Petition of Randall Burns et al.

C. Petitioners Failed to Meet Their Burden Of Proving That They Were Without “Any Fault” For The Payment of Early Retirement Stipends More Than 120 Days After Their Termination From Employment.............................................................................. 22 D. The Board Properly Found That The Evidence Presented By Petitioners Did Not Support Their Claim Of Fraud Against The Keene School District................. 23 E. This Court Should Reject Petitioners’ Additional Arguments Alleging That Petitioners Did Not Consent to The Delayed Start Of Their EFRB Stipend Payments.................................. 30 CONCLUSION..................................................................................... 33 CERTIFICATE OF SERVICE.............................................................. 33 TABLE OF AUTHORITIES Cases................................................................................................ Page Appeal of Pelleteri, 152 N.H. 809, (2005)........................................... 30 Keene Sch. Dist. v. Keene Education Assoc., 174 N.H. (2022).......................................................................... 10, 12, 14 Petition of Bailey, 146 N.H. 197 (2001)................................................ 15 In re Barney, 142 N.H. 798 (1998)...................................................... 32 In re Concord Teachers, 158 N.H. 529 (2009)....................... 7, 18, 19, 33 In re Eskeland, 166 N.H. 554 (2014).................................................... 32 In re Farmington Teachers, 158 N.H. 453 (2009)............................. 8, 15 In re LaFasciano, 175 N.H. 518 (2022)................................................ 16 McKenzie v. Town of Eaton Zoning Bd. of Adj., 154 N.H. 773 (2007)............................................................................ 32 Petition of Chase Home for Children, 155 N.H. 528 (2007)............................................................................ 19 Studwell v. Travelers Ins. Co., 121 N.H. 1090 (1981)......................................................... 21, 23, 27, 29 Wilko of Nashua, Inc. v. Tap Realty, Inc., 117 N.H. 843 (1977)...... …26 Statutes........................................................................................... Page RSA 100-A:1, XVII...................................................................... passim RSA 100-A:2............................................................................................ 7, 10 RSA 100-A:5, I................................................................................... 5, 8 RSA 100-A:14........................................................................................ 7, 28 RSA 100 A:16......................................................................................... 8 QUESTIONS PRESENTED I. Whether the New Hampshire Retirement System Board of Trustees reasonably determined that Petitioners had failed to meet their burden of proving that they had not consented, within the meaning of RSA 100-A:1, XVII, to the payment of early retirement stipends more than 120 days after their termination from employment where their employer had informed them, in advance, of the start date of the stipend payments and Petitioners waited from five to ten years before objecting to the timing of the payments. II. Whether the New Hampshire Retirement System Board of Trustees reasonably determined that Petitioners had failed to meet their burden of proving that they were without “any fault”, within the meaning of RSA 100-A:1, XVII, for the payment of early retirement stipends more than 120 days after their termination from employment where their employer had informed them, in advance, of the start date of the stipend payments and Petitioners waited from five to ten years before objecting to the timing of the payments.

STATEMENT OF THE CASE Petitioners are eight retired Group I Teacher members of the New Hampshire Retirement System (“NHRS”) who are requesting the NHRS Board of Trustees to undo a decision by their employer, the Keene School District (“School District”), to delay the payment of certain collectively bargained early retirement stipends until more than 120 days after Petitioners’ employment termination dates. Petitioners could have resolved this public employer/employee dispute at the time of their retirement by filing a grievance under their collective bargaining agreement or by bringing an unfair labor practice claim with the Public Employees Labor Relations Board. See RSA 273-A:4, 6. However, Petitioners and their union, took no action at the time Petitioners terminated employment, retired and began receiving their bi-weekly early retirement stipends along with their monthly NHRS retirement allowance. Instead, from five to as many as ten years later, Petitioners filed Petitions for Contribution and Earnable Compensation Adjustment with NHRS seeking to be granted exceptions to the “120-day rule” set forth in the statutory definition of “earnable compensation”. See RSA 100-A:1, XVII, Ret 304. The granting of such an exception would have allowed a limited portion of each Petitioner’s early retirement stipend payments to qualify as “earnable compensation” for purposes of recalculating each Petitioner’s NHRS retirement allowance. See RSA 100-A:1, XVII, RSA 100-A:5, I (b).

On May 1, 2020, two of the eight Petitioners, Lisa Abohatab and Susan Meehan, were parties to a “Petition For Contribution and Earnable Compensation Adjustment” filed on their behalf with NHRS by their union, NEA-NH. Certified Record (“CR”) 1-5. The subject of the Petition was the early retirement stipends that their employer, the Keene School District, began paying them in November 2015, more than 120 days after Abohatab’s and Meehan’s July 1, 2015 termination dates and retirements. Id. As explained in the Petition, Abohatab and Meehan had not been included as parties to a 2019 grievance timely filed by NHRS retiree Randall Burns regarding this issue but “testimony from the [School] District during the arbitration revealed that more retirees were impacted by [the School District’s] withholding of contributions” than the union was aware of at the time the Burns grievance was filed. CR 3. As a result, despite not having properly pursued a remedy under the CBA, Abohatab and Meehan were included as petitioners in the Petition for Contribution and Earnable Compensation Adjustment that the union filed on Burns’ behalf after his grievance was upheld by an April 14, 2020 arbitration decision.1 On June 3, 2020, the School District moved to intervene and objected to the Burns Petition and at a June 4, 2020 Prehearing Conference, the NHRS Hearings Examiner, with the agreement of Petitioners and NHRS Staff, allowed the School District’s intervention. The parties also 1 As Randall Burns was granted all of the relief that he was seeking from the Board, he is not a party to this appeal. agreed at the prehearing conference to allow a second group of retired Keene School District teachers to join the litigation. As such, on June 5, 2020, the union filed an “Amendment to Petition for Contribution and Earnable Compensation Adjustment” which added Appellant Suzanne Sharron as a party.2 CR 40-42. Sharron, whose employment termination date was July 1, 2012, had also not been a party to the Burns Grievance and had been retired eight years before objecting to the timing of the School District’s early retirement stipend payments. Id. On March 24, 2022, the parties agreed to a temporary stay of the NHRS adjudicative hearing process pending the completion of the School District’s appeal of the April 14, 2020 arbitration decision on the Burns grievance. CR 164. At that time, a third group of five former Keene School District teachers, who had been retired for from five to ten years and had also not filed a grievance regarding the timing of their stipend payments, sought to join the proceeding. As such, on March 24, 2022, Petitioners John Ohlson (termination date July 1, 2016), Beth Corwin (termination date July 1, 2017), Erika Greenwald (termination date July 1, 2012), Patricia Morris (termination date July 1, 2015) and Michelle Stitham (termination date July 1, 2015) jointly filed a “Petition for Contribution and Earnable Compensation Adjustment” which, by agreement of the parties, was consolidated with the pending “Amended Petition for Contribution and Earnable Compensation Adjustment”. CR 181-185. 2 Eight other retired School District teachers were also parties to the amended petition but none of them filed appeals of the Board’s decision.

