Falmouth Selectman Kevin Murphy Challenges Retirement Rule Fund Change

In June 2009, Massachusetts passed pension reform that altered when, how much and what benefits and compensation municipal employees can receive for their years of public service.

That change has directly impacted one town official, Selectman Kevin E. Murphy, who has  filed a lawsuit against the Falmouth Retirement Board for not granting him his pension benefits.

The retirement board’s attorney, Nicholas C. Poser of Boston, said that prior to the law changing, an elected official could file for those benefits if they had six years of service and were at least 55 years old.

But when Governor Deval L. Patrick signed An Act Providing Responsible Reforms in the Pension System into law in 2009, Mr. Poser said, it negated the six-year provision for elected officials.

The following year when Mr. Murphy turned 55, Mr. Poser said, the selectman sought to obtain those benefits, but his request was denied by the retirement board. Since 2010 Mr. Murphy has been fighting that decision, initially taking his case to the Division of Administrative Law Appeals (DALA), which affirmed the retirement board’s denial of retirement.

He then appealed that decision to the Contributory Retirement Appeal Board, which affirmed DALA’s ruling, leading Mr. Murphy to bring the case to the state Superior Court in Boston. That court eventually remanded the case back to the Division of Administrative Law Appeals.

Mr. Murphy’s lawyer, Thomas Gibson of Cambridge, wrote in an e-mail that his client is essentially asking the independent state agency “whether a subsequent act of the Legislature can deprive one of a retirement right that existed when the member entered the retirement system.”

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This past October the Division of Administrative Law Appeals held an evidentiary hearing on the matter with post-hearing briefs filed about a month ago.

Both sides do not anticipate a decision any time soon, given the nature of the appeals process and the lack of sufficient funding for the court system. “The administrative process in Massachusetts for retirement cases is very, very slow for a number of reasons, but mostly because the Division of Administrative Law Appeals is understaffed,” Mr. Poser said. “This is the kind of case that doesn’t get prioritized under their rules.”

Another reason the case is taking so long to resolve, he said, is that “Mr. Murphy has been unhappy with the results, and when you’re unhappy you can appeal.”

Regardless of how the Division of Administrative Law Appeals rules, either side can continue to appeal those decisions all the way up to the Massachusetts Supreme Court, meaning the case could drag on for several more years.

While retirement benefit disputes are common, Mr. Poser said, this one is unusual because “the statute gave him rights he clearly had, but was contingent upon him reaching a certain age. Then the statute was repealed when he reached that service and age requirement.”

As to what Mr. Murphy stands to gain if successful in the case, Mr. Poser said court documents reveal his pension would be about $100 a month or $1,200 a year. That does not include additional benefits, such as health insurance, that are administered by the town’s personnel department. As of press time personnel director Denise Coleman was unable to supply details of what those benefits would be if Mr. Murphy were to retire today.

Yesterday Mr. Murphy stressed that the primary purpose of the appeal is that “we had a contract and when I entered into the contract the rules of the game were spelled out... I accomplished the rules of the game, which was six years of vested service, and then the rules changed after I left.”

If he is successful in winning the case, he said, he was unsure whether he would take his benefits at that time.

Mr. Murphy served two terms, a total of six years, as a selectman from 2003 to 2009. He then took two years off before running successfully for a third term in 2011. He has also been employed by the town since July 2009 as the sealer of weights and measures, but has not collected money for that position, which pays an annual stipend of $10,000 per year, since being reelected three years ago. In an interview this past November Mr. Murphy told the Enterprise he prefers to collect the $3,000 annual salary for selectman because it allows him to pay into the town’s health benefits.

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