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 ...