Goodrich v. Bd. of Trustees of Maine Pub. Employees Retirement Sys.

• Court: Superior Court of Maine
• Decided: March 17, 2011
• Docket: KENap-10-11
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss AP-IO-ll .,'1;\1ft\. 1~£I\j- 3/(7);1.. 0 Ii ELLEN M. GOODRICH, Petitioner ORDER ON APPEAL v. OF ADMINISTRATIVE ACTION PURSUANT TO RULE 80C BOARD OF TRUSTEES of Maine Public Employees Retirement System Respondent

Pending before the court is the March 4,2010 appeal by the petitioner, Ellen M.

Goodrich, from the February 23, 2010 decision of the Board of the Maine Public Employees

Retirement System ("MPERS") denying Goodrich's appeal from a Hearing Officer's decision

and upholding denial of her request for Group Life Insurance ("GU") coverage. Goodrich

contends that the MPERS Board's decision is in violation of statutory provisions, is unsupported

by substantial evidence on the record as a whole, and is arbitrary and capricious and

characterized by an abuse of discretion. The parties were heard at oral argument on September

9,2010. The court has reviewed the record, considered the parties' written and oral

presentations, reviewed pertinent case law, and issues the following order.

Factual Background

The facts, as found by MPERS, do not appear to be in dispute. The petitioner, age 52,

resides in Vassalboro, Maine and has worked for School Union 52 for twenty-five years. l (R.

10.11,25.5.) She is currently an education technician II. (ld.) Although she became eligible for

I The facts as adduced by MPERS are now slightly out of date; the petitioner is fifty-five years old at the time ofthis order, and has worked for School Union 52 since 1985, plus one year of previous . employment. (R. 10.19, 1.28.)

1 GLI coverage in 1995, when educational technicians became classified as teachers for retirement

system purposes, her employer did not inform her of this status. (R. 10.12-10.13,25.5.)

On September 18, 2006, Lynn Pease, Survivor Services Supervisor at MPERS 2, wrote to

Ms. Goodrich, indicating that MPERS could not ascertain whether her employer had provided

her a GLI application when she became eligible. (R. 1.10, 25.5.) Quoting the Maine State

Retirement System Rule 601 3, the letter explained,

"Whenever it is determined ... that, through an error by MSRS personnel or payroll personnel, deductions for insurance are not taken, the participant will be given the option to: 1. Pay back premiums from the date of eligibility or date last payments were taken; 2. File evidence of insurability with coverage effective on the date approved by the insurance company from which the policy was purchased; or 3. Wait for an open emollment". (There are no plans for an open emollment in the near future.)

(R. 1.10.) The letter went on to provide, "If you choose to select coverage and pay back

premiums or are refusing coverage you should complete an Application for Group Life Insurance

Coverage.... If you select coverage we will calculate the premiums due from the date of your

eligibility of March, 19974 through the present and notify you of the amount." (Id.) The letter

concluded, "If we have not received a response by October 18, 2006, you will be considered to

2 At the time, MPERS was known as the Maine State Retirement System, or MSRS. (See letter, R. 1.10.) 3 Now 94-411 C.M.R. ch. 601, § 4 provides: 4. Whenever the Executive Director determines that an employee lacks coverage or has a lapse in coverage due to error on the part of the employer or MainePERS, coverage may be implemented or reinstated as follows: A. Participant, or employer in the case of employer-paid premiums, pays back premiums from the date of eligibility or the date oflast payment to the present; B. Participant files Evidence of Insurability with coverage effective on the first day of the month following one month of additional employment in an eligible position beyond the date approved by the insurer under contract with MainePERS. In the event that the insurer denies coverage based on Evidence of Insurability, the participant may restore coverage under the provisions of paragraph A. 4 Although the letter indicates that the petitioner became eligible for GLI in 1997, all parties agree that she actually became eligible in 1995. (R. 25.5, n.!.)

2 have refused coverage." (ld.) The petitioner acknowledged receiving the letter (R. 10.11, 25.5),

but did not respond within thirty days or by the October 18,2006 deadline. (R.25.5.) She

testified before the hearing officer that she did not elect option one, payment of back premirnns,

because she "did not feel it was [her] responsibility to pay back the premiums for something that

[she] never received," and that it was not her fault that she had not had the insurance coverage

initially. (R. 10.12.)

In January 2007, the petitioner filed a Request for Basic and I or Additional Insurance

Coverage Requiring Evidence of Insurability with MPERS, noting on the application that she did

not wish to make back premium payments. (R. 1.28,25.5.) The record does not show whether

the petitioner submitted the requisite evidence of insurability to Aetna at that time. (R. 25.5.) In

June 2007, the petitioner's counsel requested that MPERS review the petitioner's eligibility

based upon her recent submission. (R. 1.38,25.5.) In July 2007, Ms. Pease informed the

petitioner's counsel that Aetna had not received the required evidence of insurability fonn and

requested that the petitioner submit one. (R. 1.35,25.5.) In October 2007, the petitioner filed

another Request for Basic and I or Additional Insurance Coverage Requiring Evidence of

Insurability. (R. 1.34, 25.5.) In November 2007, the petitioner filed the appropriate form with

Aetna. (R. 10.24-25,25.5.) In January 2008, Aetna notified the petitioner that it was declining

coverage due to her current medical conditions. (R. 1.26-1.27,25.5-25.6.)

In February 2008, the petitioner, through counsel, informed MPERS that Aetna had

declined to insure the petitioner, and she requested that MPERS provide her with GLI on a

prospective basis without requiring payment of back premirnns. (R. 1.24, 25.6.) On March 10,

2008, Lynn Pease denied the petitioner's request on behalf ofMPERS, explaining that because

the petitioner had neither paid back premiums nor provided evidence of insurability within thirty

3 days from the September 2006 notification letter, she was considered to have refused coverage,

and since her evidence of insurability resulted in denial of coverage by Aetna, she would remain

refused. (R. 1.23,25.6.) On or about April 11,2008, the petitioner, through counsel, requested

that the case be expedited in order for it to be consolidated with two other similar cases that were

awaiting final decision by John C. Milazzo, Chief Deputy Executive Director and General

Counsel of MPERS. (R. 1.21.) The record does not reflect any consolidation of this case with

other pending cases. On April 18,2008, Marlene McMullen-Pelsor, Manager of Payrolls

Administration, Employer and Ancillary Services for MPERS, affirmed Ms. Pease's decision

denying GLI coverage to the petitioner. (R. 1.22,25.6.) On April 29, 2008, the petitioner

appealed that decision on the ground that she had been entitled to GLI from 1995 on and that she

had never refused it, in 1995, 1997, or 2006. (R. 1.18,25.6.) On June 9, 2008, General Counsel

Milazzo issued an Initial Decision affirming the staff s decision that the petitioner was not

eligible for GLI coverage at that time because she had not complied with the terms of the

September 2006 letter, so her only remaining option "was to apply under the evidence of

insurability procedure," and Aetna's denial under that procedure was final. (R.1.7-1.1O, 25.6.)