After expiration of the temporary stay and the Petitioners’ submission of affidavits and a joint fact stipulation with the School District, the consolidated Petitions were the subject of a non-evidentiary hearing held before an NHRS Hearings Examiner on November 29, 2022. On March 14, 2023, the Hearings Examiner issued a Recommendation to the Board of Trustees to deny the Petitioners’ requests for earnable compensation credit “because they failed to meet [their] burden to show they met an asserted exception to the 120-day post-termination payment requirement.” CR 224. The Recommendation was approved by the Board that same day (CR 217) and Petitioners then filed a timely Motion for Reconsideration. On July 11, 2023, the Board issued its decision denying Petitioners’ Motion for Reconsideration (CR 393-99), after which, this appeal followed. STATEMENT OF FACTS The Parties Petitioners are eight retired Group I Teacher members of the New Hampshire Retirement System who each elected to receive a collectively bargained “Early Full Retirement Benefit” (EFRB) stipend from their former employer, the Keene School District. After becoming aware of the successful outcome of grievances brought by fellow retired School District teachers Randall Burns and R. Scott Hyde, the eight Petitioners on appeal filed a combined three Petitions for Contribution and Earnable Compensation Adjustments with NHRS from 2020 through 2022. CR 1-18, 40-42, 181-83.

The New Hampshire Retirement System was established pursuant to RSA 100-A:2 to serve as a qualified pension trust for state and local government employees. The system is funded by member and employer contributions and administered by the Respondent NHRS Board of Trustees. RSA 100-A:16, RSA 100-A:14. The members of the Board of Trustees are the trustees of the System’s funds and the Board is authorized to establish such rules and regulations as it deems necessary for the proper administration of RSA 100-A. Id Pursuant to RSA 100-A:1, XVII and Ret 304 the Board is authorized to rule on petitions for contribution and earnable compensation adjustments to member retirement records. See also, RSA 100-A:27 (authorizing the Board to correct errors in member retirement records). In so doing, “the Board has an important interest in properly administering RSA 100-A and faithfully discharging its fiduciary duties in the interest of all participants and beneficiaries.” In re Concord Teachers, 158 N.H. 529, 539 (2009) (citations omitted). Calculation of Retirement Allowance NHRS is a “defined benefit plan” in which one of the benefits each eligible retiree receives is a fixed annual retirement allowance. See, e.g. RSA 100-A:5, I (Group I service retirement). “The dollar amount of a retired member’s service retirement allowance is tied to his or her ‘average final compensation’.” Petition of Farmington Teachers Association, 158 N.H. 453, 455 (2009). “A member’s ‘average final compensation’ is equal to the ‘average earnable compensation’ in the member’s three highest earning years of NHRS creditable service.” Id., RSA 100-A:1, XVIII (defining “average earnable compensation”); see RSA 100-A:1, XVII (defining “earnable compensation”). A member’s service retirement allowance is calculated by taking a statutorily specified percentage, based on the member’s years of creditable service, and applying that to the member’s average final compensation. RSA 100-A:5, I (b).3 The Early Retirement Stipend Each of the eight Petitioners applied for and was accepted into the School District’s “Early Full Retirement Benefit” (“EFRB”) program which, since at least 1995, had been collectively bargained by the Keene School District and the Keene Education Association an NEA-NH affiliate. CR 2. Pursuant to the terms of Sections 14.1 and 14.3 of the CBA, in return for their agreement to terminate their employment and retire effective July 1st of the current school year, each of the Petitioners received an annual cash stipend that was equal to as much as 40% of the individual’s average annual salary and was paid on a per pay period basis. Although the focus of this litigation is on the 120-day period after Petitioners’ July 1 termination dates, Petitioners continued to receive bi-weekly EFRB stipend payments from the School District for a period of up to seven years after their termination from employment. CR 6-7. From 1995 through 2011, the School District made the first EFRB stipend payment in the first pay period of the school year following a teacher’s July 1st retirement, usually in late August or early September. 3 For example, Teacher members of NHRS who retire after a 30-year career would receive an annual service retirement allowance of 30/60 or one half of their average final compensation. RSA 100-A:5, I (b).

