IRELAND, J.
We transferred these cases from the Appeals Court to determine whether, under G.L. c. 32, § 4(1)(p), retired
Statutory provisions and background. A detailed overview of the statutory provisions, administrative practice, and case law is in order.
Members are allowed, under certain conditions, to purchase credits for their employment in nonpublic schools under G.L. c. 32, § 4(1)(p), inserted by St. 1973, c. 760, which governs purchases of creditable service for work performed after 1973.
General Laws c. 32, § 4(1)(p), states, in pertinent part:
In enacting this provision, the Legislature overrode the veto of Governor Francis W. Sargent, who stated that he was concerned about the costs to taxpayers.
In October, 1974, the board voted to request an opinion from the Attorney General concerning the exact issue we are asked to decide: whether Social Security benefits qualified as "a retirement allowance, annuity or pension from any other source" under the statute. The Attorney General responded that the provision appeared to be an effort on the part of the Legislature to "fill a gap in the pension laws for public service rendered but not otherwise credited [and was] aimed at precluding any unjust double credit." He stated that the provision was limited to service in nonpublic schools where tuition is financed in full or part by the Commonwealth. He stated that the terms "retirement allowance," "pension," and "annuity" are defined in G.L. c. 32, § 1, with reference to the State system, not the Federal system.
For almost thirty years, from 1975 until 2004, the board interpreted § 4(1)(p) to permit eligible members to purchase credit without regard to their eligibility for Social Security benefits. CRAB also abided by this interpretation of the statute.
G.L. c. 32, § 3(4A), as appearing in St. 1994, c. 60, § 63.
It appears that this bill was advocated by members who were former nuns who had previously taught in private religious schools, and who were excluded from participating in the Social Security system prior to 1973. The limiting language "no credit shall be allowed and no payment shall be accepted for any service on account of which the member shall be entitled to receive a retirement allowance or other similar payment from the nonpublic school system, the federal government or any other source" was suggested by Governor William F. Weld, who was concerned that, without such language, the provisions could be interpreted to include not only the target group of teachers (i.e., those not covered by Social Security before 1973), but also any member whose nonpublic school did not have a pension program before 1973.
3. In 1999 and 2000, the Appeals Court interpreted certain
4. In 2004, a member whose material circumstances mirror those of these plaintiffs requested that she be allowed to purchase credit. The board denied her request and apparently argued before DALA that Social Security benefits fell under the exclusion in § 4(1)(p), because of Flaherty and Dube. The administrative magistrate agreed, concluding that the two provisions had to be construed as a harmonious whole. Duprey-Gutierrez vs. Teachers' Retirement Bd., CRAB Docket No. CR-04-0195 (June 4, 2004).
CRAB brought the Sigman decision to the attention of the judge below. Although his subsequent written memorandum and order did not refer to it, the judge did reject the reasoning of the 1975 Attorney General's opinion on which CRAB relied. Instead, the judge stated that, under Dube, §§ 3(4A) and 4(1)(p) needed to be construed in harmony and, therefore, "an exclusion of Social Security beneficiaries from the benefits bestowed by § 3(4A) would necessitate a similar bar under § 4(1)(p)." He further stated that because the plain language of the statutes states that a retirement allowance, pension, or annuity from "any other source" is excluded from creditable service, and because "Social Security beneficiaries are, inherently, retirement beneficiaries," the plaintiffs were "barred from purchasing creditable service."
Discussion. The plaintiffs and CRAB argue that the Flaherty and Dube cases do not require the result the board and the judge reached. We agree.
In Flaherty, the court's conclusion that the two provisions should be read together was in the context of identical and
Because the board's reliance on Flaherty and Dube was error, the issue is whether, as the board now argues, its almost thirty-year interpretation of § 4(1)(p) was erroneous.
"Where an agency determination involves a question of law, it is subject to de novo judicial review." Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375 (2000). The duty of statutory interpretation is for the courts, but where an agency's determination is reasonable, a court does not substitute its own judgment. Id., quoting Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525 (1997). In the particular circumstances of these cases, although we give no deference to CRAB, we are mindful that if the language of a statute is ambiguous, "contemporary administrative construction, especially if long continued, is of significance." Wellington v. Commissioner of Corps. & Taxation, 359 Mass. 448, 452 (1971), quoting Assessors of Holyoke v. State Tax Comm'n, 355 Mass. 223, 243-244 (1969). "An administrative interpretation developed during, or shortly before, the litigation in question is entitled to less weight than that of a long-standing ... interpretation." Mullally v. Waste Mgt. of Mass., Inc., 452 Mass. 526, 533 n.13 (2008), quoting 1A N.J. Singer, Sutherland Statutory Construction § 31.6, at 730 (6th ed. rev. 2002).
