An Act To Provide More Transparency and Protection for Public Employees ,in the Laws Governing the Maine Public Employees Retir~ment System
Maine Legislature, Session 124, LD 1292
Committee: Labor
Sponsors: MITCHELL, TUTTLE, JACKSON, BLODGETT
Amends: 2 MRSA §6-D, 5 MRSA §17054, 5 MRSA §17101, 5 MRSA §17103, 5 MRSA §17103-A, 5 MRSA §1710, 5 MRSA §17106, 5 MRSA §17106-A

MAINE STATE LEGISLATURE 
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124th MAINE LEGISLATU 
,FIRST REGULAR SESSION~2009 
Legislative Document 
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No. 1292 
S.P.474 
In Senate, March 31, 2009 
, An Act To Provide More Transparency and Protection for Public 
Employees ,in the Laws Governing the Maine Public Employees 
Retir~ment System 
Reference to the Committee on Labor suggested and ordered printe·d. 
Presented by President MITCHELL of Kemlebec. 
Cosponsored by Representative TUTTLE of Sanford and 
9t8(J~ 
JOY J. O'BRIEN 
Secretary of the Senate 
, Senators: JACKSON of Aroostook, McCORMICK of Kelmebec, Representative: BLODGETT 
of Augusta. 
Printed on recycled pilper 
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Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 2 MRSA §6-D, as amended by PL 1993, c. 410, Pt. L, §2 and PL 2007, c. 
58, §3, is further amended to read: 
§6-D. Salary of the Executive Director of the Maine Public Employees Retirement 
System 
Notwithstanding Title 5, section 17105, subsection 3, the salary of the Executive 
Director and deputy directors appointed by the Executive Director of the Maine Public 
Employees Retirement System are. established by the Board of Trustees of the Maine 
Public Employees Retirement System Governor and may not exceed the maximum rate of 
salary that may.be received by a state employee. 
. 
Sec. 2. 5 MRSA §17054, sub-§3, as amended by PL 1993, c. 386, §2, is further 
amended to read: 
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3. Recovery of overpayments by the retirement system. Any amounts due the 
retirement system as the result of overpayment or erroneous payment of benefits, an 
excess refund of contributions or overpayment or erroneous payment of life insurance 
benefits may be recovered from an individual's contributions, any benefits or life 
insurance benefits payable under this Part to the individual or the beneficiary of the 
individual or any combination of contributions and' benefits. 
If the overpayment or 
excess refund of contributions resulted from an unintentional mistake of or incorrect 
information provided by an employee of the retirement system or mistake of the retiree 
who is unaware of a rule or provision of law governing the operation of the retirement 
system, the retiree or the recipient of the benefit or life insurance benefit, no interest may 
be collected by the retirement system on the amount to be recovered no penalties or 
interest may be levied on the retiree's income and the retirement system may not reduce 
retirement benefits to the retiree to an extent that the reduction results in less than a 
livable income or an unreasonable and significant disruption in the ability of the retiree to 
sustain the retiree's quality of life. The executive director may also take action to recover 
those amounts due from any amounts payable to the individual by any other state agency 
or by an action in a cOllrt of competent jurisdiction., Whenever the executive director 
makes a decision to recover any amounts under this subsection, that decision is subject to 
appeal under section 17451; and 
The Maine Public Employees Retirement System shall verify eligibility of an employee 
for retirement benefits under the retirement system no later than 60 days following the 
effective date of employment of the employee. If, after verification, it is determined that 
the employer provided. incorrect information to the retirement system that would 
disqualify the employee for retirement benefits under the retirement system, the employee 
may not lose any retirement benefits. In the case in which social security is the proper 
. retirement funding source, the employer shall pay the employee and employer share for 
the time period following the employee's retirement to the time of discovery of 
ineligibility under the retirement system. The State is not responsible for the employer 
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contribution when the employer is a school district, municipality or county. 