CR 398. Until the change to the statutory definition of earnable compensation4 effective January 1, 2012, the School District was under the mistaken impression that the stipend payments did not qualify as earnable compensation. CR 12. As a result, from 2001 through 2011 the School District assumed, incorrectly, that it was not required to pay employer contributions or deduct member contributions on the stipend payments. Id. In addition, from the start of the EFRB program through 2011, no early retiree Teacher filed a grievance objecting to the timing of the stipend payments or contacted NHRS to determine whether the payments qualified as earnable compensation. CR 398. Post-120 Day Stipend Payments Beginning in 2012, the School District moved the first EFRB stipend payment for newly retired teachers to the a date more than 120 days from the termination of the teacher’s employment. CR 398. In conjunction with this change, when a teacher was approved for participation in the EFRB program, the School District informed the teacher in writing, that the first stipend payment would be made as part of the School District’s first payroll in November and that no NHRS contributions would be made on the payments. CR 398-99. As found by both the arbitrator and the NHRS Hearings Examiner, 4 As all of the Petitioners were vested members of NHRS as of January 1, 2012, they are not subject to the revised definition of earnable compensation which expressly provides that, for members who do not meet the January 1, 2012 vesting requirement, early retirement incentive payments no longer qualify as earnable compensation. See RSA 100-A:1, XVII. the relevant portion of the School District’s EFRB approval letter stated as follows: The first year you are retired, the District will pay your annual stipend amount in equal, bi-weekly payments starting with the first pay period in November...through June 30.... This is so you and the Board [of Education] do not incur additional [NHRS] wage deductions from your stipend. CR 399. The eight Petitioners terminated their employment with the School District and retired between the years 2012 through 2017. CR 41, 181. From 2012 through 2018, forty-three teachers took an EFRB retirement and no teacher, including none of the Petitioners, objected to the November payment schedule or asked NHRS whether a November payment date could affect the calculation of their retirement benefits. CR 399, Keene School District v. Keene Education Association, NEA-NH, 174 N.H. 796, 800 (2022) The Grievances In the Fall of 2018, School District teachers Randall Burns and R. Scott Hyde each applied for the EFRB. CR 11. By letters dated December 12, 2018, the School District informed them both that they had been approved for the EFRB, that their termination date would be July 1, 2019 and that the first of their bi-weekly stipend payments would be made as part of the first payroll of November 2019. Id. Sometime after receiving the approval letter, Hyde contacted NHRS and was told that NHRS regulations do not require an employer to withhold early retirement stipends for 120 days. Id. Thereafter, on March 12, 2019, Hyde wrote to the School District questioning the delay in the first stipend payment and stating that he could not find support for it in the CBA. Id. On April 29, 2019, after Hyde received an unsatisfactory response to his inquiry, Burns and Hyde filed identical grievances with the School District asserting that the delayed payment violated the terms of the CBA. The remedy requested by Burns and Hyde was that the School District make the first of their bi-weekly stipend payments as of July 1, 2019 and that it also make all required contribution payments to NHRS. CR 12. On April 14, 2020, an arbitrator sustained the grievances filed by Burns and Hyde and concluded as follows: The School District violated the Agreement, Article 14, by paying the Grievants their early retirement benefit beginning on November 1, 2019. The remedy is that the Grievants may pursue their statutorily entitled retirement benefits with the New Hampshire Retirement System.5 Petitions for Contribution and Earnable Compensation Adjustment On May 1, 2020, Burns and seven other retired Keene School District teachers filed the Petition for Contribution and Earnable Compensation Adjustment that commenced this adjudicative proceeding, 5 The arbitrator acknowledged in his decision that he had no authority to order an NHRS-related remedy, yet he did make clear his view that, if possible, Hyde and Burns should be “made whole”. CR 17-18. Although not bound by the arbitrator’s suggested remedy, because Hyde and Burns did not consent to the delayed payment of their stipends and, instead, filed a timely grievance successfully contesting the delay, the Board of Trustees determined that they met the requirements for the severance pay exception to the 120-day rule and granted their Petitions For Contribution and Earnable Compensation Adjustment. with Hyde, a union member, filing his own, essentially identical, Petition on May 25, 2020. CR 22-24. On June 3, 2020, the School District moved to intervene and to dismiss the Burns Petition as to all Petitioners except Burns. CR 28-29 In the Fall of 2020, NHRS Staff requested the production of School District EFRB payroll records for all of the School District retirees seeking contribution and earnable compensation adjustments under Ret 304. See CR 43. In response, the School District produced payroll records dating back to 2005 that established the dates and amounts of the EFRB stipend payments that were made within 120 days of termination without paying NHRS contributions. CR 424. On the basis of these payroll records, in January 2021, NHRS Staff issued Notices of Contribution and Earnable Compensation Adjustments to the School District and nine Teacher retirees who received EFRB payments prior to 2012. CR 73-81. Because these stipend payments were made within 120 days of termination, the payments qualified under the statutory definition of earnable compensation and the issues of consent and fault that apply to Petitioners were inapplicable to these nine Teacher retirees.6 See RSA 100-A:1, XVII. In March 2021, by agreement of the parties, the Burns and Hyde Petitions were consolidated and then stayed by the Hearings Examiner 6 These nine individuals are referred to in the Board decision as “Group 2” of the four factually distinct groups making up the total of twenty-eight Keene School District retirees who that sought contribution and earnable compensation adjustments pursuant to Ret 304. Despite being granted contribution and earnable compensation adjustments by NHRS Staff, these nine retirees filed appeals in March 2021 seeking to have from one to two months of additional stipend payments included as earnable compensation. CR 83-136. pending the outcome of the School District’s appeal of the arbitrator’s decision of April 14, 2020. CR 164. On February 8, 2022, the arbitrator’s decision was upheld by this Court, after which the stay of the Burns/Hyde Petitions was lifted by the Hearings Examiner. CR 262-68; CR 179; see Keene School District v. Keene Education Association, NEA-NH, 174 N.H. 796 (2022). On March 24, 2022, Appellants Ohlson, Corwin, Greenwald, Morris and Stitham then filed their Petition for Contribution and Earnable Compensation Adjustment (CR 181-83). On April 8, 2022, the School District objected, asserting the same defenses that it raised in response to the Petitions previously filed by Appellants Abohatab, Meehan and Sharron, namely that: 1) Petitioners were informed of and consented to the November stipend payment start date; 2) The Petitions were “untimely” within the meaning of Ret 304.03 (a); 3) The Petitions exceeded the three-year post- retirement filing deadline of Ret 304.03 (c); 7 and 4)The arbitrator’s decision of April 14, 2020 applied only to the named Grievants, Petitioners Burns and Hyde. CR 187-88, CR 25-38, CR 186-90. 