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September 28. 2012 12:41AM

NH retirees sue over part-time hours cap

CONCORD — Three retired police officers and a retired firefighter are suing the New Hampshire Retirement System, claiming they should be exempt from new laws limiting their part-time employment.

In the lawsuit filed Aug. 29 in Merrimack County Superior Court, the four said legislative changes made in 2011 and 2012 governing retirees' part-time employment with retirement system employers are unconstitutional because they are retroactive laws forbidden under Article 23 of the state constitution.

They claim they retired prior to the changes, so they should be allowed to continue to work unlimited hours — as long as it is not a full-time position with a retirement system member. The suit says the changes “restrict their ability to work and provide for their families.”

Last week, Judge Richard McNamara denied the four retirees' request for a preliminary injunction and instead gave the plaintiffs until Oct. 17 and the defendants until Nov. 26 to file legal memorandum.

New Hampshire Retirement System spokesman Marty Karlon said the system would not comment on a pending lawsuit. Attorneys for the NHRS filed a response in court that contends the suit should have been filed against the state and not the retirement system because it addresses changes in law.

The Attorney General's Office is defending the state due to the constitutional question raised in the suit.

Double-dipping

The architect of the 2011 retirement system reform legislation, Sen. Jeb Bradley, R-Wolfeboro, called the lawsuit astonishing.

“Of all the things the public gets up in arms about, double-dipping is one of the worst. The public feels the system is being abused by double-dipping,” he said. “To allow someone to get a retirement check at the same time they are in a highly paid job, the public has said, 'Enough,' and I think they are outraged.”

When a public worker retires from a job and uses their skills in another public job, that is fine, but they should still belong to the retirement system and not collect two pay checks, he said.

In both 2011 and 2012, lawmakers limited the amount of work a public retiree can perform for the state, city, town, county or school district on a part-time basis to 32 hours a week.

Neither public entities employing retirees nor the retirees have to contribute to the retirement system if they work 32 hours a week or less. Lawmakers attempted to limit “double dipping” because the retirees often replace a worker who would contribute to the system.

“To want to take the top job and not be in the retirement system, that is abusive of taxpayers and abusive of the trust these top jobs come with,” Bradley said.

When he was a freshman legislator 20 years ago, lawmakers were complaining about double-dipping, Bradley said. “It took 20 years to fix it. It is long overdue.”

The plaintiffs

The four plaintiffs are Mark T. Lemay a retired Manchester firefighter who works part-time for Goffstown, Litchfield and the State Fire Academy; William R. Tucker Jr., a retired Salem police officer who works part-time for Salem and Atkinson; Gregory Santuccio, a retired Derry police officer who works part-time for Auburn and Salem; and Scott Anderson, a retired Plaistow police officer who works part-time for Atkinson, Plaistow and Hampstead.

The plaintiffs' attorney, Jonathan Sistare of Dublin, could not be reached for comment.

Prior to the 2011 changes, which were contained in a reform package intended to address the system's significant unfunded liability, there were no hour restrictions for retirees who work for system members, as long as they worked part-time.

The 2011 law set the threshold at 32 hours per employer, which allowed retirees to work for more than one employer and work more than 32 hours. The 2011 change also counted Group I (employees and teachers) and Group 2 (firefighters and police officer) hours separately, which again allowed a retiree to work more than 32 hours.

The 2012 law signed by Gov. John Lynch restricted each retiree to 32 hours of work a week, with several exceptions, such as court per-diem officers and short-term positions of less than five months.

There are no restrictions on a retiree who works for a business or organization that does not contribute to the New Hampshire Retirement System.

Three of the four plaintiffs retired prior to the 2011 changes. One retired after the 2011 changes, but prior to the 2012 changes.

The four claim their vested rights when they retired are being violated and the changes are “highly injurious, oppressive and unjust to retired members of the NHRS.”

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Garry Rayno may be reached at grayno@unionleader.com.


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