General Counsel Milazzo's final decision, issued December 9,2008, attached and incorporated

the initial decision because the petitioner had not presented new evidence or new arguments

subsequent to the initial decision. (R. 1.5.)

The petitioner's appeal of General Counsel Milazzo's final decision was heard before

hearing officer Rebekah Smith on March 27, 2009. (R. 10.1 et seq.) The hearing officer's

report, dated June 3, 2009, recommended affirming General Counsel Milazzo's decision because

the petitioner "did not enroll when initially offered the opportunity in 2006 and, as an employee

later seeking coverage, she has been denied coverage by the insurer after submitting evidence of

4 insurability." (R.21.7.) MPERS's Board of Trustees adopted the recommendation of the

hearing officer and, in a final decision dated February 23, 20lO, affirmed General Counsel

Milazzo's denial of GLI to the petitioner. (R. 25.9.) The petitioner timely appealed to this court.

Standard of Review

When reviewing an agency decision in its appellate capacity, "[t]he standard of review is

'limited to whether the governmental agency abused its discretion, committed an error of law, or

made findings not supported by substantial evidence in the record.'" Seider v. Bd. ofExam 'rs of

Psychologists, 2000 ME 206,'~ 8,762 A.2d 551,555 (quoting Davric Maine Corp. v. Maine

Harness Racing Comm'n, 1999 ME 99, ~ 7, 732 A.2d 289,293) (brackets omitted); see also 5

M.R.S. § l1007(4)(C) (20lO) (On review, "[t]he court may ... [r]everse or modify the decision

if the administrative findings, inferences, conclusions or decisions are ... [i]n violation of

constitutional or statutory provisions [or u]nsupported by substantial evidence on the whole

record"). "When the dispute involves an agency's interpretation of a statute administered by it,

the agency's interpretation, although not conclusive, is entitled to great deference and will be

upheld unless the statute plainly compels a contrary result." Maritime Energy v. Fund Ins.

Review Bd., 2001 ME 45,~ 7, 767 A.2d 812, 814 (quotations omitted).

"A person aggrieved by final agency action, stemming from an agency's adjudicatory

role in which the agency has applied an agency regulation, may challenge both the agency action

and the validity of the rule in the Superior Court action." Conservation Law Found v. Dep 't of

Envtl. Prot., 2003 ME 62, ~19, 823 A.2d 551,558. "The standard of review for a challenge to

the validity of a rule, whether raised in a declaratory judgment action or a Rule 80C petition, is

contained in 5 M.R.S.A. § 8058(1)." Jd. at ~21, 823 A.2d at 559.

If the rule exceeds the rule-making authority of the agency, it is invalid. 5 MR.S.A. § 8058(1). If a rule does not exceed the rule-making authority, the court

5 next reviews "any other procedural error" related to the promulgation of the rule. Jd. ... Finally, if the rule is procedurally correct and within the agency's rule­ making authority, it is reviewed substantively "to determine whether the rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Jd.

Jd. Because the petitioner's appeal also consists of an attack upon the regulation applied as

arbitrary and capricious and contrary to statute, the court must consider the standard of review

for agency rules and regulations as well.

Discussion

The court agrees with MPERS's delineation of the issues in this case:

I. Whether Petitioner's automatic eligibility for GLI coverage began one month and one day after her first day of eligible employment in 1995, and expired thirty-one days thereafter. II. Whether Petitioner refused GLI coverage in 2006 pursuant to Rule 601.

(Br. of Resp. at 2.) The corollary subissue to issue II, then, is whether the provisions of Rule 601

under which the Petitioner mayor may not have refused coverage are sustainable. The court will

address the issues in turn.

I. Statutory and Regulatory Framework

The legislature provided that basic GLI "must be available to all eligible participants" in

MPERS, including teachers. 5 5 M.R.S. §§18056, 18055 (2010). When an employee becomes

eligible for MPERS membership, he or she is "automatically insured for the amounts of basic

[GLI coverage], beginning on the first day of the month following one month of employment

after the employee becomes eligible. Each employee shall complete an application for insurance

coverage within 31 days of becoming eligible." 5 M.R.S. §18058(1) (2010). "Any employee not

wanting to be insured under this subchapter, at the time the employee first becomes eligible,

shall, on the application form, give written notice to the employee's employing officer and to the

5 As an educational technician, the petitioner is a "teacher" for MPERS's purposes. See generally 5 M.R.S. §17001(42) (2010).

6 retirement system that the employee does not want to be insured." 5 M.R.S. § 18058(2) (2010).

The statute is silent regarding coverage of employees who neither complete an application nor

decline coverage in writing. The regulations, 94-411 Chapter 601 (Eff. July 12, 1979) ("former

Rule 601 "),6 attempt to fill the gap by providing in part that "[GLI c]overage on any participant .

. . will cease at the end of the last period for which premiums are paid [to MPERS], subject to a

31-day grace period." Rule 601 (4)(A).7

As to reinstatement of previously waived GLI coverage, the legislature established two

debatably applicable provisions:

C. Any employee who does not want to be insured or who cancels insurance coverage may subsequently apply for insurance, but must produce evidence of insurability at the employee's own expense and in accordance with the requirements of the insurance underwriter.

D. Any employee who, during a period of unpaid military leave of absence, does not continue coverage while on unpaid military leave must be reinstated to the levels of coverage in effect immediately prior to the unpaid military leave. A request for reinstatement by the employee must be made within 31 days of the employee's return to work following unpaid military leave. An employee who wants to be reinstated and who does not apply for reinstatement within 31 days of the employee's return to work from unpaid military leave must produce evidence of insurability at the employee's own expense and in accordance with the requirements of the insurance underwriter.

5 M.R.S. §§ 18058(2)(C), 18058(2)(D) (2010). MPERS's regulations, however, explicitly

address the situation at hand:

Whenever it is determined by the Executive Director that, through an error by [MPERS] personnel or [employer] payroll personnel, deductions for insurance are not taken, the participant will be given the option to: 1. Pay back premiums from date of eligibility or date last premiums were taken;

694-411 Chapter 601 was repealed and replaced by a new Rule 601 effective January 20, 2008. MPERS analyzed the petitioner's appeal under the former rule because the petitioner was first notified of her eligibility in September 2006, and first sought GLI from MPERS by her communication of January 12, 2007. The petitioner has not contested MPERS's choice of rule. 7 The current version of Rule 601(4)(1) likewise provides, "Coverage on any participant ... will cease at the end of the last period for which premiums for that paI1icipant ... are paid to the Maine Public Employees Retirement System, subject to a 31-day grace period."

7 2. File evidence of insurability with coverage effective on the date approved by the insurance company from which the policy was purchased; or 3. Wait for open enrollment.

Rule 60 1(4)(C) (1979).8

II. The Petitioner's Automatic Eligibility for GLI and Its Expiration Or Lack Thereof

MPERS asserts that the statute's withholding of coverage to the new employee for one

month and one day exists to allow the employee time to either (1) complete the GLI application

and authorize premium deductions (without which the automatic coverage terminates after a

grace period of thirty-one days), or to (2) refuse the GLI coverage in writing. See 5 M.R.S.

