PERAC Memo #12 - 1999: Appeals Court Decision on G.L. c. 32, § 16(2)

Appeals Court Decision on G.L. c. 32, § 16(2)

Summary

This memo reports the Appeals Court decision in DuPont v. Commissioners of Essex County, which confirmed PERAC's prior position (Memo #23/1997) that members terminated before the 1996 repeal of G.L. c. 32, §16(2) are not entitled to pre-termination notice and hearing under that section. Boards should not apply §16(2) or conduct hearings under it for any member terminated either before or after the section's elimination; no further action is required beyond discontinuing any such practice.

Full Text

PERAC MEMO #12/1999 M E M O R A N D U M TO: All Retirement Boards FROM: Rob ert F. Stalnaker, Executive Director RE: Appeals Court Decision on G.L. c. 32, § 16(2) DATE: February 10, 1999 The Appeals Court has recently ruled in the case of DuPont v. Commissioners of Essex County that members who were terminated before the Legislature eliminated G.L. c. 32, § 16(2) in 1996 are not eligible for retirement board notice and a hearing pursuant to § 16(2) before their termination becomes effective. The Commission provided this interpretation in PERAC Memo #23/1997 and this interpretation has now been upheld. Retirement boards may not adhere to the provisions of § 16(2) and may not hold any hearings for any members who were terminated before or after the section was eliminated. The appellants in DuPont , who met the service requirements of § 16(2) when they were terminated, were employees of a county engineering department and had been laid off in 1988 as part of a budget crisis. The appellants contended that they could not be terminated until a fair summary of the facts upon which their employer was to act was filed with their retirement board and, upon the member’s request, a hearing held because they were terminated before the Legislature removed § 16(2). The court ruled that the Legislature intended to abort any lawsuits pending when it removed the section. The court also speculated that the appellant’s would have likely lost regardless of the removal of § 16(2) because they had waited six years to request a hearing. We will notify you of any further appellate activity in regard to this case. We trust the foregoing is of assistance. If you have further questions or concerns, please contact this office.