7 As noted in the Board’s March 14, 2023 Decision: Until January 9, 2019, the relevant portion of…[Ret 304] required that a petition be filed within three years of the discovery of the alleged error by the member or within three years of the member’s retirement whichever is earlier. CR 222, n. 7, see Ret 304.03 (c) (repealed January 9, 2019), Ret 304.03 (a) (substituting the requirement that adjustment petitions filed by members under Ret 304 be “timely”). On this basis, the Board concluded that “theoretically the ability of these Petitioners to raise [their claims under Ret 304] was extinguished by operation of the [three-year rule] rule but, because the School District withdrew its “statute of limitations” objection under In the Fall of 2022, Petitioners submitted a Joint Stipulation of Fact and a series of essentially identical, self-serving individual affidavits and stipulations, but they elected to not present any of the Petitioners or School District personnel as witnesses. See CR 240-58, 311-63. As the parties had stipulated to all relevant facts, a non-evidentiary hearing on the merits of the pending Ret 304 petitions was held on November 29, 2022, after which the record was left open until January 27, 2023 for submissions from the parties. On January 27, 2023, the School District, “in accordance with a settlement agreement reached with the KEA”, formally withdrew its objections to all of the Ret 304 adjustment petitions, including Petitioners’, but did so with the following disclaimer: The [School] District continues to deny any and all claims of wrongdoing or fraud made against it. The [School] District reserves the right to object to any and all future petitions for contribution and earnable compensation adjustments, on any and all grounds, as well as to object to any future petitions to intervene in [this] matter CR 210. On March 14, 2023, the Board approved the Hearing Examiner’s Recommendation to deny the Petitioners Ret 304 contribution and earnable compensation adjustment requests on two grounds: 1) failure to meet their burden of showing that they did not consent to the November stipend payment start date and 2) failure to meet their burden of showing that they Ret 304.03 (c) (T. 39-40) following its settlement agreement with the complete group of twenty-eight Ret 304 petitioners, the Board ultimately did not rule on the issue. were without “any fault” regarding the November stipend payment start date. CR 223-24. In so doing, the Board noted that: Considering the actual notice provided by the [School] District and the lack of action by the…Petitioners, including their delay in filing for relief, [the Hearings Examiner and the Board are] not persuaded that the Petitioners met their burden to show that they met an asserted exception to the 120-day post-termination payment requirement. CR 223. Petitioners moved for reconsideration of the Boad’s ruling on the merits and, in its decision denying the motion, the Board elaborated on its analysis of Petitioners’ claims of fraud and lack of consent, stating as follows as to the fraud issue: The [approval] letter provided by the [School] District to the…Petitioners…informed the Petitioners of the delay in timing…of the EFRB payments, and that by delaying the payments neither the [School] District nor the Petitioners would be required to make NHRS contributions on the payments. The statement that the delay would result in no contributions being made on the payments was in fact a true statement and not a misrepresentation or a lie. CR 398. The Board then addressed Petitioners’ argument that their consent was not informed because they were misled about the consequences of the delay, stating: [Petitioners] maintain that because the [School] District knew it was saving money by not making contributions on the payments, then logically, the [School] District knew the teachers' pensions would be lower as a result and it did not convey this information to the teachers. The [Hearings Examiner and the Board are] not persuaded the District was in any better position than the retiring teachers to understand the potential consequences on any individual teacher's pension of delaying payments until after the 120-day deadline…. Consequently, …Petitioners' arguments that their consent was not valid because it was obtained by fraud, untruthful representations, and/or lies, is not persuasive because there was no evidence of either an untruthful representation or lie. CR 399. Following the Board’s denial of reconsideration, Petitioners filed their certiorari petition with this Court. SUMMARY OF THE ARGUMENT The NHRS Board of Trustees correctly determined that the early retirement stipend payments received by Petitioners more than 120 days after the termination of their employment did not meet the statutory definition of earnable compensation. RSA 100-A:1, XVII, establishes the bright line rule that “earnable compensation shall not include compensation in any form paid later than 120 days after the member's termination of employment from a retirement eligible position.” RSA 100-A:1, XVII. The one relevant statutory exception to the “120-day rule” applies to “severance pay which a member was entitled to be paid within 120 days after termination but which, without the consent of the member and not through any fault of the member, was paid more than 120 days after the member's termination.” RSA 100-A:1, XVII (emphasis added). Petitioners, who retired between the years of 2012 and 2017, all terminated their employment on July 1st but did not receive the first of their EFRB stipend payments until the first payroll in the following November, and thereby exceeded the 120-day earnable compensation time limit. A review of the administrative record, however, demonstrates that Petitioners have failed to meet their burden of proving that they satisfy both the “no consent” and “no fault” requirements of the limited statutory exception to the 120-day rule. Petitioners, who all retired between the years of 2012 and 2017, were each provided with written notice in December of the School District’s intent to start their EFRB stipend payments as of the first payroll period in November. As none of the eight Petitioners objected to the School District’s payment schedule, they each retired on the following July 1st and did not receive their first EFRB stipend payment until November, after the expiration of the 120-day earnable compensation time limit. In 2018, Randall Burns and R. Scott Hyde were approved for participation in the EFRB program and scheduled to terminate their employment and retire as of July 1, 2019. Both individuals received the standard approval letter informing them of the November payment schedule and both of them objected to the delay. Moreover, when the School District refused to start the payments as of July 1st instead of November 1st, Burns and Hyde filed a labor grievance challenging the payment schedule as a violation of their CBA with the School District. Burns’ and Hyde’s grievances were ultimately upheld by an arbitrator’s decision and they subsequently filed timely Petitions for Contribution and Earnable Compensation Adjustment with the NHRS which Petitioners joined, despite having not contested their delayed stipend payments payments for a period from five to ten years. The second statutory prerequisite for the Board to grant an exception to the 120-day rule is that the payment of severance pay beyond 120 days from termination must be “not through any fault of the member.” RSA 100-A:1, XVII (emphasis added). Here, the fact that Petitioners could have objected at the time of their retirement and prevented the delay in the payment is established by the actions of their fellow EFRB recipients, Burns and Hyde. Instead, Petitioners waited from five to ten years after their retirement before joining in the earnable compensation adjustment petition filed by Randall Burns. Under these circumstances, the Board correctly determined that Petitioners did not meet their burden of proving either of the two statutory prerequisites. Petitioners were informed of the payment schedule and consented to the School District’s plan and, by not objecting they also were not without “any fault” in contributing to the 120-day delay of the stipend payments. As a result, because Petitioners did not meet the two requirements for qualifying for an exception to the 120-day rule, the Board properly denied their Petitions for Contribution and Earnable Compensation Adjustments. Petitioners’ sole argument to the contrary is their assertion that the School District fraudulently induced them to agree to the delayed payment proposal and that, as a result, they could not, as a matter of law, have consented to the proposal and were not at fault for the delay. The only purported evidence produced by Petitioners in support of their fraud claim, however, is two sentences from the annual EFRB approval letter sent by the School District to each participant in the EFRB program. The letter provides, in pertinent part, as follows: The first year you are retired, the [School] District will pay your annual stipend amount in equal, bi-weekly payments starting with the first pay period in November...through June 30.... This is so you and the Board [of Education] do not incur additional [NHRS] wage deductions from your stipend. CR 394. The Hearings Examiner carefully reviewed the above language and the Board approved the reasonable conclusion that: The letter…informed the…Petitioners of the delay in timing for the EFRB payments and that by delaying the payments neither the [School] District nor the Petitioners would be required to make NHRS contributions on the payments. The statement that the delay would result in no contributions being made on the payments was a true statement and not a misrepresentation or a lie. CR 398. Accordingly, as the Board disagreed with the Petitioners’ interpretation of the letter as fraudulent and accepted the Hearings Examiner’s assessment instead, the Board reasonably ruled that there was “no evidence” of fraud and concluded that Petitioners had consented to the payments and were at fault for not objecting to the School District’s delayed stipend payment start date, filing a grievance or contacting NHRS to determine whether there could be an impact on their retirement benefits.