§18058(1), (2). Because GLI coverage is a cost to the employee, and is optional, MPERS

explains, an employee must affirmatively apply for coverage and authorize their employer to

withhold premiums. If the premiums are not withheld and paid to MPERS, the GLI coverage is

not funded, and coverage terminates "by operation of law." (Br. ofResp. at 8.) MPERS thus

asserts that, since the petitioner never completed an application and authorized withholding of

premiums due to an error by her employer, School Unit 52, she did not fund GLI coverage and

her automatic coverage expired in 1995 at the conclusion of the thirty-one day grace period.

The petitioner appears to agree in part and disagree in part with this analysis. Her brief

recognizes that "continued membership [in GLI] was conditional upon the employer withholding

8 The current Rule 601(4)(4) provides: Whenever the Executive Director detennines that an employee lacks coverage or has a lapse in coverage due to error on the part of the employer or MainePERS, coverage may be implemented or reinstated as follows: A. Participant, or employer in the case of employer-paid premiums, pays back premiums from the date of eligibility or the date of last payment to the present; B. Participant files Evidence of Insurability with coverage effective on the first day of the month following one month of additional employment in an eligible position beyond the date approved by the insurer under contract with MainePERS. In the event that the insurer denies coverage based on Evidence of Insurability, the participant may restore coverage under the provisions of paragraph A.

8 and sending to [MPERS] the necessary premiums. Ch.601(6)(A). The employer, having failed

to do so, caused Ms. Goodrich's coverage to lapse. Ch.601(4)(A)." (Br. of Pet. at 7.) Despite

acknowledging the cancellation of coverage, the petitioner argues that MPERS is precluded from

denying her coverage because she became a de jure member of the GLI plan for "basic

insurance" and never waived that membership in writing, as required by 5 M.R.S. § 18058(2).

She contends that the legislature intended for her to automatically have "basic insurance," which

she would have but for the errors of both her employer and MPERS, errors that have deprived

her of that benefit. (Br. of Pet. at 3-4,8.) She asserts that the legislatively imposed obligation is

upon MPERS and the public employer to assure that the necessary premiums are deducted from

the pay of all teachers, just as the obligation is upon them to deduct contributions for the

Retirement program. (Id.) Just as retirement contributions are mandatory, GLI premiums are

"automatic," unless specifically declined by the member in writing. (Id.) She distinguishes

basic insurance, which is automatic and does not require evidence of insurability or an

application in order for coverage to apply, from supplemental or dependant insurance, which are

optional and may require evidence of insurabi1ity if they are not timely applied for. (Br. of Pet.

at 4-6.) The petitioner continues:

She became a de jure member of the [GLI] Program upon the first date of her employment in 1995. When the employer failed, however, to make deductions and contributions to [MPERS] for the insurance coverage, shortly after her beginning date in 1995, coverage was cancelled due to the nonpayment of premiums. Rule 94-411 Chapter 601(4)(A). Nevertheless, by the terms of the statute she was "automatically" enrolled in GLI upon the beginning of her employment and, the failure of her employer to withhold any pay premiums is not in any sense a written refusal of the employee.

(Br. of Pet. at 9.) The court, though unclear on the petitioner's assertion of her status as regards

coverage between the time of cancellation and the present, interprets the petitioner's argument as

9 relating to the second issue, her alleged 2006 refusal of coverage, rather than to her automatic

coverage beginning in 1995.

The court agrees with the parties regarding the status of the petitioner's insurance: the

petitioner's automatic GLI coverage began one month and one day after her first day of eligible

employment in 1995, and lapsed thirty-one days later, as no premiums were paid. Therefore, the

petitioner has not had GLI coverage at any point since 1995, and, since no premiums have been

paid at any time, does not currently have such coverage.

III. Refusal Pursuant to Rule 601

The petitioner contends that basic insurance, unlike optional supplemental or dependent

insurance, requires waiver in writing in order for it not to apply. The requirement of a written

waiver applies not only at the initial time of eligibility, she asserts, but rather at any time that the

employee learns of her entitlement to GLI, particularly where her earlier lack of knowledge was

not due to her own error, but rather that of her employer. Therefore, she asserts, since she never

waived basic GLI coverage in writing, but rather attempted to opt in after she was informed that

she was eligible for GLI (although she admits that her request for coverage was made "three

months too late"), MPERS is precluded from finding that she declined or refused coverage. (Br.

of Pet. at 8.) Since 5 M.R.S. § 18058(2) allows MPERS to require evidence of insurability only

in cases where the employee has waived or cancelled coverage, she continues, MPERS' s

decision requiring her to show evidence of insurability in order to qualify for GLI is

unenforceable and in violation of the statute. The petitioner supports her interpretation of the

statute by reference to Whitley v. Bd o.fTrustees, 2009 Me. Super. LEXIS 158, wherein the

Superior Court (Kennebec County, labar, 1.) held that an education technician to whom MPERS

denied GLI "was automatically insured, and because she never declined this enrollment through

10 written notice, [MPERS] must provide GLI-basic insurance-to her." Whitley, 2009 Me. Super.

LEXIS 158 at *9.

MPERS counters first by distinguishing Whitley on its facts, and then asserting that

Whitley does not offer this court any guidance because it represents an incorrect assessment of

the GLI statute. (Br. of Resp. at 8-9.) MPERS next asserts that "Rule 601 provides the only

means to restore the member to the same position she would have been in, had the premiums

been paid when first becoming eligible." (Br. ofResp. at 9.) It explains that retroactive

payments to the eligibility date attempt to mimic the circumstances when coverage was first

offered, that is, from when the employee was first hired and presumably was young and healthy,

so that MPERS has the benefit of the premium payments in before it is likely that the employee

would require a GLI payment out. (Id.) MPERS then explains that submitting evidence of

insurability likewise "demonstrates to the insurer that the employee is currently healthy and

death benefit payments are not immediately anticipated." (Br. of Resp. at 10). MPERS contends

that it provided the petitioner with the three options set forth in former Rule 601 in September

2006, and clearly stated that failure to respond within thirty days would be deemed a refusal of

GLI coverage. (Br. of Resp. at 10.) MPERS reads 5 M.R.S. §18058(2) to require written refusal

of GLI only at the time of initial eligibility. (See Br. of Resp. at 11.) Therefore, on October 19,

2006, thirty days after MPERS sent the letter, when the petitioner had not responded to the letter,

MPERS considered her silence to be a formal refusal or waiver of GLI coverage. MPERS

explains that its determination of a thirty-day response deadline is reasonable and sustainable

because it would be fiscally irresponsible to allow an employee unlimited time to decide whether

to opt in to GLI, and the Board found thirty days to be a reasonable time limit under the

circumstances, and it further notes that an agency need not enact rules to cover every decision it

11 makes, including determining deadlines necessary for effective administration of the retirement

system. (Br. of Resp. at 10.) Having determined that the petitioner refused coverage by her

silence, 5 M.R.S. §l8058(2)(C) provides that a person who has refused coverage "must produce

evidence of insurability at the employee's own expense and in accordance with the requirements

of the insurance underwriter" in order to apply for GLI. Since Aetna has declined the

petitioner's evidence of insurability, in light of her deemed refusal of coverage, she is statutorily

precluded from receiving GLI by any other method.

