McDivitt v. PERA

17CA0833 McDivitt v PERA 05-24-2018

COLORADO COURT OF APPEALS

Court of Appeals No. 17CA0833
City and County of Denver District Court Nos. 15CV713 & 15CV34501
Honorable Edward D. Bronfin, Judge

Patrick J. McDivitt,

Plaintiff-Appellant,

v.

Public Employees’ Retirement Association of Colorado; Public Employees’
Retirement Association of Colorado Board of Trustees in their official capacity;
and Office of the Colorado State Court Administrator,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE HARRIS
Taubman and Nieto*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 24, 2018

Patrick J. McDivitt, Colorado Springs, Colorado, for Plaintiff-Appellant

Rollin Braswell Fisher LLC, Eric Fisher, Caleb Durling, Corey Longhurst,
Greenwood Village, Colorado, for Defendants-Appellees Public Employees’
Retirement Association of Colorado and Public Employees’ Retirement
Association of Colorado Board of Trustees in their official capacity

Cynthia H. Coffman, Attorney General, Leann Morrill, First Assistant Attorney
General, Denver, Colorado, for Defendant-Appellee Office of the Colorado State
Court Administrator
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Plaintiff, Patrick J. McDivitt, a recently retired city employee,

appeals a decision by the defendant, Public Employees’ Retirement

Association of Colorado (PERA), denying him service credit for a

prior one-year term of employment that ended in 1980.

¶2 At that time, McDivitt was a law clerk for the Colorado Court

of Appeals. During the term of his clerkship, McDivitt was not a

member of PERA. He has never claimed that he applied for

membership, intended to be a member, or that he mistakenly opted

out of membership. To the contrary, he has acknowledged that he

elected not to make contributions to PERA and that he understood

that the court of appeals was not making contributions on his

behalf.

¶3 Nevertheless, in 2001, when McDivitt returned to

PERA-covered employment, he sought service credit for the term of

his clerkship. Though he does not dispute that he intended to forgo

membership in PERA, he says that he does not recall completing a

waiver form, the court of appeals has not produced such a form,

and there is no evidence that PERA approved his waiver. Therefore,

he insists, he did not satisfy the statutory criteria for opting out of

1
membership and so he is entitled to PERA credit for his clerkship

term.

¶4 The PERA Board of Trustees (the Board) determined that

McDivitt failed to establish his entitlement to service credit and, in

any event, his claim was barred by laches.

¶5 We conclude that the record supports the Board’s

determination that McDivitt is not entitled to credit. Accordingly,

without addressing the applicability of the doctrine of laches, we

affirm.

I. Background

A. Factual Background

¶6 In August 1979, McDivitt was hired as a temporary law clerk

at the court of appeals. The court of appeals is a PERA employer.1

1 As PERA members, the judges on this division may have a

financial stake in the outcome of the case. Generally, a judge must
recuse herself from any proceeding in which she has a financial
interest. See Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 639-40
(Colo. 1987). But where every judge on the court has a common
interest in the outcome of a case, recusal would prevent the case
from being decided and no judge is required to recuse herself.
Pomerantz v. Microsoft Corp., 50 P.3d 929, 931-32 (Colo. App.
2002). See also C.J.E.A.B. Advisory Op. 2013-03 (July 9, 2013)
(concluding that the rule of necessity overrides a judge’s potential
conflict in deciding a case involving PERA). Therefore, despite our

2
¶7 Under then-existing rules, law clerks, like all temporary or

part-time employees, could either apply for “optional membership”

in PERA or could choose to “be excluded from membership.” See

PERA Rules 10.2012, 10.202, 8 Code Colo. Regs. 1502-1 (effective

Dec. 11, 1967-Dec. 30, 1979). The PERA rules required that a

decision to opt out of membership be documented on a form signed

by the employee and employer and forwarded to PERA for approval.

PERA Rule 10.2012(b), (e), 8 Code Colo. Regs. 1502-1 (effective Dec.

11, 1967-Dec. 30, 1979). If the temporary employee’s term

ultimately exceeded one year, he or she was required to be “covered

thereafter.” PERA Rule 10.2012(2), 8 Code Colo. Regs. 1502-1

(effective Dec. 11, 1967-Dec. 30, 1979).

¶8 McDivitt did not produce a membership application. His

personnel forms indicated that neither he nor the court of appeals

contributed to PERA during the term of his employment at the

court.