In actuality, the School District’s annual approval letter, rather than being “fraudulent”, put the Petitioners on notice to inquire whether the delayed stipend payments and the lack of additional NHRS deductions would impact the calculation of their monthly retirement allowance. The record is clear, however, that none of the Petitioners made any such inquiries and, instead, failed to object to the School District’s November start date of the stipend payments until from five to ten years after their termination from employment. Had Petitioners, like Burns and Hyde, taken action to file a timely grievance of their own on this issue, they would almost certainly have had their Petitions for Earnable Compensation Adjustment granted by the Board and would not be before this Court at this time. Under these circumstances, the Board properly exercised their discretion and correctly denied Petitioners’ requests for contribution and earnable compensation adjustments. As such, this Court should dismiss Petitioners’ appeal. ARGUMENT I. STANDARD OF REVIEW Decisions of the NHRS Board of Trustees are reviewed by this Court through a writ of certiorari. In Re Concord Teachers, 158 N.H. 529, 533 (2009). The scope of judicial review is narrow and deferential with the Court’s jurisdiction being limited to determining “whether the Board acted illegally with respect to jurisdiction, authority or observance of the law, whereby it arrived at a conclusion which cannot legally or reasonably be made, or abused its discretion or acted arbitrarily, unreasonably, or capriciously.” Petition of Farmington Teachers, 158 N.H. 453, 455 (2009) quoting Petition of Bailey, 146 N.H. 197, 198 (2001). The Trustees’ findings of fact are considered “prima facie lawful and reasonable” and Petitioners’ burden is to demonstrate that the Trustees’ decision “is clearly unreasonable or unlawful.” Petition of Concord Teachers, 158 N.H. 529, 533 (2009) quoting RSA 541:13. In addition, the Court “exercise[s] [its]power to grant such writs sparingly and only where to do otherwise would result in substantial injustice.” In re Lafasciano, 175 N.H. 518, 520 (2022) quoting Petition of Chase Home for Children, 155 N.H. 528, 532 (2007). II. THE NHRS BOARD OF TRUSTEES CORRECTLY DETERMINED THAT THE EARLY RETIREMENT STIPEND PAYMENTS RECEIVED BY PETITIONERS MORE THAN 120 DAYS AFTER THE TERMINATION OF THEIR EMPLOYMENT DID NOT MEET THE STATUTORY DEFINITION OF EARNABLE COMPENSATION A. Petitioners Have The Burden of Proving That They Meet Both The “No Consent” and “No Fault” Requirements Of The Severance Pay Exception To The “120-Day Rule” RSA 100-A:1, XVII, establishes the bright line rule that “earnable compensation shall not include compensation in any form paid later than 120 days after the member's termination of employment from a retirement eligible position.” RSA 100-A:1, XVII (defining “earnable compensation”). The Legislature has provided only two limited exceptions to what, in NHRS vernacular, is known as the “120-day rule”. Id. One exception involves disability-related severance pay and is inapplicable to Petitioners’ appeal. The second limited exception applies to “severance pay which a member was entitled to be paid within 120 days after termination but which, without the consent of the member and not through any fault of the member, was paid more than 120 days after the member's termination.” RSA 100-A:1, XVII (emphasis added). In addition, the statute further mandates that NHRS members seeking to be granted an exception to the 120-day rule “shall have the burden of proving to the Board of Trustees” that they meet both of these requirements. Id. There is no dispute that the EFRB stipend payments received by Petitioners in the first year of their retirement qualify as “severance pay” for earnable compensation purposes but were paid more than 120 days after Petitioners’ employment termination date. CR 221. In addition, the April 14, 2020 Arbitrator’s Decision establishes that these bi-weekly payments were required under the Keene School District CBA to begin as of Petitioners’ July 1st employment termination dates instead of being delayed until after November 1st. CR 11-12. The NHRS Board of Trustees correctly determined, however, that, as Petitioners failed to meet their burden of proof on the issues of “consent” and “fault”, the EFRB stipend payments did not “meet the requirements of an asserted exception to the 120-day post-termination payment requirement” as mandated by RSA 100-A:1, XVII. CR 408. Under these factual circumstances, the Board properly found that Petitioners’ EFRB stipend payments did not qualify as earnable compensation.

B. Petitioners Failed To Meet Their Burden Of Proving That They Had Not Consented To The Payment Of Early Retirement Stipends More Than 120 Days After Termination From Employment In its Decision in this matter, the Board approved the following finding of the Hearings Examiner: These Petitioners received no stipend payments during the 120-day post-termination period and they were informed in writing by the [School] District that it intended to delay making payments until after the 120-day period to avoid the payment of NHRS contributions by the District and the Petitioners. CR 407. Although the post-November 1st payment plan was apparently wholly the School District’s idea, given the information provided in the School District’s annual December EFRB approval letters (see CR 313) and the acquiescence of all EFRB participants until Burns and Hyde challenged the practice in 2019, the Board concluded that the Petitioners were all made aware of the plan in advance and did not object to the School District or file a grievance. CR 407. Further, Petitioners also did not take the relatively simple step of asking NHRS whether there was any prohibition against the School District making the payments before November 1st or whether delaying the payments until after November 1st could have any effect on the calculation of their NHRS retirement benefit. Id. Instead, Petitioners knowingly accepted the November stipend payments without paying NHRS contributions and waited from five to ten years after their termination from employment before joining in the Petition for Contribution and Earnable Compensation Adjustment that Burns had initiated on a more timely basis. On the basis of these facts, the Board was clearly within its discretion to conclude that “there is no reasonable interpretation that the payments made after 120 days were not ‘without the consent of the Member’.” Id., quoting RSA 100-A:1, XVII. C. Petitioners Failed to Meet Their Burden of Proving That They Were Without “Any Fault” For The Payment of Early Retirement Stipends More Than 120 Days After Their Termination From Employment The second statutory prerequisite for the Board to grant an exception to the 120-day rule is that the payment of severance pay beyond 120 days from termination must be “not through any fault of the member.” RSA 100-A:1, XVII (emphasis added). Here, the fact that Petitioners could have objected to and prevented the delay in stipend payments is established by the actions of their fellow EFRB recipients, Burns and Hyde. When Hyde received his EFRB approval letter in December 2018, he took reasonable steps to try to change the proposed November stipend start date. First, he notified the School District of his objection to the 120-day delay in the stipend payments and then contacted NHRS to determine what the effect would be on his NHRS retirement benefit. CR 13. Burns apparently also contacted NHRS and, subsequently, he and Hyde formalized their objection to the payment delay by filing essentially identical grievances against the School District. CR 12-13.