This disputed issue comes down to statutory interpretation: if the petitioner can refuse

coverage by thirty days' silence in 2006, then MPERS is correct, and the petitioner can only

obtain insurance by showing evidence of insurability. If the petitioner is correct and the statute

requires a written refusal of coverage in order for an employee to waive GLI, as the Superior

Court found in Whitley, then she should be eligible to pursue GLI coverage through the methods

provided in Rule 601. Nonetheless, even if the petitioner is correct and she is entitled to pursue

GLI, her entitlement to GLI is subject to the obligations set forth in the statute, regulations, and

contractual provisions. The court first turns to the analysis of the same statutory interpretation

issue in Whitley.

Judith Whitley [was] an Educational Technician II who work[ed] for School Union 52. When hired in 1995, she became eligible to participate in the MainePERS Retirement and Group Life Insurance ("GLI") Program. She was not informed about this availability until 1997. [Whitley] joined the System and automatically became insured under the GLI Program. She was required to file an application within 31 days, and she indicated she did so in March of 1997. On June 5, 1997, she filled out a Designation of Beneficiary Group Life Insurance Program form. The Board of Trustees' final decision states that [Whitley] submitted an emollment form for GLI, which was apparently never processed.... Ms. Whitley filed an GLI application in 1997.... It appears that the application was lost or not processed for some reason and Ms. Whitley was told at the time that there was no application on file. The Board found that by not taking any further action she ... effectively declined emollment.

12 ... On March 6, 1998, the System wrote [Whitley] a letter indicating that School Union 52 had been informed of its responsibility to make back contributions to the System without mentioning the GLI Program. On October 27, 2004, the System wrote [Whitley] a letter setting out three options in order for her to enroll for GLI: (1) pay back premiums from the date of eligibility, (2) file evidence of insurability, or (3) wait for open enrollment. The letter warned her that if she chose the "evidence of insurability" option but was denied, she could not then elect to pay back the premiums. Finally, the letter indicated that if she did not return an application by November 24, 2004, she would be considered to have refused coverage. [Whitley] never responded. In April of 2006, the System sent a form to [Whitley] indicating she was not eligible for GLI because she worked part-time. In October of 2006, [Whitley] was told by the System to fill out the GLI enrollment form and file evidence of insurability. She was denied coverage on the basis of her insurability due to several medical conditions. . . . . The Board's final decision concluded: Appellant is not eligible for GLI at this time because she did not enroll when initially offered the opportunity in 1997 and as an employee later seeking coverage, she has been denied coverage by the insurer after submitting evidence of insurability.

Whitley, 2009 Me. Super. LEXIS 158 at *1-*4 (some internal quotations omitted). While

Whitley's situation is factually distinguishable from Ms. Goodrich's in that Whitley filed an

application that MPERS lost,9 whereas Ms. Goodrich was unaware of her eligibility or need. to

file an application, the two petitioners were in similar positions after receiving notification from

MPERS and belatedly attempting to opt in to GLI coverage.

But Whitley's value is greater for its analysis of the statute than it is for the similarity of

the facts, so the court turns to the statutory analysis portion of the case.

5 MR.S. j3 18058(1) states that all employees are "automatically insured" for "basic insurance" and that each "employee shall complete an application for insurance coverage within 31 days of becoming eligible." Following this language, section I (C) states: "If an application is not completed within 31 days of the employee's first becoming eligible, the employee may subsequently apply for supplemental and dependent insurance but must produce evidence of insurability at the employee's own expense ...." Id. j3 18058(1)(C). The statute does not provide sanctions (i. e. , the required production of "evidence of

9 Another dissimilarity between the cases, but one which does not affect the court's statutory analysis, is that in Whitley's case, MPERS wrote to Whitley, indicating that Whitley's employer had been informed of its responsibility to make back contributions to MPERS.

13 insurability") in regard to basic insurance if the employee fails to complete the application within 31 days. It does provide that if the application is not completed within 31 days, then subsequently applying for "supplemental" and "dependent" insurance, requires evidence of insurability. Section 1(C) does not mention basic insurance. This can only mean that the employee is automatically covered with basic insurance but needs to request the additional coverage for "supplemental and dependent insurance." See, e.g., Musk v. Nelson, 647 A.2d 1198, 1201-02 (Me. 1994) ("[A] well-settled rule of statutory interpretation states that express mention of one concept implies the exclusion of others not listed."). Because basic insurance is automatically available to the employee, there is no need to provide for requirements for subsequent enrollment, unlike supplemental and dependent Insurance. Furthermore, 5 MR.S. j3 18058(2) provides a mechanism for "written notice" for any employee not wanting to be insured. This section of the statute affirmatively sets forth the requirement that if an employee wants to decline insurance, "written notice to the employee's employing officer and to the retirement system" must be given. 1d. j3 18058(2). This provision further demonstrates the nature of the "automatic" enrollment for basic insurance. There is simply no evidence indicating that petitioner declined the automatic coverage, and the System's assumption that petitioner was deemed to have declined it because she failed to fill out the application is not supported by the relevant statute. . .. Simply stated, the petitioner was automatically insured, and because she never declined this enrollment through written notice, the System must provide GLI-­ basic insurance--to her. The question regarding petitioner's obligation to pay for the premiums that were never collected is a concern beyond the present issue before the court, which is whether the Board erred in concluding that petitioner was not automatically insured pursuant to Maine law. Nevertheless, on remand the System should work with the petitioner and School Union 52 to determine how she is to pay for the coverage she should have had.

Whitley, 2009 Me. Super. LEXIS 158 at *6-*9 (footnote omitted).

While the court appreciates the Whitley court's analysis of the statute, and agrees that

justice mandates the result reached in that case, the court does not agree with the entirety of

Whitley's statutory interpretation. Reading Whitley's statutory analysis section on its own-

without the factual context underlying that case-would suggest that an employee could be

covered indefinitely without ever filling out an application for GLI or making a single premium

payment, as long as he or she had not declined GLI coverage in writing. If this were the case, no

14 employee would ever need to complete an application for GLI or make premium payments,1O yet

MPERS would be obligated to provide basic GLI to all employees without funding or

applications since they are automatically insured. See Whitley, 2009 Me. Super. LEXIS 158 at

*9. The court does not agree with this interpretation. The Whitley court's analysis of the statute

is properly considered in light of the fact that Whitley did indeed submit a proper and timely

application for GLI, such that denial of the efficacy of her coverage was inconsistent with the

statute. Whitley cannot be read to mean that any employee without application or payment is

automatically and indefinitely insured by MPERS for GLI.