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Sec. 3. 5 MRSA §17101, sub-§l, as amended by PL 1993, c. 410, Pt. L, §14, is 
fll11her amended to read: 
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1. Purpose. There is established a retirement system, the functions and operations of 
which are under the supervision of the board, for the purpose of providing retirement 
allowances and other benefits under this PaJ1 f01; employees. Providing and preserving 
access to disability benefits and a reasonable quality of life for members of the Maine 
Public Employees Retirement. System who become disabled is as imp011ant as 
preservation of the integrity and financial well-being of the retirement system. 
Sec. 4 . .5 MRSA §17103, sub-§6, as amended by PL 2007, c. 491; §77; is further 
amended to read: 
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6. Rights, credits and priviieges; decisions. The board shall in aii cases make the 
final and determining administrative decision in all matters affecting the rights, credits 
and privileges of all members of all programs of the retirement system· whether in 
pal1icipating local districts or in the state service. 
Whenever the board finds that, because of an error or omIssIon on the pal1 of the 
employer of a li1ember or retired member, a member or retired member is req~Iired to 
make a payment or payments to the retirement system, the board may waive payment of 
all or part of the amount due from the member or .retired member. In instances governed 
by section 17054, subsection 3 or 4 the board shall make decisions in accordance with the 
requirements of those provisions. 
Sec. 5. 5 MRS A §17103, sub-§6-A is enacted to read: 
6-A. Ensure communication between the board and members of the retirement 
system. The board shall ensure that all members of the retirement system are made· 
aware Of the requirements by law or rule and any changes to these requirements 
govenling retirees, disability benefits and any other benefits provided by the retirement 
system. The board shall ensure that any retirement information provided to retirement 
system members is provided by highly competent individuals well-trained and 
knowledgeable about the benefits and requirements of the retirement system in .both law· 
and rufes, including requirements to qualify for disability retirement, and illcluding 
information provided by individuals representing participating local distl~icts to members. 
Sec. 6. 5 MRSA §17103, sub-§6-B is enacted to I'ead: 
6-B. Ensure communication between the board and the administrative staff of 
the retirement system.· The board shall establish a process and make every eff011 to 
meet at least once a year with administrative personnel, incll1di~g hearing examiners; to 
discuss issues of concern to the administrative staff. Information provided to the board is 
confidential unless the administrative staff declares otherwise. 
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Sec. 7. 5 MRS A §17103, sub-§8, as amended by PL 1989, c. 483, Pt. A, §§27 
. and 63, is repealed. 
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Sec. 8. 5 MRSA §17103, sub-§l1, as amended by PL 1997, c. 651, §3, is fUliher 
amended to read: 
11. RepOI·t to Legislature. The board shall make a written repOli to the appropriate 
legislative committee on or before the March 1 st of each year that must contain: . 
A. . A discussion of any areas of policy or administration that, in the opinion of the 
board, should be brought to the attention of the committee; 
B. 
Any proposed legislation amending the retirement system law that the board 
recommends to improve the retirement system; 
C. A discussion of the progress toward meeting the goals of chapter 161; 
D. A review of the operations of the retirement system, including a summary of 
administrative expenses and improvements in the delivery of services to members of 
the retirement system; aRt!-
E. A budget report showing the budget status of'the administrative operations and 
functions of the system for the current fiscal year relative to the budget for the current 
fiscal year~~ 
F. The number of individuals who retired in the 12 months of the previous year by 
employee status to include state employees, teachers and palticipating local district 
employees; 
G. The number of new active members of the retirement system for the previous year 
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by employee status;' 
H. The amount ofeal11ings on investment in the 12 months of the previous year; 
I. The total amount of employee and employer contributions to the retirement system 
in the 12 months of the previous year and the total amount of payout to retirees by 
employee status; and 
J. The number of persons who applied for disability retirement in the 12 months of 
the previous year including: 
(1) 
The number of applicants for disability retirement who were awarded 
benefits at the application stage; 
(2) 
The number of applicants for disability retirement who were awarded 
benefits following the submission of additional infOimation; 
(3) 
The net number of applicants for disability retirement who appealed 
decisions that denied disability retirement status; and 
(4) The number of applicants who were granted disability retirement following 
their appeals. 