The Burns and Hyde Grievances resulted in an arbitrator’s finding of a CBA violation that was affirmed by the New Hampshire Supreme Court. CR 18, see Keene School District v. Keene Education Association, NEA-NH 174 N.H. 796 (2022). As a result of Burns’ and Hyde’s express refusal to acquiesce to the School District’s proposal to delay the stipend payment start date and their timely filing of a successful grievance, the Board of Trustees was able to find that they each “were entitled to severance payments within…120-days post termination that they did not receive without their consent and not through any fault”. CR 408. As such, the Board granted their separate Petitions for Contribution and Earnable Compensation Adjustment “based on a finding that they proved that they met an exception to the 120-day post-termination payment requirement.” CR 409. As the Board reasoned in its Decision on the merits of Petitioners’ claims, the actions of Burns and Hyde “clearly establish that the…Petitioners did have the ability to challenge the payment date so any argument by the Petitioners that they were unable to do so is without merit”. CR 408. Having the ability to challenge the payment date but failing to do so is clearly inconsistent with the “not through any fault of the member” standard imposed by RSA 100-A:1, XVII. As a result, after also “considering the actual notice provided by the [School] District and the lack of action by the…Petitioners”, the Board properly concluded that Petitioners had failed to meet their burden of proving that they met the requirements of the limited severance pay exception to the 120-day rule. CR 223.

D. The Board Properly Found That The Evidence Presented By Petitioners Did Not Support Their Claim Of Fraud Against The Keene School District E. The Board Properly Denied Petitioners’ Claim Of Fraud Against The School District Petitioners’ argument on appeal effectively hinges on proving their unfounded claim that, between 2012 and 2018, as yet unspecified School District personnel8 committed fraud9 against the Petitioners. From there, Petitioners also incorrectly assert that this “fact” alone overrides the plain language of RSA 100-A:1, XVII and requires the Board to grant their Petitions for Contribution and Earnable Compensation Adjustment. Petitioners’ argument, however, is directly contradicted by the actual facts of this case, as found by the Hearings Examiner, the Board’s designated fact finder in adjudicative proceedings under Ret 204. See Ret 204.01(c), 204.10 (b). In particular, the Board approved the following specific factual finding on the issue of fraud: Petitioners’ argument that their consent was not valid because it was obtained by fraud, untruthful representations and/or lies is unpersuasive because there is no evidence of either an untruthful representation or a lie. CR 399. 8 Petitioners have not yet specifically identified the individual or individuals who they claim acted fraudulently. 9 Petitioners also assert a misrepresentation claim, in the alternative, but as the Board applied the same factual analysis in determining that there was no fraud or misrepresentation by the School District, for simplicity purposes the two claims will be addressed in this Brief under the term “fraud”.

The only purported evidence produced by Petitioners in support of their fraud claim, however, is two sentences from the EFRB approval letter sent by the School District to each participant in the EFRB program. The letter provides, in pertinent part, as follows: The first year you are retired, the District will pay your annual stipend amount in equal, bi-weekly payments starting with the first pay period in November...through June 30.... This is so you and the Board [of Education] do not incur additional [NHRS] wage deductions from your stipend. CR 11 (Arbitrator Decision), CR 394 (Board Decision).10 The Hearings Examiner carefully reviewed the above language and the Board approved the reasonable conclusion that: The letter…informed the…Petitioners of the delay in timing for the EFRB payments and that by delaying the payments neither the [School] District nor the Petitioners would be required to make 10 Petitioners assert in their brief that a general reference to the parties collective bargaining agreement in the annual approval letter was an additional allegedly fraudulent act by the School District to induce the Petitioners to accept the delayed EFRB stipend payments. Brief at 8. That particular argument, however, was not made before the Hearings Examiner or the Board and as such cannot be raised on appeal. Reynolds v. Cunningham, Warden, 131 N.H. 312 (1988). If the Court were to consider Petitioners’ new argument it should be rejected as the language that is claimed to be fraudulent is as follows: “Please remember that your early retirement will be subject to the terms and conditions specified in Article XIV of the agreement between the KEA and the Keene Board of Education.” CR 313. That rather inocuous request is actually an accurate statement and, as a result, not fraudulent. See Studwell v. Travelers Ins. Co., 121 N.H. 1090 (1981) (requiring clear and convincing evidence to prove fraud).