¶9 About twenty years later, in 2001, McDivitt was hired by the

City of Colorado Springs. The City of Colorado Springs is a PERA

possible financial stake in the outcome of this case, we need not
recuse ourselves.

3
employer. When McDivitt determined that he might retire from his

job with the City, he realized that service credit from his clerkship

would “do wonders” for his retirement benefits. For example, he

could purchase up to ten years of service credit (that would be

converted into a 29% increase in retirement benefits), rather than

five, if he could establish membership in PERA prior to 1999. His

only claim to pre-1999 membership was his employment as a law

clerk.

¶ 10 In December 2001, McDivitt contacted PERA seeking service

credit for his clerkship term. He explained that he “need[ed] the

year of credit not only for years of service, but also to be able to

purchase additional years of credit not subject to the 5-year limit.”

McDivitt did not claim that he had been a member of PERA or that

he had intended to apply for membership, but only that “there [wa]s

not a waiver of PERA benefits” included in his attached personnel

records.

¶ 11 In January 2002, PERA sent letters to McDivitt and defendant,

the State Court Administrators Office (SCAO), the entity responsible

for the court of appeals’ contributions to PERA. The letters to

McDivitt form the basis of his primary argument on appeal.

4
¶ 12 As relevant here, on January 25, 2002, PERA sent SCAO an

“unpaid contribution agreement” purportedly showing the amount

of SCAO’s contribution owed from November 1, 1979, to August 12,

1980. The contribution agreement was based on PERA’s mistaken

belief that McDivitt had been a part-time employee with the court of

appeals who had exceeded the maximum allowable hours for a

part-time employee beginning in November 1979.

¶ 13 On that same date, PERA sent McDivitt a letter (the January

2002 letter).2 The January 2002 letter included a copy of the

unpaid contribution agreement sent to SCAO and explained the

employee’s process for obtaining service credit which, as the letter

outlined, was contingent on the employer paying its share. The

January 2002 letter advised McDivitt that it constituted “initial

notice” under section 24-51-402(4), C.R.S. 2017.

¶ 14 But SCAO did not agree that it owed an unpaid contribution.

SCAO responded to PERA’s letter by disclaiming knowledge of

McDivitt’s employment (as it no longer had personnel records from

2 On January 28, 2002, PERA sent McDivitt a substantially similar

letter explaining the date on which his potential PERA benefits
would commence.

5
1979) and requesting a copy of a “member record form that shows

[McDivitt] chose participation with PERA through Judicial.” SCAO

noted that “it is very possible that [McDivitt] declined PERA since it

was an option at that time.”

¶ 15 In response, PERA forwarded the personnel records received

from McDivitt. According to PERA, because SCAO had “been

unable to provide PERA with documentation showing that Mr.

McDivitt chose an exemption from [PERA] membership,” SCAO

owed the unpaid contribution.

¶ 16 Again, SCAO responded that “[s]ince there is no PERA

enrollment form from the employee,” and because McDivitt’s

personnel records established that “PERA contributions were not to

be taken at the time of employment,” it appeared that McDivitt was

not a member of PERA during his clerkship.

¶ 17 Finally, in February 2003, SCAO submitted a more thorough

response to PERA’s demand for unpaid contributions. It explained

that McDivitt had been a temporary, not a part-time, employee; that

PERA rules then in effect permitted exempt status for temporary

employees; and that new law clerks were offered the choice to

“accept PERA membership or to exercise their option not to be

6
covered.” SCAO advised PERA that “[v]ery few [law clerks] elected

PERA membership.” SCAO also challenged PERA’s premise that the

court’s inability to produce a waiver form demonstrated McDivitt’s

entitlement to credit, as the form would have been forwarded to

PERA pursuant to its rules.

¶ 18 Still, SCAO acknowledged that PERA membership would be

required “at such time that the temporary employee exceeded the

one-year limit.” Because McDivitt’s term of employment ran from

August 1, 1979 to August 12, 1980, SCAO conceded that he might

be entitled to twelve days of service credit for August 1 to August

12, 1980.

¶ 19 At that point, PERA relented. It reinitiated contact with

McDivitt; reminded him that it had been “investigating . . . potential

unpaid contributions” from the court of appeals; but informed him

that, in light of new information received from the court, it needed

additional documentation concerning PERA membership or

exemption.