The statute provides that employees are "automatically insured," but it does not provide

that the automatic coverage endures indefinitely without application or premium payments;

indeed, the same provision that supplies the automatic basic GLI coverage also provides, "Each

employee shall complete an application for insurance coverage within 31 days of becoming

eligible." 5 M.R.S. §18058(1) (emphasis added). The provisions of that statute establish that

supplemental and dependent insurances are contingent upon the timely filing of an application

for GLI, and that if the application is not timely filed, then those forms of insurance will require

evidence of insurability. The statute is silent as to the effect of an untimely application upon

basic insurance. MPERS regulations-specifically, Rule 601-determine the boundaries of

coverage in a way that is not inconsistent with the statute by providing that "[c]overage on any

participant ... will cease at the end of the last period for which premiums for that participant ...

are paid to [MPERS], subject to a 31-day grace period." Fmr. 94-411 Ch. 601(4)(A).

An agency's interpretation of a statute it administers, "although not conclusive on the

court, 'is entitled to great deference and will be upheld unless the statute plainly compels a

10 Indeed, the incentives against filing an application and authorizing premium payments would be very strong.

15 contrary result.'" Bischoffv. Me. State Ret. Sys., 661 A.2d 167,169 (Me. 1995) (quoting Abbott

v. Commissioner ofInland Fisheries & Wildlife, 623 A.2d 1273, 1275 (Me. 1993)). "[The Law

Court has] struck down Board rules when they directly conflict with express statutory language."

Baker v. s.D. Warren Co., 2010 ME 87, '15, 3 A.3d 380,384. Where, "however, there is no

direct conflict between the ... statute and the rule," and "the consequences of the new rule are

not in conflict with the statute," the court will defer to the Board. Id. at '15,3 A.3d at 385; see

also Jasch v. The Anchorage Inn, 2002 ME 106, '10, 799 A.2d 1216, 1218-19. Here, the

regulation gives effect to the language and intent of the statute-the legislature clearly intended

that employees should be automatically covered and should be entitled to basic GLI, and also

that they should complete an application for that coverage-while also fulfilling the legislature's

intent that MPERS remain solvent (cf 5 M.R.S. §18054 (2010) ("All expenses of a group life

insurance program shall be reimbursed from premium rate adjustments, dividends or interest

earnings on reserves"); 5 M.R.S. §18059 (2010) (authorizing MPERS's Board to set premiums

"on the basis determined by the board to be actuarially sufficient to pay anticipated claims")) by

setting limits upon GLI coverage for those employees who have not contributed premiums or

completed an application.

In light of this analysis, the provision of former Rule 601 limiting coverage to those

employees who have completed an application within thirty-one days of their first eligibility (as

required by 5 M.R.S. §18058(l)) and authorized the withholding of premium payments, plus a

thirty-one day grace period to ensure coverage of those employees who desire GLI but did not

act quickly enough, is sustainable and is not in direct conflict with the statute. It is

understandable and reasonable that MPERS would need to limit GLI coverage to those who

contribute premium payments to purchase that coverage and the peace of mind that accompanies

16 it. The court thus finds that the petitioner's interpretation of the statute as providing automatic

and eternal basic GLI, even in the absence of application or payments, is not sustainable.

The court next turns to the parties' arguments regarding the necessity of a written waiver

or refusal of GLI. MPERS suggests the requirement of a written waiver is limited to the period

of the employee's initial eligibility, such that an employee may waive or refuse coverage by

silence at any time subsequent to the time of initial eligibility; the petitioner, on the other hand,

contends that the requirement of a waiver in writing is unlimited and requires a written refusal at

any time before basic GLI may be denied. MPERS' s board below explicitly found "that 5

M.R.S. § 18058(2) requiring 'written notice' of refusal applies only when an employee 'first

becomes eligible' for GLI coverage and not thereafter." (R. 25.8.)

"When interpreting statutes, we 'seek to discern from the plain language the real purpose

of the legislation, avoiding results that are absurd, inconsistent, unreasonable, or illogical. '" Int'l

Paper Co. v. Bd. ofEnvt'l Prot., 629 A.2d 597,599-600 (Me. 1993) (quoting Mahaney v. State,

610 A.2d 738,741 (Me. 1992)). "When the dispute involves an agency's interpretation ofa

statute administered by it, as is the case here, the agency's interpretation, although not conclusive

on the court, is entitled to great deference and will be upheld unless the statute plainly compels a

contrary result." Id. at 600.

The provision at issue states: "Any employee not wanting to be insured under this

subchapter, at the time the employee first becomes eligible, shall, on the application form, give

written notice to the employee's employing officer and to the retirement system that the

employee does not want to be insured." 5 M.R.S. §18058(2). The statute goes on to provide, "If

after being insured, the employee wishes to cancel or reduce coverage, written notice must be

given by the employee to the employee's employing officer and to the retirement system." 5

17 M.R.S. §18058(2)(A) (2010). The statute thus covers two instances when an employee can and

must decline GLI coverage in writing: (1) "at the time the employee fIrst becomes eligible," and

(2) "after being insured." 5 M.R.S. §18058(2), 5 M.R.S. §18058(2)(A). The court notes that

coverage is automatic, and the regulations provide a thirty-one day grace period even for those

employees who have not completed applications or paid premiums, consistent with the

legislative intent that all eligible employees should automatically receive basic GLI coverage.

Therefore, one of the two situations provided for by statute always applies---either the employee

declines GLI during the window of initial eligibility, or the automatic basic coverage kicks in

and anytime thereafter, the employee is in the position of "after being insured." The statute thus

requires a clear written record of whether the employee has opted out of the GLI coverage, no

matter at what time that refusal occurs. The statute does not preclude MPERS from

discontinuing coverage based upon nonpayment of premiums or failure to submit an application;

the statute's requirements are directed to the employee, rather than to MPERS.

The Law Court has "held that in construing legislative acts, all parts thereof must be

taken into consideration to determine legislative intent." In! 'I Paper Co., 629 A.2d at 600-01

(quotation omitted). Adopting the Board's interpretation would effectively delete the entire

provision of 5 M.R.S. §18058(2)(A) from the statute. Such an interpretation is clearly in conflict

with the plain language of the statute. The court therefore reverses MPERS's board's

determination that waiver or refusal need only be in writing at the time of the employee's initial

eligibility. Under the plain language of the statute, the employee's waiver or refusal must be in

writing at any time during the initial window of eligibility pursuant to §18058(2), or thereafter

pursuant to §18058(2)(A).

18 This does not mean, as the petitioner contends, that she is therefore entitled to GLI

coverage because she did not waive or refuse it in writing. The court observes above that an

employee's coverage can lapse due to nonpayment of premiums without the employee taking

any affirmative action whatsoever, whether to actively accept or actively waive GLI coverage.

