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SJC-12711

PLYMOUTH RETIREMENT BOARD vs. CONTRIBUTORY RETIREMENT APPEALS BOARD & another1

Plymouth. September 5, 2019. - December 3, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher, & Kafker, JJ.

Retirement. Police, Retirement. Municipal Corporations, Police, Retirement board. Public Employment, Police, Retirement. Statute, Construction. Contributory Retirement Appeal Board.

Civil action commenced in the Superior Court Department on December 12, 2016.

The case was heard by Michael D. Ricciuti, J., on motions for judgment on the pleadings.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Andrew M. Batchelor, Assistant Attorney General, for the defendants. Michael Sacco for the plaintiff.

1 Public Employee Retirement Administration Commission. 2

LOWY, J. In this case, the parties ask that we determine

whether a police officer who is a member of a municipal

retirement system must remit payments under G. L. c. 32,

§ 4 (2), to obtain creditable service for prior work conducted

as a permanent-intermittent police officer (PIPO). A Superior

Court judge held that the Plymouth Retirement Board (Plymouth

board) did not have to collect remittance payments from such

members because G. L. c. 32, § 4 (2) (b), which expressly

discusses PIPO creditable service does not mention a payment

requirement. The Contributory Retirement Appeals Board (CRAB)

appeals, arguing that the provision, considered in the context

of the whole statute, mandates remittance payments by member

police officers for past intermittent work. We agree with CRAB

and therefore reverse.

Statutory scheme. The Legislature created a "contributory

retirement system" through which municipalities establish their

own employee retirement systems, and form "municipal retirement

boards to manage [those] systems." Retirement Bd. of Stoneham

v. Contributory Retirement Appeal Bd.,

(2016), citing G. L. c. 32, § 20 (4) (b), (5) (b). Members

contribute to the system by payroll deductions. See G. L. c.

32, § 22. Retirement system members must be "regularly

employed." Retirement Bd. of

citing G. L. c.

32, § 3 (2) (a) (x). A member's retirement benefits depend on 3

the individual's years and months of "creditable service," among

other factors. See G. L. c. 32, §§ 5, 10. Creditable service

is governed by G. L. c. 32, § 4, and includes "all service

rendered" while an employee is a member of a retirement system.

See G. L. c. 32, § 4 (1) (a).

Some service rendered prior to an employee becoming a

member of the retirement system is creditable. G. L. c. 32,

§ 4 (2) (a). Local retirement boards have "full jurisdiction"

to determine whether a new member may receive creditable service

for "part-time, provisional, . . . or intermittent employment."2

G. L. c. 32, § 3 (2) (d). A retiree's benefits depend upon the

individual's years and months of "creditable service" among

other factors. See G. L. c. 32, §§ 5, 10. Once an intermittent

employee becomes a member of the retirement system, the member

may petition the relevant local retirement board to acquire

creditable service for past intermittent work. See G. L. c. 32,

§ 4 (2) (a).

The statute permits local retirement boards to determine

how much "service in any calendar year is equivalent to a year

2 The Legislature defines an employee as someone who is "regularly employed" and "whose regular compensation . . . is paid by any political subdivision of the [C]ommonwealth," including police officers, G. L. c. 32, § 1, and part-time workers. See Essex County Retirement Bd. v. North Andover,

(1965). The Legislature has left "regularly employed" undefined.

4

of [creditable] service" and how much creditable service is

available for previous intermittent work. G. L. c. 32,

§ 4 (2) (b). However, for certain discrete employment

categories, such as permanent-intermittent police positions, the

statute limits the power of such boards to determine creditable

service by mandating specific calculations. Id. For example,

police officers must receive one year of creditable service,

with a maximum of five years, for any time spent during the

calendar year as "reserve or permanent-intermittent police

officer[s] . . . on [their] respective list[s] and eligible for

assignment to duty." Id.

To acquire creditable service for previous intermittent

work, members must remit payments "with buyback interest" in "an

amount equal to that which would have been withheld as regular

deductions" had they "been a member . . . during [that] previous

period." G.L. c. 32, § 4 (2) (c). Section 4 (2) (c) has no

express exemptions from the purchase formula.

Background and procedural history. Plymouth police officer

Antonio Gomes is a member of Plymouth's contributory retirement

system. Before becoming a permanent police officer, Gomes

served as a PIPO -- someone who worked "only on such days as [he

or she] might be called, and compensated accordingly." Costa v.