Sec. 9. 5 MRSA §17103-A is enacted to read: 
§17103-A. Appointment-of the executive director 
The executive director is appointed by the Governor in consultation with the board 
and subject to approval by the joint standing committee of the Legislature with 
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jurisdiction over labor matters and confirmation by the Senate. The salary of the 
executive director is set by the Governor. The person nominated for executive director 
m'ust demonstrate concern and understanding of the needs of public empl~yees and 
retirees, as well as fiscal knowledge and competency. 
Sec. 10. 5 MRS A §1710S, sub-§l, as amended by PL 2007, c. 491, §78, IS 
further amended to read: 
1. Duties. In addition to other duties set out in this PaIi, the executive director; as 
appointed under section 171 03, subsection 8 17103-A, shall have has the following 
duties. 
A. 
The executive director shall have has administrative responsibility for the 
retirement system, including responsibility for the approval of the payment of all 
benefits und,er this PaIi. 
B. The executive director shall obtain whatever services are required to transact the 
business of the retirement system. 
C. The executive director shall keep in convenient form whatever data are necessary· 
for actuarial valuation of the various funds of the retirement system and for checking 
the experience of each of the programs of the retirement system. 
D. Whenever the executive director determines that a fraud, an attempted fraud or a 
violation of law in connection with funds administered by the retirement system may 
have occurred, the executive director shall: 
(I) RepOli in' writing all information concerning the fraud or violation to the 
Attorney General or the Attorney General's designee for such action as He the 
Attorney General or the Attorney General's designee may deem determine 
appropriate, including civil action for recovery of funds and criminal prosecution 
by the Attorney General; and 
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(2) Upon request of the Attorney General and in such a manner as the Attorney 
General EI-eem5 determines appropriate, assist in the recovery offunds. 
E. 
The executive director shall cause to be delivered to each paIiicipating local 
district a written notice setting fOlih the amendments or additions to this PaIi and 
shall require from each participating local district an acknowledgment of receipt of 
that notice. 
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F. Upon discovery of any error in any record of the retirement system, the executive 
director shall, to the extent practicable, correct the record. 
Sec. 11. 5 MRSA §1710S-Ais enacted to read: 
§17105-A. Adverse decisions ofthe board or executive director 
Prior to any adverse decision rendered by the board or the executive director with 
respect to an applicant regarding any benefits, penalties or assessment of interest, the 
board and executive director shall hold a hearing to which the applicant may bring legal 
counsel. Failure to follow this procedure invalidates any adverse decisiori rendered by the 
board or the executive director. 
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Sec. 12. 5 MRSA §17106, as amended by PL 2007, c. 491, §79, is further 
amended to read: 
§17106. Medical board 
L Establishment. The board shall designate a medical board or boards each to be 
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composed of 3 physicians not eligible to participate in any of the retirement programs of 
the retirement system. The medical board or boards must be composed of physicians.· 
whose practices involve treating the physical or mental conditions that afflict the 
applicant and for which the applicant is applying for benefits. 
2. Other physicians. If determined' advisable by the board, the board may designate 
other physicians to provide medical consultation on disability cases. Prior to rendering 
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any adverse recommendations regarding a disability case, the medical board shall provide 
the applicant and or the applicant's attorney with the criteria, standards and reasons, 
including medical criteria on which the decisions of the medical board are based. The 
medical board shall explain how the applicant failed to meet the necessary criteria and 
standards to qualify for a disability benefit. 
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3. Powers and duties. The medical board or other physiciail designated by the board 
shall, at the request of the executive director, review the file of an applicant for disability 
retirement and as requested shall respond on any or all of the following: 
A.· 
Recommend an additional medical review in those instances where there are 
conflicting medical opinions; 
B. 
Recommend additiorial medical tests to be performed on an applicant to obtain 
objective evidence of a permanent disability; 
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C. 
Assist the executive director in determining if a disability review of a recipient 
of a disability allowance is warranted; 
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D. 
Inform the executive director and board in writing of its view as to the existence 
of a disability entitling an applicant to benefits under chapter 423, subchapter V- 2, 
articles 3 and 3-A, or chapter 425, subchapter V- 2, articles 3 or 3-A;and 
E. 