Although the coverage is automatic, as the petitioner points out, the court finds that it does not

continue indefinitely without action from the employee. A failure of coverage due to

nonpayment of premiums, however, is not equivalent to a refusal of coverage. As the court notes

above, the statute requiring written notice of refusal is binding upon the employee, rather than

MPERS, and if the employee wishes to decline or refuse coverage at any time, whether upon

initially becoming eligible or after being insured, he or she must do so in writing. According to

the requirements of the statute, if the employee does not decline or refuse coverage in writing

and notify the employing officer and MPERS, it does not constitute a refusal, although the

employee may endure a legitimate cancellation of GLI coverage due to nonpayment of premiums

or failure to file an application.

Applying this framework to the facts, the petitioner's silence upon being notified in 2006

of her eligibility for GLI could not have been a refusal. The statute dictates that a refusal must

be in writing and addressed to the employer and to MPERS. The petitioner may have allowed

her potential coverage to lapse after being notified of her eligibility in 2006, but she did not take

the affirmative steps required to refuse or cancel GLI coverage.

MPERS's determination that the petitioner cannot qualify for GLI is based upon a

determination that she refused coverage by her silence in response to the September 2006 letter,

which refusal would make 5 M.R.S. § 18058(2)(C) applicable to her. That provision states, "Any

employee who does not want to be insured or who cancels insurance coverage may subsequently

19 apply for insurance, but must produce evidence of insurability at the employee's own expense

and in accordance with the requirements of the insurance underwriter." Under the provisions of

5 M.R.S. §§ 18058(2) and l8058(2)(A), the court has determined that the petitioner is not an

employee who canceled coverage, since she did not refuse or cancel her coverage in writing; in

order for 5 M.R.S. § l8058(2)(C) to apply, therefore, the petitioner would have to be "[a]n

employee who does not want to be insured." The record is rife with indications, ranging from

the petitioner's counsel's letters to MPERS, to the many levels of internal administrative appeals

of her denial of GLI, to the present 80C appeal to this court from MPERS' s decision denying her

GLI, that the petitioner is at the opposite end of the spectrum from "[a]n employee who does not

want to be insured," and that indeed, she badly wants to be insured. Because she is neither an

"employee who does not want to be insured or who [has canceled] insurance coverage," 5

M.R.S. §18058(2)(C) does not apply to her.

There is no statutory provision, therefore, to address the petitioner's situation, that of an

employee who, through no fault of her own, lost coverage after her initial period of eligibility

due to error on the part of her employer. Though the statute does not specifically cover the

petitioner's circumstances, former Rule 601 contains provisions covering the situation where,

"through an error by [MPERS] personnel or [employer] payroll personnel, deductions for

insurance are not taken." Fmr. 94-411 Ch. 601 (4)(C) (1979). That regulation provided that the

petitioner could either (1) "Pay back premiums from date of eligibility or date last payments

were taken," that is, eleven years earlier; or (2) "File evidence of insurability with coverage

effective on the date approved by the insurance company from which the policy was purchased,"

as the parties agree that the third option, an open emollment period, was not anticipated. Fmr.

20 94-411 Ch. 601(4)(C)(1), (2) (1979). Ifit is enforceable, then, this provision provides the

exclusive method by which the petitioner may seek GLI coverage.

IV. Enforceability of the Pertinent Provisions of Rule 601

As noted above, "The standard of review for a challenge to the validity of a rule ... is

contained in 5 M.R.S.A. B 8058(1)." Conservation Law Found, 2003 ME 62, ~21, 823 A.2d at

559.

If the rule exceeds the rule-making authority of the agency, it is invalid. 5 MR.S.A. j3 8058(1). If a rule does not exceed the rule-making authority, the court next reviews "any other procedural error" related to the promulgation of the rule. Jd ... Finally, if the rule is procedurally correct and within the agency's rule­ making authority, it is reviewed substantively "to determine whether the rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Jd

Jd.

Whether the agency exceeded its statutory authority or violated other statutes in

promulgating its regulations is an issue of statutory interpretation. See id. at ~23, 823 A.2d at

559. "When a statute or statutory scheme is unambiguous, we ascertain the intent of the

Legislature from the plain language. When there is ambiguity, however, we defer to the

interpretation of a statutory scheme by the agency charged with its implementation as long as the

agency's construction is reasonable." Jd. (citation omitted). "A particular statute is not reviewed

in isolation but in the context of the statutory and regulatory scheme." Jd. "Furthermore, if the

Legislature's intent is not expressed unambiguously and the interpretation of the statutory

scheme involves issues that are within the scope of the agency's expertise, then the agency's

interpretation must be given special deference." Jd.

MPERS's board has general rule-making authority pursuant to 5 M.R.S. §18053, which

provides, "The board may promulgate and publish, in accordance with chapter 375, subchapter

21 II, whatever rules are necessary and proper to give effect to the intent, purposes and provisions of

this subchapter." 5 M.R.S. §18053 (2010). The subchapter whose intent, purposes and

provisions are to be effectuated by the board's rules and regulations is Chapter 423, State

Employees and Teachers, subchapter 6, Group Life Insurance (5 M.R.S. §§18051-18061).

Chapter 375, subchapter II, governing the promulgation and publishing of the board's rules and

regulations, consists of the rulemaking provisions of the Maine Administrative Procedure Act (5

M.R.S. §§8051-8064).

The petitioner's arguments that MPERS exceeded its authority by requiring payment of

back premiums or evidence of insurability are in fact substantive challenges to the rule. The

petitioner has not alleged that the rulemaking procedure underlying former Rule 601 was flawed,

or the subject matter was beyond the agency's statutory authority.

Because the rule has not been shown to be procedurally incorrect or outside of the

agency's rule-making authority, the court will review the regulation substantively to determine

whether the rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance

with law. Conservation Law Found, 2003 ME 62, 121,823 A.2d at 559.

The petitioner has long insisted that the requirement of payment of back premiums was

neither equitable nor enforceable. (See, e.g., R. 1.28 (1/12/07 Request for Basic and/or

Additional Insurance Coverage Requiring Evidence of Insurability, marked, "I want insurance

but do not want to make back payments"); R. 1.20 (2/6/08 Letter from Attorney Fontaine to

Lynn Pease, stating, "I do not think this is legally permitted. [The petitioner] was not offered an

opportunity to purchase the insurance in 1995 when she became an Educational Technician II,

nor would the payment of all the back premiums up to today be equitable, since it would not

provide her any coverage for the years that the premiums cover"); R. 10.12 (3/27/09 testimony

22 before the hearing officer that the petitioner "did not feel it was [her] responsibility to pay back

the premiums for something that [she] never received," and "it wasn't [her] fault that [she] didn't

have the insurance")). What the petitioner and her counsel have consistently requested, and

urged that the statute requires, is "to treat Ms. Goodrich now as though she were a new employee

entitled for the first time to coverage." (R. 15.3, 4/28/09 Br. of Pet. to MPERS.) The court

accordingly turns to the allegations that the board's actions in implementing and applying former

Rule 601 11 are contrary to the provisions of the statutes providing state employees and teachers

with GU.

A "regulation cannot stand if it is not in accord with the underlying statute. Insofar as

rules promulgated by subordinate authority tend to contravene the provisions of controlling law,

such rules and regulations are of no effect and will be promptly declared invalid." Cent. Me.