Selectmen of Billerica,

(1979). Gomes 5

actively engaged in police work and earned money for his

intermittent work.

In 1998, Gomes purchased full-time retirement credit for

his prior intermittent service, with interest. In 2003, the

Public Employee Retirement Administration Commission (PERAC)

informed the Plymouth board that under G. L. c. 32, § 4 (2) (b),

the board incorrectly had charged Gomes for the creditable

service he earned as a PIPO. Despite the policy of the Plymouth

board that member police officers must remit payments to obtain

full-time credit for previous uncredited PIPO work, the board

refunded Gomes's remitted payment, including the buyback

interest.

Ten years later, CRAB decided MacAloney vs. Worcester

Regional Retirement Sys., No. CR-11-19 (amended June 21, 2013),

ruling that member firefighters must remit payments to purchase

retirement credit for past intermittent work under G. L. c. 32,

§ 4 (2) (c). See G. L. c. 32, § 4 (2) (b) (addressing credit to

intermittent work of firefighters). As a result of the

MacAloney decision, the Plymouth board advised Gomes that he

must "remit those funds previously refunded, together with

buyback interest," in part because "it had always been the

policy of the [Plymouth board] to require members . . . who

rendered prior service as a reserve police officer to remit

contributions and interest . . . in order to receive credit 6

rendered as a reserve police officer pursuant to [G. L. c. 32,

§ 4 (2) (b)]."

Gomes appealed from the Plymouth board's determination to

the Division of Administrative Law Appeals (DALA). Siding with

Gomes, the Plymouth board shifted course and claimed that it

"disagree[d] with PERAC's interpretation of § 4 (2) (b) post-

MacAloney," and asked that DALA join PERAC as a necessary party-

defendant. DALA rejected the argument of Gomes and the Plymouth

board that the MacAloney decision did not apply to Gomes. Gomes

and the Plymouth board appealed to CRAB, which upheld DALA's

ruling and affirmed the MacAloney decision.

CRAB rejected the argument that, because G. L. c. 32,

§ 4 (2) (b), does not explicitly state that a member is required

to buy creditable service earned as a PIPO, the member is

entitled to receive the creditable service at no cost. CRAB

stated that that provision had to be considered in context, and

that G. L. c. 32, § 4 (2) (c), set forth the requisite terms of

payment for creditable service. The latter section, CRAB

pointed out, did not contain an exemption for creditable service

as a PIPO. CRAB also stated that § 4 (2) (c) listed general

types of employment or service subject to the buyback

calculation, and therefore, the absence of the specific phrase

"permanent-intermittent police officer" in that provision did

not matter. Finally, CRAB pointed out that to consider G. L. 7

c. 32, § 4 (2) (b), in isolation would produce an anomalous

result: a disincentive to become a member of the retirement

system and to be subject to regular payments via payroll

deductions. The Plymouth board sought review in the Superior

Court pursuant to G. L. c. 30, § 14.3

On cross motions for judgment on the pleadings, the

Superior Court judge accepted the Plymouth board's view that the

plain language of G. L. c. 32, § 4 (2) (b), does not require

remittance payments by member police officers for past PIPO

service because the statute states that local retirement boards

"shall credit" police officers for up to five years of prior

PIPO work. CRAB timely appealed to the Appeals Court, and we

transferred the case on our own motion. We now reverse.

Discussion. 1. Standard of review. Statutory

interpretation is "a pure question of law," and we therefore

"exercise de novo review" of CRAB's analysis (citation omitted).

Retirement Bd. of Stoneham,

. This court

"typically defer[s] to CRAB's expertise and accord[s] great

weight to its interpretation and application of the statutory

provisions" it administers, such as G. L. c. 32, § 4 (2), and

will reverse only if the "decision was based on an erroneous

3 Gomes did not appeal from the decision by CRAB. Although CRAB disputed the standing of the Plymouth board in the Superior Court, CRAB did not raise the issue on appeal. Thus, the issue is waived, and we assume that the Plymouth board has standing. 8

interpretation of law" (quotations and citations omitted).

Retirement Bd. of

See G. L. c. 30A,

§ 14 (7) (c), (e).

