, § 10(2)(b), that requires only six years of service [Note 3]. Put in terms of the applicable standard of review (which we draw from G. L. c. 30A, § 14[7]), the question before us is whether CRAB made an error of law in concluding that § 5(l)(m) rather than § 10(2)(b) governed the plaintiffs application. There was no error.

None dispute that the plaintiff falls within the literal scope of G. L. c. 32, § 10(2)(b), inserted by St. 1951, c. 784, § 1, and as amended through St. 1973, c. 1041:

"Any member classified in Group 1, Group 2 or Group 4, who has completed six or more years of creditable service, and who, before attaining age fifty-five . . . is removed or discharged from his office or position without moral turpitude on his part . . . or any such member whose office or position is abolished, who leaves his accumulated total deductions in the [retirement system], shall have the right upon attaining age fifty-five, or at any time thereafter, to apply for a termination retirement allowance . . . . Such allowance shall be determined in accordance with the provisions of [s. 51, or the provisions of any other section governing superannuation retirement applicable to such member. . ." (emphasis supplied).

On the other hand, the more recently enacted G. L. c. 32, s. 5(1)(m), inserted by St. 1977, c. 744, and as amended through St. 1991, c. 138, § 385, reads in pertinent part as follows:

"Notwithstanding any provision of this chapter to the contrary, any member classified in Group 1 or Group 2, except for elected officials subject to the provisions of [§ 10(2)(b)], whose employment first commenced on or

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after [January 1, 1978], and who has not completed ten or more years of creditable service before attaining the mandatory age requirements of this chapter . . . shall on the termination of his employment be entitled to a return of his accumulated deductions with interest. Such return of said accumulated deductions shall be in lieu of any superannuation retirement allowance provided under this chapter" (emphasis supplied).

Because the plaintiff was classified in Group 1, was not an elected official, was first relevantly employed after 1978, and had not completed ten years of creditable service, the literal application of § 5(l)(m) has two direct consequences. First, the plaintiff on the termination of his employment was entitled to a return of his accumulated deductions with interest. Second, such return was to be in lieu of "any superannuation retirement allowance" under c. 32.

The plaintiff posits that, because he did not seek a "superannuation retirement allowance," but a "termination retirement allowance" under § 10(2)(b), he is unaffected by the plain language of § 5(1)(m). To support his view that CRAB ignored a statutory separateness in the two allowances, he points to enacted subject headings in sections 5 and 10 [Note 4]. The heading of s. 5 is "Superannuation Retirement" and under § 10 (the heading of which is "Resignation, Failure of Re-election or Reappointment, Removal or Discharge"), the subheading of § 10(1) [Note 5] is "Right to a Superannuation Retirement Allowance" while

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that of § 10(2) is "Right to a Termination Retirement Allowance." St. 1945, c. 658, § 1. Accordingly, the plaintiff notes, the body of § 10(l) speaks of a "superannuation retirement allowance" and that of § 10(2) refers only to a "termination retirement allowance."

Nevertheless, it is far from plain that the § 5(l)(m) reference to "any superannuation retirement allowance" under c. 32 cannot include a § 10(2)(b) "termination retirement allowance" under the circumstances: where neither phrase is defined in the statute; where § 5(l)(m) was enacted later than, not contemporaneously with, § 10; where the minimum age of fifty-five to receive a § 10(2)(b) allowance is also generally the age of earliest superannuation retirement under G. L. c. 32, § 5(l)(a); and where the § 10(2)(b) allowance is to be "determined in accordance with the provisions of [§ 5], or the provisions of any other [applicable] section governing superannuation retirement." s. 10(2)(b). Additionally, much as the title of an act cannot limit its operation to a field more narrow than that established by the act itself, see Perlera v. Vining Disposal Serv., Inc., 47 Mass. App. Ct. 491, 498 (1999), the various headings cited cannot control the specifics of the statutory provisions, although they may shed light on ambiguous language, see American Family Life Assur Co. v. Commissioner of Ins., 388 Mass. 468, 474,

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cert. denied, 464 U.S. 850 (1983) [Note 6]. We think some ambiguity inheres in the legislative phraseology, and therefore also explore other sources of statutory insight. Cf. Bay Colony Mktg. Co. v. Fruit Salad, Inc., 41 Mass. App. Ct. 662, 666 n.5 (1996) (title "not conclusive as to [act's] ambiguities"). For several reasons we think a reasonable interpretation is that the "termination" retirement allowance set out in § 10(2)(b) counts as a subspecies of "any superannuation retirement allowance" for the purposes of § 5(l)(m).

First, that § 10(2)(b) stands affected by § 5(1)(m) is suggested by the latter's applicability "[n]otwithstanding any provision of [c. 32] to the contrary," cf. Police Dept. of Boston v. Fedorchuk, 48 Mass. App. Ct. 543, 546-547 (2000), and confirmed by the explicit invocation of § 5 in § 10(2)(b). The plaintiff argues the latter reference incorporates only the retirement allowance calculation method in § 5(2). If that were so, the Legislature could have restricted its language to that particular subsection, much as it did in referring specifically to § 5(2) in § 10(l). See note 5, supra [Note 7]. The plaintiffs proposal to focus on § 5(2) rather than on all relevant provisions of § 5 would require us to overlook plain statutory language, contrary to settled principle. See Retirement Bd. of Concord v. Colleran, 34 Mass. App. Ct. 486, 488-489 (1993).

Second, and looming large in our analysis, § 5(1)(m) contains an exception for "elected officials subject to the provisions of [s. 10(2)(b)]." If, as the plaintiff suggests, § 5(l)(m) were not applicable to members qualifying for the "termination" allowance of § 10(2)(b), the exception would be superfluous. "If a sensible construction is available, we shall not construe a statute to make a nullity of pertinent provisions . . . ." Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376 (2000).

Finally, in construing the retirement statute, we habitually

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refrain from substituting our judgment for that of CRAB where its interpretation is reasonable. See Flemings v. Contributory Retirement Appeal Bel., supra at 375; Hosking v. Contributory Retirement Appeal Bd., 49 Mass. App. Ct. 710, 712 (2000). We find nothing unreasonable in reading the subsequently enacted language of § 5(l)(m), "any [Note 8] superannuation retirement allowance provided under this chapter," to encompass the "termination" retirement allowance of § 10(2)(b).

Judgment affirmed.