Number 15 January 10, 1972

Number 15 January 10, 1972 Honorable Freyda P. Koplow Commissioner of Banks Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner Koplow: You have requested my opinion on the following question: "May the Commonwealth make payment, for services ren- dered, to an employee, approximately fifty-one years of age, who retired after more than twenty years service with the Di- vision of Banks and Loan Agencies, and received payments thereafter, pursuant to his rights as a member of the State Employees' Retirement System, and who, after re-entering the service of said Division, filed with the Board of Retire- ment, pursuant to section 90B of Chapter 32 of the General Laws, a waiver and renunciation of all pension or retirement allowance to become payable to him, effective for the period of his employment with said Division?" For the reasons stated hereinafter, I answer your question in the af- firmative. General Laws, Chapter 32, section 91 generally prohibits retired state employees from receiving, at one and the same time, both a retirement allowance from the Commonwealth and compensation for rendering services to the Commonwealth. The very first sentence of this section provides that "[n]o person while receiving a pension or retirement al- lowance from the commonwealth, . . . shall, after the date of his retire- ment be paid for any service rendered to the commonwealth . . . '" (Em- phasis supplied.) The language emphasized in the above quotation is syntactically a restrictive phrase, i.e., it is essential to the scope and im- port of the prohibition delineated in section 91. That prohibition was in- tended to apply only to those retired state employees who were being paid for rendering services to the Commonwealth while they were actu- ally receiving a pension or retirement allowance from the Common- P.D. 12 77 wealth. Actual receipt of a retirement allowance contemporaneous with remuneration for the rendition of services to the Commonwealth is the practice explicitly prohibited by the statute. Section 91, however, is replete with exceptions to the general prohibi- tion contained therein. Jury service, certain service in an emergency, work as an election officer, service as an elected public officer, service in a confidential capacity in various agencies of state government, serv- ice as an auditor or master, certain services rendered to the General Court, and certain medical service are permitted. However, in two of those instances (service in a confidential capacity and certain emergency service), "there shall be deducted from the compensation of the services of any person [so] employed ... an amount equal to the retirement al- lowance or pension received by him." In addition, section 91 permits retired employees to serve by ap- pointment of the governor for a term of years, or to serve by appoint- ment of a mayor, city council, board of selectmen, or the General Court, but in those cases the employee "shall be paid the compensation attached to such position; provided, that he files with the treasurer of the governmental unit paying such pension or allowance, a written statement wherein he waives and renounces for himself, his heirs and his legal representatives, his right to receive the same for the period during which such compensation is payable." General Laws, Chapter 32, section 90B provides, in part: "Any person retired from the service of the common- wealth, . . . may waive and renounce for himself, his heirs and legal representatives any portion of the pension or re- tirement allowance payable to him from the commonwealth, . . . for such period as he may specify in such waiver and re- nunciation ..." One of my predecessors has construed section 90B as permitting the waiver of the entire amount of the pension (1963 Op. Atty. Gen'l 144), and I am in agreement with that construction. However, I cannot agree with so much of a still earlier opinion which appeared to reach a con- trary result and which held that section 91 was unaffected by the provi- sions of section 90B. That earlier opinion was premised on the conclu- sion, which I think was mistaken, that the intent of section 90B "was to permit veterans retired from the service of the Commonwealth ... to reduce the amount of their retirement allowances" so that the veterans' Federal pension rights would be unaffected. 1960 Op. Atty. Gen'l 41, 42-43. While the General Court in 1955 did consider several bills which re- ferred only to waivers of pension rights by veterans, the legislation which was finally enacted contained broad, non-restrictive, unambigu- ous language. In my view, the compelling inference to be drawn from 78 P.D. 12 the statute as enacted is that any retired state employee, regardless of whether or not said employee is a veteran, may legally waive his retire- ment allowance and thereby render himself eligible for employment by the Commonwealth. Section 90B operates as an election available to any and all retired state employees to whom re-employment is offered by the Commonwealth. Each retired employee must decide whether he wants to continue to receive his retirement allowance or whether, in lieu of that allowance, he chooses to waive his right to receive that allowance for the opportunity of once again being gainfully employed by the Com- monwealth. In other words, section 90B frees any retired state em- ployee, if he so elects, from the general prohibition articulated in section 91. The General Court could certainly have used more restrictive lan- guage in enacting section 90B, if its intent was to leave the prohibitions contained in section 91 unaffected. However, I believe that the Legisla- ture envisioned, as I do, the benefits to be gained by a broad waiver provision. The Commonwealth has many retired employees who pos- sess considerable expertise in their given fields. This expertise is lost to the Commonwealth when the employee retires. In some cases, the deci- sion to retire, as in the instant case, may have been premature. In return for the difference between the pension which would be payable and the regular rate of compensation of the position involved, the Common- wealth gains the services of a valuable public employee. Of course, the decision whether to offer re-employment to retired employees rests en- tirely with the appointing authorities involved, and a retired employee has no "right" to such re-employment. In direct response to your question, then, it is my opinion that section 90B exempts a retired state employee who has executed a waiver there- under from the prohibitory language of section 91, and that, accordingly, the Commonwealth may make payment for services rendered by Francis E. Skerry, effective for the period of his re-employment by the Com- monwealth, so long as his waiver executed pursuant to section 90B re- mains in force. Very truly yours, ROBERT H. QUINN Attorney General