Advise the executive director and board at the request of either whether there are 
medical indications that a person who is the recipient ofa disability retirement benefit 
under chapter 423, subchapter V- 2, article 3-A or chapter 425, subchapter V- 2, article .. 
3-A should not engage in a rehabilitation program or whether a recipient is too 
severely disabled to benefit from rehabilitation in accordance with the purposes of 
chapter 423, subchapter V- 2, article 3-A or chapter 425, subchapter V- 2, article 3-A. 
4. Opinions of the medical board. Opinions expressed by the medical board at the 
request of the retirement system must be in writing and must be provided to all applicants 
or recipients of disability retirement benefits whenever the retirement system relies on 
those opinions to grant; reject orterminate benefits. 
A. OpinIons expressed by the medical board in connection with an application for or 
review of benefits may not be considered expeli evidence if relied upon by. the 
retirement system or its hearing officers or the board of trustees to deny or 
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discontinue benefits unless the author of the opinion is made available for cross-
examination to the applicant or recipient or appointed legal representative. 
B. 'An opinion on a material issue expressed by the medical board, whether subject to 
cross-examination or not, may not: 
(I) Be given dispositive weight whether in the administrative process triggered 
by an application for disability retirement benefits or any subsequent review 
process; and 
(2) Be considered substantial evidence in support of the retirement system's 
decision to deny an initial application for disability retirement benefits, or to 
terminate those benefits in any subsequent review process, unless that opinion is 
independently suppOlied by credible evidence in the record. 
C. The weight to be given all expeli medical evidence must be determined by the 
following factors: 
(1) 
Preferential weight must be' given to medical opinions offered by an 
applic'ant's or recipient's treating medical provider on all material issues, 
including, but not limited to, the existence of a medical condition, the impairment 
it causes directly or indirectly, the propriety of medical care, the permanency of 
. any incapacity and prognosis, so long as those opinions are expressed by 
appropriately qualified providers; 
(2) The amount of preferential weight-afforded the opinions under subparagraph 
must be gauged by the expertise of the provider with regard to the material. 
medical issue commented upon, the extent or duration of treatment provided, the 
thoroughness of an evaluation, the medical foundation upon which the opinion is 
based and the consistency of the opinion with other evidence in the record; and 
(3) If an opinion expressed by a treating medical provider on any material issue 
in dispute is supported by medically acceptable standards, practices, procedures 
and approaches, and is consistent with other expert opinion in the record, it must 
be given controlling weight over the contrary opinion or conclusion reached by 
any nontreating, nonevaluating source. 
5. 
Cross-examination by deposition. 
When' an applicant disagrees with the 
opinions of the medical board, and the medical board's written opinions are offered as 
evidence in an administrative hearing pursuant to this chapter, the applicant is entitled to 
cross-examine any member of the medical' board by deposition, the cost of which must be 
borne by the applicant and the transcript' of which must be admitted as evidence at 
hearing. 
6. Opinions of treating medical providers. Unless the substantial evidence of 
record compels a contrary conclusion, the opinions of an applicant's treating medical . 
provider must be accorded controlling weight by the hearing officer. 
Sec. 13. 5 MRSA §17106-A is enacted to read: 
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§17106-A. Hearing officers 
Any heating officers employed or contracted pursuant to this chapter are authorized 
to make final decisions about disability benefits and other benefitsba.sed on all the data 
and 'evidence presented at the hearing, including information provided by treating 
physicians, public officials, witnesses, the medical board and other sources. The findings 
and opinions of the hearing officers or examiners must be made in accordance, with 
section 17106, subsections 5 and 6. 
8, 
Sec. 14. 5 MRS A §17924, sUlb-§2, ~A is enacted to read: 
A. This subsection applies only to members whose creditable service began 5 or 
fewer years prior to the member's application for disability benefits. This paragraph is 
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effective retroactively to March 27, 2007. 
Sec. 15. 5 MRSA§18504, sub-§2, as amended by PL 2007, c. 491, §244, IS 
further amended to read: 
2. Exception. A member with fewer than .5 years of continuous creditable service 
immediately preceding that member's application for a disability retirement benefit is not 
eligible for that benefit if the disability is the result of a physical or mental condition that 
existed before the member's .J-atest membership in a retirement program of the Maine 
Public Employees Retirement System, unless the disability ,is a result of, or has been 
substantially aggravated by, an injury or accident received in the line of duty but from 
events or circumstances not usually encountered within the scope of the member's 
employment. 