2. Statutory interpretation. Both parties urge that the

plain language of G. L. c. 32, § 4 (2), supports their argument.

We agree with CRAB's interpretation that § 4 (2) only makes

sense when read as a coherent whole, because this interpretation

is consistent with the statute's plain language, correctly

interprets § 4 (2) within the entire statute without creating

surplusage, and accords with the apparent legislative purpose

behind G. L. c. 32 generally and § 4 (2) specifically.

a. Plain language. When conducting statutory

interpretation, this court strives "to effectuate" the

Legislature's intent by looking first to the statute's plain

language (citation omitted). Matter of E.C.,

(2018). The express language of § 4 (2) (b) and (c)

demonstrates that the Legislature constructed the latter

provision to work together with the former. First, § 4 (2) (c)

lays out a formula for "any employee of any governmental unit"

to purchase creditable service for past intermittent employment

rendered "prior to becoming eligible for membership in a

retirement system", see Gallagher v. Contributory Retirement

Appeal Bd.,

(1976). Section 4 (2) (c)

neither announces the necessary qualifications to measure 9

creditable service nor determines the amount of creditable

service for which a member may be eligible; rather, it states

that "the board may allow [such] credit" and merely requires

payment. G. L. c. 32, § 4 (2) (c).

Additionally, the purchase formula for past intermittent

work in G. L. c. 32, § 4 (2) (c), does not exempt police

officers or any other employees from its general applicability.

Where the Legislature did not include an exception in a statute,

this court will not create one. See Joslyn v. Chang,

(2005) ("[T]he duty of the court [is] to adhere to the

very terms of the statute, and not, upon imaginary equitable

considerations, to escape from the positive declarations of the

text" [citation omitted]).

The plain language of G. L. c. 32, § 4 (2) (c),

demonstrates the Legislature's intent to apply the payment

formula without exemption to police officers for "creditable

prior service" as defined by G. L. c. 32, § 4 (2) (b). See

Matter of E.C.,

("Ordinarily, where the

language of a statute is plain and unambiguous, it is conclusive

as to legislative intent"). Where § 4 (2) (c) describes how to

purchase creditable service for previous PIPO work, § 4 (2) (b)

explains how boards can or must measure the amount of that

"creditable prior service" for intermittent work, subject to

specific criteria for categories of members, like PIPOs, to whom 10

local retirement boards "shall credit" up to five years. Colo

v. Contributory Retirement Appeal Bd.,

,

186–187 (1994). In limiting retirement boards' discretion to

measure creditable service regarding prior PIPO service, the

Legislature nonetheless did not amend the instructions for how

to obtain that creditable service found in the purchase

provisions of § 4 (2) (c). We conclude that § 4 (2) (b)

therefore is silent on payment for creditable service not

because the Legislature intended for member police officers to

receive credit for past permanent-intermittent service without

payment, but because the Legislature intended § 4 (2) (b) only

as a measurement scheme. Cf. Commonwealth v. Nascimento,

(2018) ("The Legislature's silence on a subject

cannot be ignored," especially where it had opportunity to add

language at issue [citation omitted]).

b. Statute construed as a whole. Beyond plain language,

"[c]ourts must look to the statutory scheme as a whole,"

Retirement Bd. of Stoneham,

, so as "to produce

an internal consistency" within the statute (citation omitted).

Matter of E.C., 479 Mass. at 118. Even clear statutory language

is not read in isolation. See Casseus v. Eastern Bus Co.,

(2018).

Considering the provisions of G. L. c. 32, § 4 (2), as an

interrelated whole within the larger context of G. L. c. 32 11

supports CRAB's conclusion that member police officers must

remit payments for creditable service for previous intermittent

work. Indeed, G. L. c. 32 "create[d] and describe[d] a

contributory retirement system, i.e. a system maintained" by

payments of members. Rockett v. State Bd. of Retirement,

(2010). This court thus adheres to

the legislative intent to mandate payment by interpreting the

subsections of § 4 (2) as codependent cogs within a contributory

retirement mechanism.

Each subsection of G. L. c. 32, § 4 (2) has a clear,

connected role. See L.L. v. Commonwealth,

, 178–

179 (2014) (reading statute's sections together to construe

harmonious whole). Subsection (a) demands that new members

seeking to "claim credit as provided for in" subsection (c) file

"a detailed statement of any other [past temporary or permanent]

service," and subsection (d) directs a local retirement board to

"verify [the statement] as soon as practicable" after filing.