¶ 20 McDivitt responded about eighteen months later. He did not

contend that he had been a member of PERA or that he had

mistakenly or unknowingly opted out of PERA. Instead, he

7
reiterated his earlier position that under the PERA rules, exemption

required a written statement, the court did not have such a

statement, and he did not recall signing one. And he noted that

PERA had earlier “informed [him] that [he] should receive credit for

that year.”

¶ 21 PERA told McDivitt it could not pursue his claim without

additional documentation, and neither party pursued the matter for

the next eight years.

¶ 22 In 2013, McDivitt prepared to retire from his job with the City

of Colorado Springs. He applied to purchase ten years of service

credit based on his PERA membership during his clerkship and

reasserted his claim for service credit.

¶ 23 PERA allowed McDivitt to purchase ten years of service credit

based on his membership in PERA from August 1 to August 12,

1980, but declined to award service credit for the remainder of his

clerkship.

B. Procedural History

¶ 24 In February 2013, PERA issued a “staff determination”

denying McDivitt’s request for service credit from August 1, 1979, to

July 31, 1980. According to the staff decision, McDivitt had failed

8
to provide sufficient documentation to satisfy his burden to

demonstrate entitlement to credit. It concluded that, based on the

evidence, McDivitt had “chosen to exempt [himself] from PERA

membership for [his] year of employment as permitted by PERA law

and rules at the time.” The staff decision advised McDivitt of his

appeal rights.

¶ 25 McDivitt appealed the decision to PERA’s Executive Director,

who affirmed the staff decision.

¶ 26 McDivitt then appealed the Executive Director’s decision to a

panel of the Board (the Panel). The Panel received briefing from

PERA, SCAO, and McDivitt, and conducted a two-day evidentiary

hearing. McDivitt testified at the hearing. He did not say that he

had intended to be a member of PERA during his clerkship, believed

he was a member of PERA, or inadvertently failed to apply for

membership. He did not deny, though he does not appear to have

been asked directly, that he intended to opt out of membership.

Instead, he confirmed that, at the time of his employment with the

court, he “was aware” that he was not covered by PERA. Following

the hearing, the Panel affirmed the Executive Director’s decision,

ruling that McDivitt had not met his burden to show eligibility for

9
PERA membership during the first year of his clerkship and that his

claim was barred by laches.

¶ 27 McDivitt appealed the Panel’s decision to the Board and, after

reviewing the record and hearing argument, the Board affirmed the

Panel’s decision.

¶ 28 McDivitt then filed this C.R.C.P. 106(a)(4) action in the district

court. McDivitt argued that he was entitled to service credit for the

period from August 1, 1979, to July 31, 1980 on two grounds: (1)

PERA had granted the credit in the January 2002 letter, the

January 2002 letter was a “staff decision” that became binding on

PERA when it was not appealed within ninety days, and PERA could

not reopen the final decision eleven years later; and (2) even if the

January 2002 letter was not a final determination, the Board

abused its discretion in denying the service credit in 2013 because

there was no evidence that McDivitt had signed a waiver form, as

required for exemption from PERA membership. McDivitt also

challenged PERA’s authority to invoke laches and the Board’s

finding that the elements of laches had been established.

¶ 29 In a thorough, well-reasoned decision, the district court

affirmed the Board’s order.

10
II. Discussion

¶ 30 On appeal, McDivitt reasserts his two grounds for reversal.

First, he argues that the Board lacked jurisdiction to re-decide the

issue of his entitlement to service credit, having resolved that

question in 2002. Second, he argues that even if the Board had

jurisdiction to decide the issue, it abused its discretion by deciding

that he was not entitled to the credit.3

A. Preservation and Standard of Review

1. Preservation

¶ 31 As a preliminary matter, we reject the defendants’ contention

that, although McDivitt has asserted his second argument at every

stage of the administrative proceedings and in the district court, he

abandoned it on appeal to this court. We read McDivitt’s third

issue on appeal to encompass his oft-repeated claim that he was

not exempt from membership in PERA during his clerkship and

therefore he was entitled to service credit for that year. Though the

last sentence of his four-page argument mentions laches, the

3 McDivitt also challenges the Board’s application of the defense of

laches. But in light of our disposition, we need not address that
issue.

11
sentence begins with the assertion that “[u]nder its statutes and

rules, PERA has no option but to grant McDivitt membership . . . .”