Power Co. v. Pub. Uti!. Comm 'n, 458 A.2d 739, 741 (Me. 1983) (quotation and ellipsis omitted).

Likewise, although deference is due the interpretation of a statute by the agency charged with its administration, such deference "must yield to the fundamental approach of determining the legislative intent, particularly as it is manifest in the language of the statute itself. This intent, once revealed, prevails."

Jd. (quoting Cent. Me. Power Co. v. Me. Pub. Uti!. Comm'n, Me., 436 A.2d 880,885 (1981))

(ellipsis omitted).

The legislature has clearly stated its intent regarding the broad purposes underlying

MPERS's existence:

It is the intent of the Legislature to encourage qualified persons to seek public employment and to continue in public employment during their productive years. It is further the intent of the Legislature to assist these persons in making provision for their retirement years by establishing benefits reasonably related to their highest earnings and years of service and by providing suitable disability and death benefits.

II Although MPERS's board applied former Rule 601 to the petitioner, the analysis of whether former Rule 601 is contrary to law applies to current Rule 601(4)(4) as well, since the opposed requirements of payment of back premiums or evidence of insurability are present in the current version as well.

23 5 M.R.S. §17050 (2010). As to the availability of GLI, the legislative intent has likewise been

expressed. "Life insurance and accidental death and dismemberment insurance, referred to as

"basic insurance," must be available to all eligible participants." 5 M.R.S. §18056 (2010); see

also 5 M.R.S. §18055 (2010). "All employees eligible for basic insurance under this subchapter

are automatically insured for the amounts of basic coverage applicable under this subchapter,

beginning on the first day of the month following one month of employment after the employee

becomes eligible." 5 M.R.S. §18058(l) (2010). Although supplemental and dependent

insurance may require evidence of insurability under 5 M.R.S. §18058(l)(C) if an employee's

GLI application is untimely, that requirement is not statutorily imposed upon the "basic

insurance" which applies to the employee "automatically."

The legislature has thus clearly expressed its intent to provide death and disability

benefits to state workers, and specifically, to ensure that GLI is available to all participants who

are "eligible" on the basis of their employment without requiring any evidence of insurability,

and that such coverage is automatic.

MPERS asserts, "Section 18058(2) does not address the situation where a newly eligible

employee is not offered the timely opportunity to apply, or when an employee wishes GLI

coverage many years after first eligibility. However, Rule 601 was adopted to address this very

situation." (Br. of Resp. at 11.) It explains,

Rule 601 provides the only means to restore the member to the same position she would have been in, had the premiums been paid when first becoming eligible. The same position, with respect to [the option to pay back premiums], necessarily means that the member pays the premiums retroactively to her eligibility date. This payback of historical payments attempts to mimic the circumstances when the automatic coverage was first offered.

(Br. of Resp. at 9.) MPERS then adds a footnote:

24 Typically, when a new employee first become[s] eligible, that employee is young and healthy, which is one reason why no evidence of insurability is required. As the employee ages, health concerns may occur, but the insurer has had the benefit of the past premiums paid, before expenditures on behalf of the employee are required.

(Br. of Resp. at 9 n. 7.) 12

Although the regulation purports to fill a blank left by the statute, the court finds and

rules that the requirement of back premium payments, as applied to an employee who learns

years after her initial eligibility for GLI that she is eligible for such coverage, is contrary to the

legislature's intent and is therefore unenforceable. This finding is based first upon the language

of the statute that is applicable to a person in the petitioner's position, and second upon the sole

instance in 5 M.R.S. §18058 where the legislature specifically provided for the fate of an

employee who discontinues coverage due to nonpayment of premiums, but who is not an

employee who has cancelled or refused coverage.

The court notes first that the legislature expressly established that basic GLI would

necessarily and automatically be available to all public employees in the petitioner's position,

and that the employee's written refusal of this coverage was required to be provided to both

MPERS and the public employer. 5 M.R.S. §18058(2); cf 5 M.R.S. §17054-A (2010)

(establishing the responsibilities of public employers and MPERS as to employees' election of

retirement mem,bership status, and as to the records of such election). Automatic initial GLI

coverage is not inconsistent with the court's finding above that such coverage will lapse if

premiums are not tendered, but it is inconsistent with a requirement that an employee pay eleven

years' worth of premiums for a benefit that she did not receive before being considered eligible

12 The court notes that this justification is potentially at odds with another portion of former Rule 601, which provides, "An employee who has refused [GLI] coverage and who separates from employment and is subsequently reemployed is considered to be eligible as though this were his initial employment and is not required to file evidence of eligibility," as long as certain provisions (primarily regarding bona fide separation and rehiring) were met. Fmr.94-4ll Ch. 601 (3 )CD).

25 for GLI coverage. The legislative intent of automatic employee GLI coverage and eligibility is

not compatible with MPERS's regulatory requirement of payment of back premiums for years

when the petitioner did not have GLI. 13

The most compelling evidence, however, that the legislature's intent is incompatible with

the regulation is set forth 5 M.R.S. § 18058(2)(D), where the legislature, rather than leave the

specifics of coverage to the agency as they did in most other cases,14 affirmatively provided what

it wished to happen in a specific type of case where an employee allows his or her coverage to

lapse during a period of absence, and then returns and wishes to resume coverage. That

provision states in full:

Any employee who, during a period of unpaid military leave of absence, does not continue coverage while on unpaid military leave must be reinstated to the levels of coverage in effect immediately prior to the unpaid military leave. A request for reinstatement by the employee must be made within 31 days of the employee's return to work following unpaid military leave. An employee who wants to be reinstated and who does not apply for reinstatement within 31 days of the employee's return to work from unpaid military leave must produce evidence of insurability at the employee's own expense and in accordance with the requirements of the insurance underwriter.

5 M.R.S. § 18058(2)(D) (2010). Thus, in the instance where the legislature actively dictated the

result of a temporary loss of coverage due to an omission of premium payments while on

military leave and thus away from eligible employment, it provided that coverage could be

resumed, without payment of back premiums or evidence of insurability, within a thirty-one day

period of the employee's return to work. Although the legislature did not provide specifically for

the petitioner's situation, where the public employer's omission resulted in a failure of premium

payments and a resultant lack of coverage, the legislature has covered the situations it envisioned

13 The court is skeptical of the rationale MPERS advances in support of the back premium requirement, but declines to evaluate the regulation's reasonableness in light of the court's finding that the regulation is contrary to law. 14 Cf 5 M.R.S. §18055(4) (requiring retirees who return to coverage-eligible employment to bear the cost ofthe new coverage, and requiring that MPERS establish a method for such payments).

26 in the following ways: upon beginning work, the employee has thirty-one days to decide whether

to accept the automatic basic GLI coverage and fill out an application authorizing deductions (5

M.R.S. §18058(1))/5 or to waive the coverage and the deductions, which refusal must be in

writing and sent to the employer and MPERS (5 M.R.S §18058(2)). It covers reinsurance of

those who have previously refused coverage by mandating evidence of insurability (5 M.R.S.