Given the express interconnected language of § 4 (2) (a), (c),

and (d), we conclude that the Legislature did not intend for § 4

(b) to stand on its own statutory island. Subsection (b)

functions with the other provisions by providing a measurement

criteria to local retirement boards. The whole scheme, then,

operates so that subsection (d) requires such boards to verify

and certify the statement of service filed in subsection (a) as 12

soon as possible so that members who have been granted

creditable service, as determined by those boards in subsection

(b), may receive and begin paying for that service according to

the buyback formula found in subsection (c). Moreover, our

reading of § 4 (2) follows the Plymouth board's long-standing

interpretation of this section and conforms to the backbone of a

contributory retirement system: employees investing a portion

of their earnings towards a future pension.4

Not only does reading all subsections within § 4 (2)

clarify its meaning, comparing the structure and language of

§ 4 (2) against the other sections of G. L. c. 32, § 4, such as

§ 4 (1), it also elucidates legislative intent. See Scione v.

Commonwealth,

(2019), citing Ginther v.

Commissioner of Ins.,

(1998) (one well-

established rule of statutory construction compares use of

4 The CRAB decision in Grimes vs. Malden Retirement Bd., No. CR-15-5 (Nov. 18, 2016), is not inconsistent with our holding. In that decision, CRAB found that former PIPOs who were available to be called into service, yet never were, could obtain creditable service under G. L. c. 32, § 4 (2) (b), without any remittance payments, because their purchase price under the formula set forth in G. L. c. 32, § 4 (2) (c), was zero, given that they never earned any money as PIPOs. Although contributory retirement systems inevitably result in some inequities, we will not remedy possible unfairness in the face of clear legislative intent. See Housman v. LBM Fin., LLC,

(2011). Further, to the extent that this appears unfair, in 2009, the Legislature addressed such outcomes in the new G. L. c. 32, § 4 (1) (o), discussed infra. See St. 2009, c. 21, § 5. 13

language employed within different subsections of same statute).

Section 4 (1) has dozens of separate paragraphs, each of which

describes a discrete and mutually exclusive employment

circumstance, the method by which local retirement boards

measure creditable service, and the process by which employees

can obtain that creditable service. Most sections require

payment expressly, see, e.g., G. L. c. 32, § 4 (1) (q), which

permits an inference that other subsections of § 4 (1) provide

exemptions for payment for past work.5 Unlike the structure of

§ 4 (1), specifically its independent subsections, each

subsection of § 4 (2) must be read together for the statute to

make sense. The absence of an explicit payment provision in

§ 4 (2) (b) does not then operate as it would in § 4 (1),

because the payment provision of § 4 (2) (c) works alongside the

measurement criteria of § 4 (2) (b).

By reading § 4 (2) (b) in isolation, as the Plymouth board

requests, § 4 (2) (c) would be devoid of any purpose. "The

5 The Plymouth board cites to a memorandum and order by a panel of the Appeals Court that was issued pursuant to that court's rule 1:28, Lawrence Retirement Bd. v. Contributory Retirement Appeals Bd.,

(2015), to argue that G. L. c. 32, § 4 (2) (b), exempts police officers from remitting payment. Such memoranda and orders, however, have no precedential value. In any event, the case concerned G. L. c. 32, § 4 (1) (b), covering service in a governmental unit before the unit became part of the retirement system, not the provisions at issue in this case. 14

canon against surplusage is strongest when an interpretation

would render superfluous another part of the same statutory

scheme" (citation omitted). City Elec. Supply Co. v. Arch Ins.

Co.,

(2019). Section 4 (2) (b) is the sole

place in G. L. c. 32 where the Legislature instructs local

retirement boards about how to quantify the amount of credited

service available for previous intermittent work.6 If the amount

of credit to provide to a member does not derive from § 4 (2)

(b), then the purchase formula of § 4 (2) (c) would become

obsolete.