NHRS contributions on the payments. The statement that the delay would result in no contributions being made on the payments was a true statement and not a misrepresentation or a lie. CR 398. Accordingly, as the Board disagreed with the Petitioners’ interpretation of the letter as fraudulent and accepted the Hearings Examiner’s assessment instead, the Board reasonably ruled that there was “no evidence” of fraud. In addition, the other evidence submitted into the record by the Petitioners was insufficient to change the Board’s interpretation of the two sentences of the EFRB approval letter at issue in this appeal. For example, the record includes essentially identical, self-serving affidavits from each Petitioner with conclusory statements about the alleged intent of the School District but with no explanation regarding the basis of the Petitioners’ conclusions. CR 311-363. Also included, were essentially identical fact stipulations regarding each Petitioner which provided financial information regarding the EFRB payments but contained no reference to the School District’s allegedly fraudulent letter or its alleged fraudulent intent. CR 243-258. Additionally, the Petitioners and the School District submitted a more general “Joint Stipulated Facts”, but that document also did not address the issue of the alleged fraud by the School District. 11 CR 240-42. 11 To the extent Petitioners rely on the School District’s conclusory stipulation that the 120-day stipend payment delay was not the fault of the Petitioners (CR 241), as stated in the Board’s Reconsideration Decision, “a determination of whether an individual's circumstances meet [an] asserted exception to the 120-day post-termination period, Additionally, after the parties had reached a settlement agreement which required the School District to withdraw its longstanding objections to all of the pending Petitions for Contribution and Earnable Compensation Adjustment, the School District, post-hearing, submitted a “Withdrawal of Objection to Petition” that directly challenged the fraud claims of the Petitioners. CR 210. In that document, the School District clarified for the Board that, notwithstanding its waiver of its objections to the consolidated petitions, the School District “continues to deny any and all charges of wrongdoing or fraud made against it.” Id. The School District’s post-hearing statement, in addition to denying all allegations of fraud, also made clear that the School District reserved “the right to object to any and all future petitions for contribution and earnable compensation adjustments, on any and all grounds.” Id. 12 Under the foregoing circumstances, the burden of proof remained on the Petitioners to prove their allegations of fraud “by clear and convincing evidence.” See Studwell v. Travelers Ins. Co., 121 N.H. 1090. Petitioners, however, failed to submit any direct evidence of fraud or even any witness testimony on the state of mind or alleged fraudulent intent of School District personnel. Indeed, none of the pleadings filed by Petitioners even including whether the delay was not their fault, is a conclusion of law reserved for the Board. CR 398, n.7, see RSA 100-A:1, XVII. 12 Petitioners erroneously assert in their Brief that, in its Decision, the Board “held that fraud and misrepresentation cannot be found unless an admission of such is explicitly made.” Brief at 28. In reality, the Board did not make any such ruling and, instead, merely noted that the School District had not stipulated to fraud or other misconduct because Petitioners had asserted in their Motion for Reconsideration that their fraud claim against the School District was undisputed. CR 398 identified a specific individual who they allege had the necessary knowledge and intent to commit fraud. The closest Petitioners came to doing so was the following statement from their Joint Brief: It can safely be assumed that the HR Director who authored the letter knew enough about the NHRS pension calculation equation to know this scheme was not advantageous to the employees. CR 306 (emphasis added). Technically, although the record is clear that essentially identical EFRB approval letters were signed each year by the School District’s Director of Human Resources, there was no evidence presented as to who authored them. Although the original EFRB approval letter was apparently authored in December 2011 and was signed by Director of Human Resources Paul Cooper (CR 330), Petitioners have also submitted no evidence regarding Cooper’s qualifications or knowledge of the NHRS pension calculation process or his intent in sending the original 2011 letter. EFRB records indicate that, over the following eight years, the School District had at least two other Human Resources Directors, Timothy L. Ruehr and Nancy C. Deutsch13 (CR 313, 352) yet the record is silent on their qualifications and NHRS pension knowledge as well. Regardless, a mere “assumption”, is clearly insufficient evidence to prove fraud. See Studwell v. Travelers Ins. Co., 121 N.H. 1090 (1981) (recognizing that fraud must be shown “by clear and convincing proof”) 13 The EFRB records show that Deutsch signed at least the approval letters sent to Abohatab and Meehan. CR 313, 333. quoting Wilko of Nashua, Inc. v. Tap Realty, Inc., 117 N.H. 843, 849 (1977). Indeed, a close review of the arbitrator’s decision yields a significant piece of evidence that has not been addressed by Petitioners. As found by the arbitrator, School District Human Resources Generalist Samantha Fletcher responded to Hyde’s inquiry about the proposed delayed start date for EFRB stipend payments as follows: She had been in contact with NHRS and quoted [to Hyde]…RSA 100-A:1 that ‘Earnable compensation shall not include compensation in any form paid later than 120 days after the member's termination of employment from a retirement eligible position’. CR 11-12. This excerpt demonstrates that, contrary to Petitioners’ claims of fraud and bad faith by the School District, Human Resources Generalist Fletcher consulted with NHRS on Hyde’s inquiry and accurately relayed to him a correct statement of the 120-day rule. Shortly after receiving this information from Fletcher, Hyde filed his grievance requesting that his EFRB stipend payments start on July 1st rather than be delayed until November 1st. It is also significant that, upon review of the same operative facts as the present case, neither the arbitrator nor the Superior Court nor this Court made any reference to any conduct by the School District that rose to the level of fraud or bad faith. The likely explanation for this is that the legal issue to be resolved was one of interpretation of the Petitioners’ CBA and the School District, in its defense, raised a number of credible, though ultimately unsuccessful, legal arguments in support of its view that the stipend payments were not required to start on July 1st.14 In addition, if there was actual evidence to support such serious allegations, the PELRB, not the NHRS, would be the appropriate forum to litigate an unfair labor practice charge of this nature. 15 See RSA 273-A:5, I (a) (making it an unfair labor practice for a public employer “to restrain, coerce or otherwise interfere with its employees in the exercise of the rights conferred by [RSA 273-A]”), RSA 273-A:5, I (e) (requiring a public employer “to negotiate in good faith” with its employees’ union), RSA 273-A: 6 (conferring primary jurisdiction on the PELRB over “all violations of RSA 273-A:5”). Accordingly, given the School District’s blanket denial of fraud, the Petitioners’ unsupported “assumption” that the School District’s Human Resources Director had both the knowledge and the intent necessary to commit fraud, the Arbitrator’s finding that a School District Human Resources Generalist had expressly provided Hyde with an accurate statement of the 120-day rule and the Hearing Examiner’s finding that Petitioners’ fraud argument is based on a misinterpretation of the meaning and intent of the School district’s EFRB approval letter, it was well within 14 The School District’s legal arguments in support of its November stipend start date included: that the revised definition of earnable compensation excluded early retirement payments, that Section 14.4 of the CBA specifically prohibited the payment of benefits related to the stipend payments and that the parties had an established past practice of starting the stipend payments 60 to 120 days after July 1st. CR 15-17. 