A. This subsection applies only to members whose creditable service began 5 or 
fewer years prior to the member's application for disability benefits. This paragraph is 
effective retroactively to March 27, 2007. 
Sec. 16. 5 MRS A §18511, suib-§2, as amended by PL 1989, c. 878, Pt. B, §6, is 
further amended to read: 
2. Presumption. In participating local districts which have not adopted the 'disability 
retirement benefits enacted by Public Law 1975, chapter 622, section 54, and subsequent 
amendments, it 11 is presumed that a member incurred a disability in the line of duty 
wlticlt that occurred while, in actual performance of duty at some definite time and place 
and wlticlt that was not caused by the willful negligence of the member if: 
A. The disability is the result of a cardiovascular injury wlticlt that occurred, or a 
cardiovasclilar or pulmonary disease wlticlt that developed, within 6 months of 
having palticipated in fire fighting firefighting or in a training or drill wlticlt that 
involved fire fighting firefighting; and 
B. 
The member was an active member of a municipal fire department or of a 
volunteer fire association, as defined in Title 30-A, section 3151, for at least 2 years 
before the injury or the onset of the disease~" 
C. 
The member has been granted workers' compensation benefits for the 
cardiovascular iniufv or disease or the oulmanarv disease. 
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SUMMARY 
This bill provides more transparency, accountability and protection for public 
,employees with respect to the processes and policies of the Maine Public Employees 
Retirement System. The bill: 
1. Provides that the executive director of the retirement system be appointed by the 
Governor subject to confirmation by the Senate; 
2. Provides that persons providing information to prospective retiring public 
employees be well trained and knowledgeable about retirement system laws and rules and 
be able to provide this information in understandable terms; 
3. Provides that mistakes by public employees or employees of the retirement system 
in regard to retirement system benefits, including overpayments, may not result in 
punitive and unreasonable penalties that result in reducing benefits below a livable 
income; 
4. Provides that public employees who enroll in the retirement system must be 
reviewed by the retirement system no later than 60 days following enrollment in regard to 
eligibility for benefits under the retirement system; 
5. Authorizes hearing examiners to make final decisions about disability benefits and 
other be.nefits based on all the data and evidence presented at the hearing, including 
inforrilation provided by treating physicians, public officials, witnesses, the medical 
board and other sources; 
6. Provides that the OpII110nS of an applicant's treating medical provider must be 
accorded controlling weight unless the substantial evidence of record compels a contrary 
conclusion; 
7. Requires' the board of trustees to communicate with administrative staff throughout 
the retirement system at least once a year in regard to issues of concern to the staff; 
' 8. Requires the medical board, the executive director or the board of trustees, prior to 
making any adverse recommendations regarding a disability case, to meet with the 
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applicant or the applicant's attorney to provide the criteria, standards and reasons, 
including medical criteria on which the decisions of the medical board are based; 
9. Requires the medical board to which a disability retirement request has been 
referred to be composed of physicians whose practices involve or have involved the 
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treatment of the physical or mental conditions on which the case of the applicant is based; 
10. Establishes as a purpose of the retirement system the provision of and 
preservation of access to disability benefits and a reasonable and deceilt quality of life for 
members of the retirement system, including individuals who become disabled. This 
pl:ovision is given equal weight with the integrity and financial well-being of the 
retirement system; 
11. Requires additional information as part of the retirement system's annual report to 
include information regarding the number of state employees, teachers and participating 
district employees who retired and the amount of retirement payouts, the number of 
persons who applied for disability retirement and the number denied disability retirement" 
in the previous year and the number of applicants who were denied disability retirement 
following submission of additional information and following applicants' appeals; and 
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' 12. Overrules a decision of the Superior Court that discriminates against all 
employees who take more than 30 days of unpaid leave during any period of their last 5 
,years of retirement system service, regardless of their totalserv·ice in the retirement 
system. 
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