That assertion is a summary of the four-page argument that

precedes it. Thus, we do not construe the brief reference to laches

to change the nature of the claim.

2. Standard of Review

¶ 32 On appeal from a judgment under C.R.C.P. 106(a)(4), we focus

on the decision of the administrative agency, not that of the district

court. Hammond v. Pub. Emps.’ Ret. Ass’n, 219 P.3d 426, 428

(Colo. App. 2009). We will reverse the decision of a board of an

administrative agency only if we find that the board acted arbitrarily

or capriciously, made a decision that is unsupported by the record,

erroneously interpreted the law, or exceeded its authority. Dep’t of

Human Servs. v. State Pers. Bd., 2016 COA 37, ¶ 12.

¶ 33 Findings of fact must be accepted on review, unless they are

so clearly erroneous as not to find support in the record. Ward v.

Dep’t of Nat. Res., 216 P.3d 84, 93 (Colo. App. 2008). And we will

affirm the agency’s legal conclusions if they are supported by a

reasonable basis. Hammond, 219 P.3d at 428.

12
¶ 34 In short, we must uphold an agency’s final decision if a

consideration of the record as a whole reveals that the decision is

supported by substantial evidence. Dep’t of Human Servs., ¶ 13. In

considering the record, we resolve all reasonable doubts as to the

correctness of the administrative body’s ruling in its favor. Id. at

¶ 14.

B. PERA Had Jurisdiction to Reopen the Issue of McDivitt’s Prior
Eligibility for Membership in PERA

¶ 35 McDivitt first contends that the Board lacked jurisdiction in

2013 to determine whether he was entitled to service credit for the

term of his clerkship. According to McDivitt, PERA granted him

credit, at least from November 1979 to August 1980, in the January

2002 letter. And the January 2002 letter, he says, was a “staff

decision” that became final and binding ninety days after its

issuance, when the time to appeal expired.

¶ 36 We agree that an agency is not authorized to reconsider a final

decision once the review period has expired. See Moschetti v. Bd. of

Zoning Adjustment, 40 Colo. App. 156, 158, 574 P.2d 874, 875

(1977) (“[A]n administrative board has authority to modify a

decision at any time prior to the date an appeal must be perfected

13
pursuant to procedure governing judicial review of that order.”).

The question, then, is whether the January 2002 letter constituted

an appealable “staff decision” that became final and binding on

PERA.

¶ 37 The term “staff decision” or “staff determination” is not defined

by statute or rule. The only reference to a “staff decision” in the

PERA rules is found in PERA Rule 2.20(A), 8 Code Colo. Regs.

1502-1: “A written request for an initial decision by the Executive

Director must be received by the Association within 90 days after

the date on which the staff decision is mailed. The staff decision

shall be sent by certified mail.”

¶ 38 The Board found that the January 2002 letter was not an

appealable staff decision but a “bill” to SCAO with a corresponding

explanation to McDivitt of the process for obtaining service credit.

¶ 39 The district court, in turn, determined that the proper

characterization of the January 2002 letter presented a question of

fact and upheld the Board’s finding as supported by the evidence.

As the district court explained, “The [January] 2002 [l]etter advised

Mr. McDivitt that PERA would notify him when SCAO made that

payment and instructed Mr. McDivitt on how he could receive full

14
service credit and full salary.” The court noted that the January

2002 letter advised McDivitt that his ability to obtain service credit

was contingent upon SCAO’s payment of the “bill,” and that the

letter made clear that SCAO had not yet agreed to pay the bill.

¶ 40 On appeal, McDivitt says the Board’s finding was not an

ordinary factual finding, but an “ultimate conclusion of fact,”

subject to a less deferential standard of review. An administrative

body decides an “ultimate conclusion of fact” when it makes a

factual determination that involves a question of law. Nixon v. City

& Cty. of Denver, 2014 COA 172, ¶ 22. Ultimate conclusions of fact

often settle the rights and liabilities of the parties. Id. Where an

administrative body interprets and applies its own rules to the

facts, it makes an “ultimate conclusion of fact.” Id. at ¶ 23.