15 It is noteworthy that the Legislature, in contrast to the limited adjudicative authority provided to the NHRS, has provided the PELRB with the tools necessary to litigate such issues including subpoena power and the authority to issue cease and desist orders. Compare RSA 273-A:6, III, IV with RSA 100-A:14. the Board’s discretion to approve the conclusion that there was “no evidence of a misrepresentation or a lie” and reject Petitioners’ fraud defense on that basis. 16 CR 398. In actuality, the School District’s annual approval letter, rather than being “fraudulent”, put the Petitioners on notice to inquire whether the delayed stipend payments and the lack of additional NHRS deductions would impact the calculation of their monthly retirement allowance. The record is clear, however, that none of the Petitioners made any such inquiries and, instead, failed to object to the School District’s delayed start date of the stipend payments until from five to ten years after their termination from employment. Had Petitioners taken action to file a timely grievance of their own on this issue, they would almost certainly have had their Petitions for Earnable Compensation Adjustment granted by the Board and would not be before this Court at this time. E. The Court Should Reject Petitioners’ Arguments Alleging That Petitioners Did Not Consent to The Delayed Start Of Their EFRB Stipend Payments The first argument submitted in Petitioners' brief is the claim that “consent is not possible because the Petitioners cannot waive [the] terms of a CBA”. Brief at 12. Although questionable on its merits, the Court should decline to consider this argument because Petitioners did not raise it at any 16 Contrary to the Petitioner’s argument in their Joint Brief, by rejecting Petitioners’ fraud claim the Board is not “absolving” the School District of anything. Petitioners simply failed to present the “clear and convincing” evidence needed to prove their claims of fraud against the School District. See Studwell v. Travelers Ins. Co., 121 N.H. 1090 (1981). time during the pendency of this NHRS adjudicative proceeding. “It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial.” Reynolds v. Cunningham, Warden, 131 N.H. 312 (1988). As such, Petitioners bear the burden of demonstrating that they raised their “impossibility of consent” argument before the Hearings Examiner or the NHRS Board of Trustees. See id. Although, Petitioners have consistently argued that, under the facts of this case, Petitioners did not consent to the 120-plus day delay in the commencement of the EFRB stipend payments, that argument was based on Petitioners’ claim that “informed consent” could not be provided due to allegedly fraudulent misrepresentations by the School District. CR 293-310. Petitioners never argued to the Hearings Examiner or the Board on reconsideration, that consent was somehow impossible for purposes of RSA 100-A:1, XVII because RSA 273-A:5 prevents the School District from requiring Petitioners to waive a term of their CBA. As a review of Petitioners’ pleadings and the transcript of the oral argument before the Hearings Examiner makes clear that Petitioners failed to raise their “impossibility of consent” argument before the Hearings Examiner and the Board, the issue has not been preserved for review by this Court. McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773 (2007), see Appeal of Pelleteri (N.H. Dep't of Emp't Sec.), 152 N.H. 809, 811-12 (2005) (where this Court explained that “[i]ssues must be raised at the earliest possible time in order to grant trial forums a full opportunity to come to sound conclusions and to correct claimed errors in the first instance").

In addition, even if the Court were to consider Petitioners’ “impossibility of consent” argument, it should be rejected as it is an erroneous attempt, made without any supporting authority, to apply a statutory collective bargaining requirement wholly outside the context of collective bargaining. Petitioners’ Brief at 13. Although Petitioners and the KEA may have had a claim under RSA 273-A:5 for an unfair labor practice against the School District, that is a matter the legislature left to the jurisdiction of the PELRB and has no relevance to or effect on this NHRS adjudicative proceeding. See RSA 273-A:6 (granting the PELRB “primary jurisdiction” over unfair labor practice claims brought pursuant to RSA 273-A:5). Petitioners also assert that they can’t be found to have consented to the 120-day delay in receipt of stipend payments because they weren’t adequately informed of the financial consequences of the delay. However, as the Board’s Decision notes, School District employees “do not have the expertise to provide advice on the effect of the delay on an individual teacher’s pension”. CR 223. Moreover, it is well established that NHRS members have no right to receive retirement counseling from NHRS without first making a request for information. In re Barney, 142 N.H. 798, 802 (1998), In re Eskeland, 166 N.H. 554, 561-62 (2014). And the record is clear that Petitioners, unlike Burns and Hyde, did not contact NHRS to discuss this potential issue in advance of their retirement. CR 223. Under these circumstances, Petitioners lack of understanding of the consequences of the delay does not undo their decision to not contest the November stipend payment start date. See In re Barney, 142 N.H. at 802 (former member of NHRS cannot rescind decision to withdraw NHRS contributions), In re Eskeland, 166 N.H. at 561-62 (NHRS retiree who did not raise the issue of disability retirement with NHRS is bound by his decision to apply for service retirement instead of disability retirement.). Finally, Petitioners’ additional argument, that Petitioners’ consent to the delay is void because it was obtained by fraud, is similarly meritless as it ignores two central facts. First, the fraudulent conduct that Petitioners allege involves the actions of the School District, not the New Hampshire Retirement System and, as such, the legal sanctions for such conduct, if proven, would be applicable to the School District, not to the NHRS. Secondly, the Board approved the Hearing Examiner’s express finding that “the statement [in the December approval letter sent by the School District to each of the Petitioners] that the delay would result in no contributions being made on the payments was a true statement and not a misrepresentation or a lie.” CR 398. Under these circumstances, any legal arguments made by Petitioners that are based on their unfounded claim of fraud against the School District are without merit because they are directly contrary to the facts of this case as reasonably found by the Hearings Examiner and the Board. CONCLUSION For the foregoing reasons, Petitioners have failed to meet their appellate burden of establishing that the Board of Trustees’ March 14, 2023 decision to deny their Petition for Contribution and Earnable Compensation Adjustment (as supplemented by the Board’s order denying reconsideration) is “clearly unreasonable or unlawful.” See In re Concord Teachers, 158 N.H. 529, 533 (2009). Accordingly, Petitioners’ appeal should be dismissed. Respectfully submitted, New Hampshire Retirement System Board of Trustees By their attorney, March 29, 2024 /s/ Peter T. Foley Peter T. Foley, Esq. N.H. Bar #828 Foley Law Office P.O. Box 2753 Concord, NH 03302-2753 (603) 303-8176 foleypt@comcast.net CERTIFICATION I certify that a copy of the foregoing Brief will be electronically delivered this day to counsel for the Petitioners and for the Intervenor School District. /s/ Peter T. Foley