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710 A.2d 4085/19/1998
tters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Brewster Academy v. Town of Wolfeboro, 142 N.H. 382, 383, 701 A.2d 1240, 1241 (1997). "When construing the meaning of statutes, we first look to the plain and ordinary meaning of the words used." Appeal of Rowan, 142 N.H. 67, 71, 694 A.2d 1002, 1004 (1997). For example, "shall" generally indicates a mandatory provision. See id.
RSA 100-A:3, V (1990) plainly states that " member shall cease to be a member if . . . he withdraws his accumulated contributions." (Emphasis added.) To return to membership, RSA 100-A:3, I (Supp. 1997) requires an individual to become a statutorily recognized teacher, permanent policeman, permanent fireman, or employee. See RSA 100-A:1, V to VIII-b (1990 & Supp. 1997). After returning to membership, an individual may receive credit for prior service by repaying the amount withdrawn plus interest. See RSA 100-A:3, VI(a)-(c) (1990 & Supp. 1997).
Thus, the clear language of RSA 100-A:3, V dictates that the petitioner ceased to be a member of the NHRS when she withdrew all her accumulated contributions in 1992. The board may only act in accord with its enabling statute, RSA chapter 100-A, which provides no statutory authority to waive the mandates of RSA 100- A:3, VI(a). See Belluscio v. Town of Westmoreland, 139 N.H. 55, 56, 648 A.2d 211, 212 (1994) ("We will not insert into a statute words that the legislature has not chosen to include."); cf. RSA 100-A:6, V (Supp. 1997) (granting the board, in the interests of Justice, authority to waive "in service" requirement for disability application if filed within one year of member's last contribution to the NHRS). Accordingly, because the statute does not vest the board with the discretion to waive the statute's directives, the petitioner's first argument is without merit.
The petitioner next argues that the NHRS owed her a fiduciary duty to inform her of her eligibility for disability retirement benefits before she acted to her detriment. "Under the common law of trusts, the [board] owes the [NHRS] members and beneficiaries a fiduciary obligation to manage the [NHRS] for the benefit of its members and beneficiaries." N.H. Retirement System v. Sununu, 126 N.H. 104, 109, 489 A.2d 615, 619 (1985). Although this duty encompasses the "power to hold, purchase, sell, assign, transfer, and dispose of any of the securities and investments" in which NHRS funds have been invested, RSA 100- A:15, I (Supp. 1997), it does not require the board to intervene and counsel each member considering withdrawal. Cf. Maxa v. John Alden Life Ins. Co., 972 F.2d 980, 985 (8th Cir. 1992) (noting that majority of courts have not imposed upon ERISA plan fiduciaries the duty to individually notify participants of the specific impact of plan's general terms upon them), cert. denied, 506 U.S. 1080 (1993). See generally RSA 100-A:15. To read RSA chapter 100-A as placing such an obligation on the NHRS would effectively render it a financial counseling and investment service, a service far more comprehensive than that required of the board in its capacity as trustee. See generally RSA 100- A:15; see also Restatement (Second) of Trusts ยง 173 comment d at 378 (1959) ("Ordinarily the trustee is not under a duty to the beneficiary to furnish information to him in the absence of a request for such information.").
Finally, the petitioner asserts that her withdrawal constituted a unilateral mistake that entitles her to rescission. Rescission is available when a unilateral mistake relates to the substance of the consideration, it occurred despite the exercise of ordinary care, en
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