§18058(2)(C)), and, as the court just noted, it requires reinstatement of a returning veteran whose

GLI payments and coverage had lapsed during service at the same level the employee had

enjoyed prior to military service, without payment of premium for the time lapsed l6 (5 M.R.S.

§l8058(2)(D)). In the case of both the new hire and the returning veteran, no payment of back

premiums or evidence of insurability is required. The court finds and rules that the regulation

requiring payment of eleven years' worth of back premiums before providing prospective

coverage to an employee who had not known that GLI coverage was available to her, and who

was denied coverage due to her employer's error, is inconsistent with the legislative intent. The

legislative "intent, once revealed, prevails," and the regulation inconsistent with this intent

cannot stand. Cent. Me. Power Co., 458 A.2d at 741 (Me. 1983) (quotation omitted); compare

with Baker, 2010 ME 87, ~15, 3 A.3d at 385 (affirming a board regulation where "the

consequences of the new rule are not in conflict with the statute").

The choice MPERS offered the petitioner in its September 2006 letter notifying her of her

eligibility for GLI coverage was therefore unenforceable as inconsistent with the legislature's

intent. The court finds, in light of its analysis of the legislature's intent in 5 M.R.S. §18058, that

15 And an untimely application will result in a requirement of evidence of insurability as to supplemental or dependent insurance (5 M.R.S. § 18058(1)(C), but not basic insurance, which continues without premium payments into a thirty-one day grace period before lapsing (94-411 Ch. 60 I(4 )(A) (1979); 94­ 411 Ch. 601(4)(1) (2008». 16 Or the risks to long-term health incurred during combat, counter to the "young and healthy employee" rationale MPERS advanced to support the necessity of back premium payments for reinstatement of an employee whose lapsed payments were due to an error on the part of MPERS or the public employer.

27 the petitioner should have been treated like a new hire (or a returning veteran), and offered

thirty-one days to decide whether to accept the automatic coverage and authorize deductions to

pay for her prospective coverage (including the option to opt into supplemental and dependent

coverage without evidence of insurability, as new hires are provided under 5 M.R.S. §18056(2)

and (3)), followed by a thirty-one day grace period during which she could "rescue" her basic

coverage, if not her supplemental and dependent coverage, by making the premium payments

and tendering her application. The distinction between an option to join GLI as a new member l7

and an option to join upon payment of back premiums cannot be overstated. In the present case,

the petitioner was clear that her delay in responding to the notification of her eligibility was due

to her reluctance to pay eleven years' worth of back premiums.

Because the option offered to the petitioner in the September 2006 letter was inconsistent

with the statutory scheme, the court reverses the ruling of MPERS's board. The court notes that

it is unusual for MPERS to be the entity that alerts an employee to the availability of GLI, as the

statute contemplates that the public employer will have this task, as well as the task of

withholding payment for premiums. However, as MPERS was the entity to originally notify the

petitioner, and as MPERS is the party to the 80C appeal, it seems appropriate that MPERS

should be the entity to inform the petitioner of her right, consistent with the court's findings of

legislative intent, to GLI coverage upon payment of prospective premiums, and should supply

her with the necessary forms and applications. The petitioner should also ensure that her

employer receives the necessary forms and applications to complete the withholding and the

correspondence with MPERS contemplated by the statute and the regulation.

17 The court understands that the petitioner may wish to have the option of purchasing years of past GLI coverage for the purpose of retirement. (See Br. of Pet. at 11-12.) The court does not rule on that issue, and the question of the petitioner's ability to purchase coverage for those years when she was eligible but not covered is to be settled between her and MPERS in the first instance.

28 The entry will be:

The decision of the MPERS board of trustees denying Ms. Goodrich GLI coverage is

REVERSED. The matter is REMANDED to the board for proceedings consistent with this

order.

This order may be noted on the docket by reference pursuant to Rule 79(a) of the Maine

Rules of Civil Procedure.

') LI1//I DATE ~d=- SUPERIOR COURT JUSTICE

29 f Date Filed 3/4/10 Kennebec Docket No. AP-10-11 County

Action Petition For Review 80C J. Murphy

Ellen M. Goodrich Board of Trustees, ME Public Employees vs. Retirement System Plaintiff's Attorney Defendant's Attorney

Donald F. Fontaine, Esq. Christopher L. Mann, AAG PO Box 7590 6 State House Station Portland, ME 04112-7590 Augusta, ME 04333-0006

Date of Entry

3/5/10 Petition, filed. s/Fontaine, Esq. (filed 3/4/10)

3/5/10 Letter entering appearance, filed. s/Mann, AAG 3/31/ 10 Certified Administrative Record, filed. s/Poland, Appeals Clerk NOTICE AND BRIEFING SCHEDULE ISSUED Copies mailed to attys. of record. 4/14/10 Motion to Require or Permit Corrections to the Record and Incorporated Memorandum of Law, :£1led.; s/Fontaine, ,Esq. Proposed ORder, filed. 4/28/10 Motion in Response to Modifying the Certified Record, filed. s/Mann, Esq.

5/5/10 Petitioner's response to Respondent's Motion in Response to Modify the Certified Record, filed. s/Fontaine, Esq.

5/7 /10 MOTION IN RESPONSE, Marden, J. Improper Title in Motion. Try Response. Copies to attys. of record. ORDER TO SUPPLEMENT THE RECORD, Marden, J. Motion Denied. Oral argument is not evidence if decision is not supported by the evidence. The court will--­ 5/10/10 Consented to Motion for the Enlargement of Time to File Opponent's Brief, filed. s/Fontaine, Esq. Proposed Order, filed.

5/10/10 ORDER, Marden, J. The Court having reviewed the petitioner's Motion for Enlargement of Time, and having noted that there is no opposition thereto, it is hereby ORDERED that petitioner's appeal brief shall be due May 24, 2010. Copies to attys. of record. Date of Entry Docket No.

5/21/10 Brief on Appellant Ellen M. Goodrich, filed. s/Fontaine, Esq. 6/21/10 Opposition to Petitioner's 80C Petition, filed. s/Mann, AAG 7/7/10 Petitioner's Reply Brief, filed. s/Fontaine, Esq.

Notice of settIng tOf-. .1- L~L 1,D._,.~......_ ....._•. sent to ~ttol'neys of recorcf: ,.. .

9/22/10 Letter filed by Atty Fontaine regarding hearing on 9/9/10. (filed 9/14/10)

3/17/11 ORDER ON APPEAL OF ADMINISTRATIVE ACTION PURSUANT TO RULE 80C, Murphy, J. The decision of the MPERS board of trustees denying Ms. Goodrich GLI coverage is REVERSED. The matter is REMANDED to the board for proceedings consistent with this order. This order may be noted on the docket by reference pursuant to Rule 79(a) of the Maine Rules of Civil Procedure. Copy to Atty Fontaine and AAG Mann.

3/17/11 Notice of removal of exhibits and/or record mailed to attorneys.