¶ 41 Even if we assume that the characterization of the January

2002 letter was an ultimate conclusion of fact, we nonetheless must

affirm the Board’s determination if it has a “reasonable basis in

law.” Id. (citation omitted); Lawley v. Dep’t of Higher Educ., 36 P.3d

1239, 1252 (Colo. 2001) (holding that the court of appeals erred in

overturning the Board’s decision where its ultimate conclusion of

fact had a reasonable basis in law).

15
¶ 42 Here, for three reasons, we conclude that the Board’s

determination that the January 2002 letter was not a staff decision

has a reasonable basis in the law.

¶ 43 First, like the district court, we conclude that the Board’s

construction of the January 2002 letter is reasonable. The January

2002 letter did not specifically inform McDivitt that he had been

granted service credit. Instead, the letter explained the process for

obtaining the credit. McDivitt was advised that “full service credit

and full salary will result only if both the employer’s share and the

employee’s share are paid in full.”

¶ 44 The contingent nature of the advisement is significant, in our

view, because McDivitt would have known in January 2002 both

that SCAO had not yet made any contribution on his behalf and

that SCAO would have had a valid defense to any demand for

contribution. After all, according to McDivitt’s own testimony and

arguments, he knew that he was not a member of PERA from 1979

to 1980, and that neither he nor the court of appeals had made any

contributions on his behalf during that period.

¶ 45 Second, and relatedly, final agency decisions must include

notice of available appellate remedies, see Mountain States Tel. &

16
Tel. Co. v. Dep’t of Labor & Emp’t, 184 Colo. 334, 338, 520 P.2d 586,

589 (1974) (Procedural due process requires that notice of agency

action include any “available appellate remedies.”), and the January

2002 letter did not include any such notice. The absence of any

notice of appeal rights is also consistent with the Board’s

interpretation of the January 2002 letter as a mere bill with an

explanation.

¶ 46 Third, under PERA Rule 2.20, 8 Code Colo. Regs. 1502-1, a

final decision must be sent by certified mail and the January 2002

letter was not. Indeed, McDivitt himself appears to concede that

this characteristic of the letter precluded it from serving as a staff

decision: “[T]he letters did not constitute a ‘staff decision’ binding

on McDivitt,” he asserts in his opening brief, because “[n]either

letter was sent by certified mail as required by Rule 2.20A.”

¶ 47 Accordingly, we conclude that the Board had a reasonable

basis for determining that the January 2002 letter was not a “staff

decision” and, consequently, that the Board was not divested of

jurisdiction to re-open the issue of McDivitt’s entitlement to service

credit in 2013.

17
C. The Board Did Not Abuse its Discretion in Finding that
McDivitt Was Not Entitled to Service Credit for The Period from
August 1979 to July 1980

¶ 48 In addressing the merits of McDivitt’s claim, we begin by

emphasizing that McDivitt bore the burden of proof during the

administrative proceedings. § 24-4-105(7), C.R.S. 2017 (“[T]he

proponent of an order shall have the burden of proof . . . .”); see

also PERA Rule 2.20(E), 8 Code Colo. Regs. 1502-1 (“The person

who requested the hearing shall bear the burden of proof by a

preponderance of the evidence at the hearing.”). Accordingly, he

had to demonstrate that he was, or should have been, a member of

PERA from August 1, 1979 to July 31, 1980.

¶ 49 The Board determined that McDivitt had not demonstrated his

eligibility for membership during that period. To the contrary, the

Board concluded that, as a temporary employee, McDivitt had likely

waived membership in PERA.

¶ 50 McDivitt does not expressly dispute that he intended to forgo

membership in PERA. Instead, he says that, to be exempt from

PERA, the employee and the employer had to memorialize the

employee’s decision in a written waiver form, and neither PERA nor

SCAO has produced a written waiver form. Therefore, he contends,

18
he could not be exempt from PERA and he must instead have been

a member or, at least, eligible for membership.

¶ 51 We discern two problems with McDivitt’s argument.

¶ 52 For one thing, his argument assumes that PERA rules

required temporary employees to “opt out” of membership. In other

words, according to McDivitt’s theory, in the absence of proof that

he had opted out, he was necessarily a member.

¶ 53 But under the PERA rules then in effect, temporary employees

had to “opt in” to “optional membership.”4 See Sanger v. Davis, 148

P.3d 404, 416-17 (Colo. App. 2006) (discussing “opt in” versus “opt

out” rules of procedure). PERA Rule 10.201, 8 Code Colo. Regs.