The board argues that the "plain language" of the two provisions shows that they are identical in scope; that the use of the word "any" in the phrase "any other source" necessarily means
First, we do not agree with the board that the language in § 4(1)(p) is unambiguous. If it were as clear as the board now claims, the board would not have had the need to ask the Attorney General for clarification as to whether its terms incorporated Social Security benefits.
Second, although the word "any" could mean that the Legislature intended a broad interpretation of the phrase "any other source," in this context, such an intent is not clear. In § 4(1)(p), members are barred from purchasing credit if they are "entitled to receive a retirement allowance, annuity or pension from any other source." In § 3(4A), members are barred from purchasing credit if such members are "entitled to receive a retirement allowance or other similar payment from the nonpublic school system, the federal government or any other source." Relying on what the judge referred to as a common understanding of Social Security, the board argues that the difference in language is not significant because Social Security is a "retirement allowance... from any other source" under § 4(1)(p). This argument has superficial appeal, but does not explain why, if the "any other source" language so clearly incorporated Social Security benefits, the Legislature would have added different words, including a specific reference to the "federal government," when it enacted § 3(4A). Moreover, the terms "retirement allowance," "annuity," and "pension" are defined in G.L. c. 32, §§ 1-28, and do not reference Federal statutes. See note 7, supra. In addition, even assuming that the board is correct that the common understanding is that Social Security is a retirement benefit, this does not answer the two important questions here: whether it was commonly understood to be so in 1973,
Moreover, G.L. c. 32, § 3(4), inserted by St. 1945, c. 658, § 1, a provision enacted before § 4(1)(p), which is referenced in the Attorney General's opinion, allows a member who taught in out-of-State schools to purchase credit unless the member is "entitled to receive a retirement allowance from any other state." At oral argument, counsel for the board stated that, under the language of § 3(4), such a member could purchase credit even if they could receive Social Security benefits. Viewing § 4(1)(p) in light of this provision, and taking into consideration that satisfying the law requiring public schools to educate students with special needs often comes through the placement of the students in private institutions, we conclude that it does not seem likely that the Legislature would have permitted members who taught out-of-State to purchase credit without regard to whether they
Our conclusion that the Legislature intended to impose different limits on the purchase of credit under § 3(4A) and § 4(1)(p) also explains the reasons the Legislature chose not to amend § 4(1)(p) when it enacted § 3(4A). Suliveres v. Commonwealth, 449 Mass. 112, 116-117 (2007) (courts are to assume that legislators are aware of existing law, and "scholarship and attitudes" pertaining to subject of statute). Therefore, although we do not disagree with the statement in Flaherty, supra at 134, that the two provisions should be read in harmony, see Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975), we conclude that interpreting the provisions to impose different limits on members does not compel the conclusion that the interpretation is not harmonious.
For these reasons, we conclude that Social Security benefits
Conclusion. The judgments of the Superior Court affirming CRAB's denial of the plaintiffs' requests to purchase service credit are reversed and the cases are remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
In addition, the board argues that there were bills introduced in the Legislature, after the 2004 interpretation of § 4(1)(p), that would have allowed more members to purchase credit, but that the Legislature chose not to enact them, as evidence that its interpretation of the statute is correct. Bills that fail to be enacted are an unreliable basis on which to infer the intent of a statute, Alves's Case, 451 Mass. 171, 178 (2008), quoting Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 193-194 (1976) ("Legislature's failure to enact proposed bill amending [statute] was `hazardous basis' on which to infer intent of earlier version of statute"). We also note that one of the proposed bills to which the board points would have amended § 4(1)(p) specifically, but it applied only to the first sentence, whereas at issue here is the second sentence.
The board also contends that the fact that the Legislature chose not to rewrite the relevant provision in § 4(1)(p) when it amended the statute in 2009 "is at least some indication that it does not feel an urgent need for change in response to [the board's] interpretation of nonpublic school service purchase rights." Given the support for our analysis of the two provisions, we are not persuaded by this argument.