15 Mass. App. Ct. 14 | Mass. App. Ct. | 1982
This case is before this court pursuant to G. L. c. 30A, § 15, for review of a judgment entered by the Superior Court pursuant to G. L. c. 30A, § 14, which set aside a decision of the Contributory Retirement Appeal Board (CRAB) and ordered CRAB to enter a decision requiring that the Lowell retirement board add regular interest to the plaintiff’s retirement funds. CRAB had previously upheld a decision of the Lowell retirement board denying the accumulation of interest on the plaintiff’s retirement funds after he reached the age of seventy. The plaintiff, a veteran, turned seventy years of age on July 31, 1978, and chose to continue his service as an employee of the city of Lowell pursuant to G. L. c. 32, § 90G, inserted by St. 1978, c. 557, rather than to retire. The plaintiff’s retirement funds are currently held in an account by the Lowell retirement system.
General Laws c. 32, § 22(6)(c), as appearing in St. 1945, c. 658, § 1, states in pertinent part that “[rjegular interest credited on or after January first, nineteen hundred and forty-six, shall be compounded annually on December thirty-first of each year, and subject to the provisions of paragraph (d) of this subdivision shall be allowed upon the balance outstanding in each member’s account as of the immediately preceding December thirty-first.” This section of c. 32 specifically addresses the addition of interest to the accounts of “members.” There is no dispute that the plaintiff is a non-retired “member” of the Lowell retirement system. The provisions of paragraph (d) referred to in § 22(6) (c) do not apply in this case since they deal with members whose services have been terminated. Therefore, § 22(6)(c) mandates the yearly addition of interest to the plaintiff’s account in the absence of any other overriding provision.
The defendant contends that G. L. c. 32, § 90G, contains such a provision. That section extends to certain employees who are veterans the option of remaining in service after the age of seventy, the normal mandatory retirement age. The plaintiff opted to remain an employee of the city of Lowell
The language relied upon by the defendant, however, specifically refers to a “veteran’s pension allowance.” The amount of a veteran’s pension allowance depends in part upon salaries earned by the veteran while a member in service and in part upon the total number of years of service. See G. L. c. 32, §§ 56-60. The amount of interest credited to a veteran’s account is not a variable which is taken into consideration in determining the amount of a veteran’s pension. The lower court correctly construed the statutory language relied upon by the defendant as providing that the pension received by a veteran who has reached the age of seventy and who is a member in service cannot be affected by any change in salary level after the age of seventy or increased by taking into consideration the number of years of employment beyond the age of seventy. This is in keeping with the sentence in § 90G relied upon by the defendant which states that “[n]o deductions shall be made from the regular compensation of each member under the provisions of this chapter for service after he has attained age seventy . . . .”
Furthermore, the interpretation given to § 90G by the lower court is consistent with the objectives of the Legislature. The section was enacted to preserve the special benefits of certain veterans who opt to work beyond the age of seventy. The language of § 90G specifically provides that “[njothing in this section shall be construed to deny any veteran or his surviving spouse any benefit under any section of chapter thirty-two to which he would have been en
The defendant contends, however, that the fact that § 90G is silent on the matter of interest indicates a legislative intent not to include interest. The cases cited by the defendant are not persuasive. In Gurley v. Commonwealth, 363 Mass. 595 (1973), the court held that no interest was due on payments under G. L. c. 258A, where the statute was silent upon the question of interest. Similarly, in Broadhurst v. Director of the Div. of Employment Security, 373 Mass. 720, 725 (1977), the court pointed out that “General Laws c. 151A, in toto, and § 42 in particular, are silent as to the addition of interest . . .’’in holding that no interest was due on an award under G. L. c. 151 A. The case at hand presents a different question, however. There is a specific section requiring the addition of interest, and the issue is whether that section is overridden by § 90G.
The defendant also cites General Elec. Co. v. Commonwealth, 329 Mass. 661 (1953), in support of its contention that interest should not be paid here. That case is not persuasive. In the instant case, as opposed to the General Elec. case, there is no “except” clause to the express requirement of § 22(6) (c) that interest be added to the accounts of members in service. Moreover, § 90G does not refer specifically to any matter which could be construed as “similar” to the matter of interest. Cf. General Elec., 329 Mass. at 664.
Judgment affirmed.