1502-1 (effective Dec. 11, 1967-Dec. 30, 1979), provided that “all

full-time employees” were required to become members “unless the

law specifically permits optional election of membership.” PERA’s

rules did allow for optional election of membership for certain

employees. PERA Rule 10.202, 8 Code Colo. Regs. 1502-1 (effective

4 At oral argument, PERA, but not SCAO, conceded McDivitt’s

premise that the rules required membership in PERA unless the
employee opted out. But the concession was not based on an
interpretation of PERA Rules 10.201, 10.202, 8 Code Colo. Regs.
1502-1 (effective Dec. 11, 1967-Dec. 30, 1979), and, in any event,
we are not bound by PERA’s concession.

19
Dec. 11, 1967-Dec. 30, 1979) — entitled “Optional Membership” —

provided that “[a]ny part-time, temporary, or seasonal employee,

regardless of the nature or extent of his employment, may apply for,

and subject to the approval of the retirement board, be admitted to

membership.” This rule explains why, initially, SCAO twice

requested a copy of an “enrollment form” showing that McDivitt had

“chose[n] participation with PERA through Judicial,” and why the

Board specifically found that “[n]either PERA nor the Court has a

PERA membership form for Mr. McDivitt.”

¶ 54 If PERA rules required a temporary employee to “opt in,” then

McDivitt had to produce an enrollment form or other proof of

membership. It would not be enough, under those circumstances,

to rest on the absence of a waiver form.

¶ 55 But even if we assume that under the then-existing PERA

rules, a temporary employee was enrolled in PERA unless he “opted

out” of membership in accordance with Rule 10.2012, McDivitt still

cannot prevail.

¶ 56 McDivitt has not once denied that he intended to opt out of

PERA. His argument is not that he thought he was a member of

PERA, or that he intended to be a member of PERA, or that any

20
exemption from PERA was inadvertent or unknowing; his argument

is simply that the court of appeals apparently failed to comply with

PERA’s rule that the employee document his decision to opt out.

¶ 57 McDivitt, though, is not entitled to money from SCAO simply

because his intention to forgo membership in PERA was not

documented. Here, where McDivitt has, implicitly in his briefing

and more explicitly at oral argument, acknowledged his intent to

waive membership, the absence of the waiver form amounts to a

mere procedural irregularity. Ordinarily, a party is not entitled to a

remedy based on a procedural irregularity unless the irregularity

“injure[d] or harm[ed]” the complaining party. Amos v. Aspen Alps

123, LLC, 2012 CO 46, ¶ 17; see also Rags Over the Ark. River, Inc.

v. Colo. Parks & Wildlife Bd., 2015 COA 11M, ¶ 65 (“The harmless

error rule applies to judicial review of administrative proceedings,”

and therefore a plaintiff must show prejudice from an

administrative agency’s failure to follow its regulations.) (citation

omitted).

¶ 58 “Waiver” is defined as the intentional relinquishment or

abandonment of a known right. People v. Rediger, 2018 CO 32,

¶ 39. Thus, we presume that the missing or nonexistent “waiver”

21
form would have advised McDivitt of his right to membership in

PERA and informed him that, by opting out, he was relinquishing

that right. The form, therefore, would have demonstrated that

McDivitt’s relinquishment of his right to membership was knowing

and intentional.

¶ 59 But according to McDivitt’s own testimony, he knew that he

was not a PERA member during his clerkship term, and he has not

alleged that his nonmembership status was unintentional. Under

these circumstances, the court’s failure to procure McDivitt’s

signature on a waiver form did not harm or prejudice him. We will

not “elevate form over substance” and reverse the Board’s decision

based on a procedural irregularity that did not affect McDivitt’s

rights. Amos, ¶ 20.

¶ 60 The missing waiver form is not a trump card for McDivitt. The

Board determined that, notwithstanding the absence of the form,

McDivitt had likely waived membership. That determination is

supported by the record: McDivitt did not produce an enrollment

form, his personnel records show that neither he nor the court of

appeals was to make any contributions to PERA, and he has not

ever asserted that he was, or intended to be, a member of PERA

22
during his clerkship. Accordingly, the Board did not abuse its

discretion in finding that McDivitt had failed to meet his burden of

demonstrating eligibility for membership in PERA from August 1979

to July 1980.

III. Conclusion

¶ 61 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE NIETO concur.

23