On the Plymouth board's contrary reading of § 4 (2),

subsection (c) would retain a purpose without acting as the

purchase formula for PIPO service because it would continue as

the formula for other categories of employment cited in

6 Ten sections of G. L. c. 32 mention "intermittent" employment. General Laws c. 32, § 3 (2) (a) (iv), discusses whether teachers can become members. General Laws c. 32, § 3 (2) (d), outlines the jurisdiction of retirement boards to determine whether temporary or intermittent employees can become members. General Laws c. 32, § 5 (3) (c), discusses "intermittent" in the context of how an actuary can "determin[e] the normal yearly amount of any retirement allowance in accordance" with the rest of G. L. c. 32. General Laws c. 32, §§ 85H and 85H1/2, provide for disability retirement compensation for intermittent employees. General Laws c. 32, §§ 89, 89A, 89B, and 89E, provide annuities to dependents of intermittent employees killed in the performance of duties. General Laws c. 32, § 100A, provides benefits for intermittent employees killed in the line of duty. Only G. L. c. 32, § 4, titled "creditable service," explains how boards can measure creditable time for intermittent employees. See G. L. c. 32, § 4 (2) (b). 15

subsection (b): "part-time, provisional, temporary, temporary

provisional, seasonal or intermittent." Although we have found

the statutory language to be clear, that does not mean that the

Legislature drafted it perfectly. Sometimes, it is challenging

to "harmoniz[e] the provisions" of an imperfectly crafted

statute so as to prevent surplusage. Commonwealth v. Rodriguez,

, 370–371 (2019). The drafting of § 4 (2) (b)

undoubtedly leaves room for improvement, but that imperfection

does not convince us that the Plymouth board was correct.

As the Plymouth board notes, although seasonal employees

must complete "actual full-time service" of not less than seven

months to receive a year of creditable time, local retirement

boards "shall credit" members for past PIPO service even if

members were solely on an eligibility list7 and have never

performed work while PIPOs. G. L. c. 32, § 4 (2) (b). Because

PIPOs who did not work would still receive creditable service

without any remittance, the Plymouth board infers that the

Legislature intended the same for all PIPOs. This court will

not rewrite statutory language to find a meaning contrary to

legislative intent. See King v. Burwell,

, 2492

7 According to G. L. c. 32, § 4 (2) (b), local retirement boards "shall credit" as full-time service, not to exceed a maximum of five years, the period of time that PIPOs are on an eligibility list and are "eligible for assignment to duty subsequent to [their] appointment." 16

(2015) ("inartful drafting" does not permit court to interpret

statute against clear legislative intent). Therefore, we

decline to read § 4 (2) (b) as providing up to five years of

creditable service without remittance payments to member police

officers even if they were being paid and not making

contributions to the retirement system.

The Plymouth board also contends that the provisions of

G. L. c. 32, § 4 (2) (b) and (c), do not speak to one another

regarding PIPOs because subsection (b) uses the phrase

"permanent-intermittent" employment and subsection (c) only

talks of "intermittent employment." We do not agree. First,

the introductory clauses of both subsections (b) and (c) cover

the same universe of "part-time, provisional, temporary,

temporary provisional, seasonal or intermittent employment."

"Where words in a statute are used in one part of a statute in a

definite sense, they should be given the same meaning in another

part of the statute." Hallett v. Contributory Retirement Appeal

Bd.,

(2000). Second, the parties have not

identified, and we have not found, a definition of "intermittent

employment" in G. L. c. 32 or elsewhere.8 Although § 4 (2) (b)

8 The Legislature seems not to have defined intermittent employment, even when related to permanent-intermittent police officers, see G. L. c. 31, §§ 60, 60A, but the category is often lumped with part-time employment. See, e.g., G. L. c. 30, § 46 (administration of classification and pay plans); G. L. c. 32B, 17

is the only place in G. L. c. 32 in which the phrase "permanent-

intermittent" appears, we agree with CRAB that permanent-

intermittent employment reasonably may be considered a

subcategory of "intermittent employment," a category identical

to those captured by the payment provisions of § 4 (2) (c).

Matter of E.C., 479 Mass. at 118 (where "words used are not

otherwise defined in the statute, we afford them their plain and

ordinary meaning"). Through consideration of "the ordinary and

approved usage of the language," Matter of

we

conclude that the category of intermittent employment, occurring

at irregular, noncontinuous intervals, includes a permanent-

intermittent police officer, who works as needed by the police

department. See Webster's New Collegiate Dictionary 598 (1980)

(defining intermittent as "not continuous" and "coming and going

at intervals"). See also Selectmen of Oxford v. Civil Serv.

