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Resnick v. Retirement Board of Employees Retirement System of Rhode Island

Superior Court of Rhode Island

September 21, 2017

LINDA RESNICK
v.
RETIREMENT BOARD OF THE EMPLOYEES RETIREMENT SYSTEM OF RHODE ISLAND

         Providence County Superior Court

          For Plaintiff: Vicki J. Bejma, Esq.

          For Defendant: John H. McCann, Esq.

          DECISION

          PROCACCINI, J.

          Plaintiff Linda Resnick (Plaintiff or Resnick) appeals from a decision of the Retirement Board of the Employees' Retirement System of Rhode Island (Defendant or Board) in which it affirmed the denial of her petition for an award of litigation expenses, which was made pursuant to the Equal Access to Justice for Small Businesses and Individuals Act (EAJA), G.L. 1956 §§ 42-92-1 et seq. For the reasons set forth in this Decision, this Court affirms the decision of the Board.

         I

          Facts and Travel

         Plaintiff worked as a teacher's assistant in the Pawtucket School Department for approximately twenty years until she retired in June 2013 under Title 45, as a member of the Municipal Employees' Retirement System (MERS). Before retiring, Resnick researched whether or not she would be permitted to substitute teach without risking suspension of her pension. Resnick's research directed her attention to G.L. 1956 § 16-16-24(a)[1], G.L. 1956 § 45-21-54[2], and publications made by the Employees' Retirement System of Rhode Island (System), dating back to 2002[3]. In addition, Resnick claimed that an employee of the System informed her that she could substitute teach for up to seventy-five days. Based on her research, and this communication, Resnick decided that she was eligible to substitute teach-while continuing to collect her MERS retirement pension-and subsequently began substitute teaching with the Pawtucket School Department. In early 2014, to clarify just how many days Resnick could substitute teach, her husband contacted the System and inquired as to how many days Resnick could substitute teach without impinging her benefits. This inquiry was considered by the Executive Director of the System, Frank Karpinski (Karpinski).

         On May 16, 2014, after consideration, Karpinski issued an Administrative Denial (Denial). Karpinski explained that the retirement laws of Rhode Island, specifically § 16-16-24, provide that in order to substitute teach after retirement without impinging on pension benefits, an individual must have retired as a teacher or athletic coach. Karpinski goes on to say that, because Resnick "retired as a municipal employee non-certified from the Pawtucket School Department and is collecting a pension from MERS[, ] . . . she is not eligible to engage in post-retirement employment by substituting as a teacher." Karpinski stated further that § 45-21-54, which governs post-retirement employment of retirees of MERS and allows a MERS retiree to work for a municipality for 75 full days in a calendar year, "does not authorize municipal retirees to be employed as a substitute teacher as that employment is governed by RIGL § 16-16-24." Karpinski concluded by stating: "Given that Ms. Resnick did not retire as a teacher, but rather retired as a municipal employee, she would be limited to post retirement employment with a city or town or a non-certified position with a school department." (Denial 2-3, May 16, 2014.) After receiving Karpinski's denial, Resnick timely requested a hearing on the Denial.

         The System held a hearing in front of Hearing Officer Marcaccio (Marcaccio) on September 16, 2014. After the hearing, Marcaccio issued a decision in which he held that Resnick could substitute teach up to seventy-five days in a calendar year-as opposed to a school year-without impinging upon her MERS pension. Marcaccio specifically noted: "I cannot find any language that precludes a municipal retiree from working as a substitute teacher in the Rhode Island school systems." (Marcaccio Decision 6, Dec. 2, 2014.) The Board adopted Marcaccio's decision on February 24, 2015 and ruled that Resnick could substitute teach for seventy-five days while continuing to collect her MERS pension. Following the Board's adoption of Marcaccio's decision, Resnick, through her counsel, submitted to the System a petition for an award of her litigation expenses. Karpinski issued an Administrative Denial of the petition in which he stated: "We have reviewed the applicable statutes regarding [Resnick's] claims relative to fees under the EAJA and have concluded that the Executive Director had substantial justification for his [initial] decision." (Admin. Denial 1, July 28, 2015.) Again, Resnick timely requested a hearing on this denial.

         The System held a hearing in front of Hearing Officer Rusbino (Rusbino) on February 23, 2016. After the hearing, but before Rusbino issued her decision, an amendment to § 16-16-24 became effective on July 12, 2016[4]. Rusbino later issued a decision holding that Resnick was not entitled to an award of litigation expenses because the position of the System was substantially justified. The Board scheduled consideration of Rusbino's decision for February 8, 2017. The Board adopted Rusbino's decision and sent Resnick notice of its decision on February 15, 2017. Resnick timely commenced this action on March 3, 2017.

         II

         Analysis

         The EAJA "'was propounded to mitigate the burden placed upon individuals and small businesses by the arbitrary and capricious decisions of administrative agencies made during adjudicatory proceedings.'"[5]Tarbox v. Zoning Bd. of Review of Town of Jamestown, 142 A.3d 191, 199 (R.I. 2016) (quoting Krikorian v. R.I. Dep't of Human Servs., 606 A.2d 671, 674 (R.I. 1992)). The act encourages individuals and small businesses to challenge agency actions that are not substantially justified. See Tarbox, 142 A.3d at 200; see also Gutierrez v. Barnhart, 274 F.3d 1255, 1261 (9th Cir. 2001) (reiterating that "'a clearly stated objective of [the EAJA] is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the ...


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