LEONARD FLEMINGS vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & another [Note 1] (and five companion cases [Note 2])

LYNCH, J. The plaintiffs appeal from a decision of a Superior Court judge affirming the decision of the Contributory Retirement Appeal Board (CRAB) under G. L. c. 30A, s. 14. The sole issue on appeal is whether, as a matter of law, St. 1996, c. 71, s. 2 (act), which amended G. L. c. 32, s. 4 (1) (h), to provide certain "buy back" provisions to retirees who have served in

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the armed forces of the United States or are members of the Massachusetts National Guard or Active Reserve, applies only to individuals who are '[v]eteran[s]" within the definition of G. L. c. 32, s. 1, and G. L. c. 4, s. 7, Forty-third. We transferred this case here on our own motion and affirm the decision of the Superior Court judge.

1. Facts and procedural history. The essential facts are not in dispute. Each of the six plaintiffs teaches in a Massachusetts school and is a member of the teachers' retirement system. Each served in either the National Guard or the Active Reserves. Each applied to the Teachers' Retirement Board (board) to purchase creditable service under the provisions of the act based on the fact that the act states that it applies to members of the National Guard or Active Reserve. The board, CRAB, and the judge all denied the plaintiffs' applications because none of the plaintiffs qualified as '[v]eteran[s]" pursuant to G. L. c. 32, s. 1, and G. L. c. 4, s. 7, Forty-third. All plaintiffs concede that they are not "[v]eteran[s]" as defined by those statutes.

2. Judicial review of administrative agencies. We give great deference to decisions of administrative agencies. Cobble v. Commissioner of the Dep't of Social Servs., 430 Mass. 385, 390 (1999). Where an agency determination involves a question of law, it is subject to de novo judicial review. Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 595 (1974), citing G. L. c. 30A, s. 14 (8) (c) (predecessor to G. L. c. 30A, s. 14 [71 [cl). "The duty of statutory interpretation is for the courts . . . but . . . [where the agency's] statutory interpretation is reasonable . . . the court should not supplant [it with its own] judgment." Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525 (1997), quoting Massachusetts Med. Soc'y v. Commissioner of Ins., 402 Mass. 44, 62 (1988).

3. Statutory construction. In interpreting statutes, "[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute, so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature." Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946). If a sensible construction is available, we shall not construe a statute to make a nullity of

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pertinent provisions or to produce absurd results. See Manning v. Boston Redevelopment Auth., 400 Mass. 444, 453 (1987), and cases cited.

4. Relevant statute. The relevant portion of the act is as follows:

"SECTION 2. Paragraph (h) of subdivision (1) of section 4 of chapter 32, as appearing in the 1994 Official Edition, is hereby amended by adding the following paragraph.

"Notwithstanding the provisions of this chapter or any other general or special law, rule or regulation to the contrary, a member in service of a retirement system as defined in section one [Note 3] who is a veteran who served in

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the armed forces of the United States and who has completed ten or more years of membership service shall be entitled to credit for active service in the armed services of the United States; provided, however, that such active service shall not be credited until such member has paid into the annuity savings fund of such system, in one sum or in installments, upon such terms and conditions as the board may prescribe, makeup payments of an amount equal to the ten percent of the regular annual compensation of the member when said member entered the retirement system; and, provided further that such creditable service shall not be construed to include service for more than four years provided further, that such creditable service shall not be allowed for any period of active service for which said veteran has received credit pursuant to paragraph (h) of subsection (1) of section 4 of chapter thirty-two of the General Laws or for which said veteran receives a federal military pension. This act shall apply to Massachusetts National Guard and Active Reserve personnel, both former and present. Creditable service time, both enlisted and commissioned may be applied toward retirement on a ratio of five years guard service or five years active reserve service substitutable for each year of active service. [Emphasis added.]

"SECTION 3. . . . Terms used in this act shall have the same meaning as those terms defined in section one of chapter thirty-two of the General Laws [Note 4]."'

5. Analysis. The plaintiffs rely on essentially two words contained in one sentence to support their contention that they need not be "veterans" to obtain the benefits of the act: "This act shall apply to Massachusetts National Guard and Active Reserve personnel, both former and present" (emphasis added). They argue that the use of the word "personnel" rather than the word "service" (or "veterans") is significant and demonstrates

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that the Legislature wanted to expand the category of beneficiaries of this particular retirement benefit. They also point to the use of the word "act" rather than "chapter" to argue that, with regard to members of the National Guard and Active Reserve, the Legislature did not intend to incorporate into the retirement statute references to the definition of the word "[v]eteran" in G.L. c. 32 [Note 5]. We do not agree.

The plaintiffs' interpretation ignores the plain language of the act which clearly sets out the two requirements for eligibility for the creditable retirement service: veteran status and ten years' membership in the retirement system. See St. 1996, c. 71, s. 2. Furthermore, the first sentence of s. 2 of the act explicitly states that it is amending G. L. c. 32, s. 4 (1) (h), and s. 3 of the act incorporates the meaning of the terms in G. L. c. 32, s. 1. This plain language negates the plaintiffs' contention that, by using the word "act," the Legislature meant to exempt members of the National Guard and Active Reserve from other provisions of the retirement statute.

The plaintiffs ask us to interpret the act so as to exempt them from the requirement that one be a veteran to be eligible for the retirement benefit, yet say nothing about the second requirement for eligibility listed in the act, ten years in the retirement system. In the first sentence of St. 1996, c. 7 1, s. 2, the ten-year requirement is linked to the veteran requirement by the word "and." Following the plaintiffs' argument to its logical conclusion, if we ignore the requirement that one be a veteran, we should also ignore the ten-year requirement. To do so would create the absurd result that National Guard or Active Reserve members with less than ten years in the retirement system would be eligible for a benefit that formerly active duty members of the armed services who have less than ten years in the retirement system were not. This interpretation also would render meaningless the last sentence of s. 2 of the act, which equates five years of National Guard or Active Reserve service with a year of active service.

In view of the foregoing we conclude that the Legislature

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intended to restrict the application of the act to members of the National Guard or Active Reserve who are also veterans.

Judgments affirmed.