Comm'n,

(1994).

c. Legislative history. This court interprets a statute's

plain language "in connection with the cause of its enactment"

(citation omitted). Stearns v. Metropolitan Life Ins. Co.,

(2019). Although "legislative history is not

ordinarily a proper source of construction," we use it to

augment our interpretation of the language of a statute

§ 9C1/2 (discussing insurance benefits for spouse and dependents of deceased intermittent firefighters). See also note 6, supra. 18

(citation omitted). AIDS Support Group of Cape Cod, Inc. v.

Barnstable,

(2017). The legislative history

of G. L. c. 32 generally and § 4 (2) specifically buttress our

conclusion about the meaning of § 4 (2) (b).

First, the Legislature established a special commission to

look into all retirement systems of the Commonwealth. 1945

House Doc. No. 1950. According to its 1945 report, issued a few

months before the enactment of G. L. c. 32, see St. 1945,

c. 658, the original intent of that chapter was to establish a

system where "every government employee should contribute to his

own retirement allowance" because "[n]on-contributory retirement

allowances are unsound and at variance with the generally

prevailing concept that both the employee and the employer

should furnish funds to sustain employee pension plans." 1945

House Doc. No. 1950 at 5. In addition, subsequent amendments to

the statute also reinforce legislative intent to require members

to purchase creditable service. In 1947, the Legislature

amended G. L. c. 32 to prevent certain unpaid intermittent

workers from receiving creditable time towards their retirement.

The amendment eliminated "person[s] holding a position" with

"annual compensation" at "two hundred dollars or less" from

membership eligibility. G. L. c. 32, § 3 (2) (d), as amended by

St. 1947, c. 667, § 2. The Legislature limited membership in

this way, in part, "because retirement boards will always have a 19

legitimate interest in denying membership to individuals" who

provided little service or who would pay marginal amounts into

the contribution system. Rotondi v. Contributory Retirement

Appeal Bd.,

(2012). In 2009, the Legislature

reiterated its preference that members, including PIPOs on

eligibility lists who were never called into service, remit

payments to obtain creditable service by inserting G. L. c. 32,

§ 4 (1) (o), which asserted that no "state, county, or municipal

employee" who earns less than $5,000 starting on July 1, 2009,

can accrue creditable time for that service. See St. 2009,

c. 21.

Finally, amendments to § 4 (2) (b) that added special

creditable provisions for police officers discuss "credit[ing]

. . . as full-time service" periods of permanent-intermittent

work, see St. 1964, c. 125; St. 1964, c. 738; St. 1965, c. 73,

or "count[ing] as full-time service," see St. 1966, c. 509.

None of these amendments relative to PIPOs mentions payment or

waives payment in a manner that suggests diverging from the

generally applicable language of § 4 (2) (c). We conclude that

the Legislature intended these amendments to provide former

PIPOs with creditable years of service in recognition of their

service as police officers; any PIPO who worked even the minimal

amount of qualifying work within one calendar year could receive

one year of creditable service, and local retirement boards are 20

denied any discretion to interfere.9 See G. L. c. 32,

§ 4 (2) (b). Nowhere do the amendments suggest that former

PIPOs would receive the credited time without repayment into the

retirement system for the years that they were PIPOs once they

become member police officers. The legislative history

demonstrates the legislative purpose to create a contributory

retirement system worthy of its name into which all but those

explicitly exempted must pay.

Conclusion. For the reasons stated supra, we reverse the

decision of the Superior Court and vacate the judgment. A

judgment affirming CRAB's decision shall enter.10

So ordered.

9 Until 2009, the minimal amount of qualifying work for PIPOs was zero. So long as they were on call, they could receive credit even if they were never called into duty. See note 4, supra.

10The Plymouth board has the power to waive the interest payment on its own initiative, see G. L. c. 32, § 20 (5) (c) (2), or on the petition of Gomes. See G. L. c. 32, § 20 (5) (c) (3). We thus assume that the Plymouth board will consider whether "fairness [may] dictate" that Gomes should not have to pay interest on his second purchase of creditable service. Cf. Doe v. Harbor Schools, Inc.,

(2006) (noting that where legislation is silent regarding statute of limitations, "basic fairness dictates a more flexible approach").