COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Michael Brown,

Petitioner

v. Docket No. CR-04-440

Mass. Water Resources Retirement Board,

Respondent

Appearance for Petitioner:

Michael W. Brown, pro se

156 Trapelo Road
Belmont, MA 02478

Appearance for Respondent:

Thomas F. Gibson, Esq.

2400 Massachusetts Avenue
Cambridge, MA 02140

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Michael Brown filed a timely appeal under G. L. c. 32, s. 16 (4) of the May 21, 2004 decision of the Massachusetts Water Resources Authority Retirement System to deny his request to purchase credit for service rendered under an 03 account, and later as an employee of an employment agency, TAD. (Exs. 1, 2)

I held a hearing on January 3, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 8) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified. There is one cassette tape of the hearing.

FINDINGS OF FACT

1. Michael Brown, d.o.b. 8/17/1947, is an employee of the Massachusetts Water Resources Authority (MWRA) and a member in service of the MWRA Retirement System. ("B")

2. From May 1984 through September 1985 Mr. Brown worked on an 03 contract as the Deputy Commissioner for the Department of Public Welfare. (Ex. 7)

3. From September 1985 through March 1988 Mr. Brown was employed as the Assistant Director of Systems Administration for the Department of Public Welfare. He was paid by funds from the Temporary Assistance Department (TAD) Program. Mr. Brown's paychecks were issued by TAD. (Ex. 7, Testimony)

4. Mr. Brown was not eligible for membership in the State Retirement system based on his 03 employment, or his TAD employment. (Ex. 8)

5. On March 14, 1988 Mr. Brown became employed by the MWRA, and became a member of the MWRA Retirement System. (Ex. 6)

6. On June 4, 1987 the MWRA Retirement System passed a regulation providing that "[e]mployees of a temporary nature found to be ineligible for membership in a Governmental unit covered under Chapter 32 can purchase past service upon becoming a permanent employee. … Creditable Prior Service is defined as: service as an employee in any governmental unit prior to the date the retirement system became operative and for which credit is allowable to any member under the provisions of [Chapter 32.]"

CONCLUSION AND ORDER

The decision of the MWRA Retirement System to deny the request of Michael Brown to purchase credit for his work under an 03 contract from 1984-1985, and his work for TAD from 1985-1988, is affirmed.

G. L. c. 32, s. 3(5) provides in pertinent part:

[A]ny member of any system who had rendered service as an employee of any governmental unit other than that by which he is presently employed, in a temporary, provisional or substitute position and who was excluded from membership by the rules of any board, may, before the date any retirement allowance becomes effective for him, pay into the annuity savings fund of the system … an amount equal to that which would have been withheld as regular deductions from his regular compensation for such previous period … had such service been rendered in the governmental unit by which he is presently employed … (emphasis supplied)

The definition of employee in G. L. c. 32, s. 1 specifically excludes, since its amendment in August 1973, "any person whose compensation for service rendered to the commonwealth is derived from the subsidiary account 03 of the appropriation of any … agency …" The Petitioner may not therefore purchase credit for his service under an 03 account from 1984 to 1985 because he was not an employee.

The Petitioner may not purchase credit for his work for TAD from 1985 to 1988 because the definition of employee in G. L. c. 32, s. 1 "as applied to persons whose regular compensation … is paid by any political subdivision of the commonwealth … shall mean any person who is regularly employed in the service of any such political subdivision …". Although the Department of Public Welfare is an agency of the commonwealth, the Petitioner was not paid by the Department of Public Welfare. He was paid by TAD, which is not a political subdivision of the commonwealth.
The Petitioner is therefore not eligible to purchase credit for his work for TAD because he did not render service as an employee.

The Petitioner argues that the regulation passed by the MWRA Retirement System in June 1987 renders him eligible to purchase credit for his past, temporary employment since he is a permanent MWRA employee. This argument fails. The regulation defines "creditable prior service" as "service as an employee in any governmental unit…" The Petitioner was not an employee in any governmental unit from 1984 to 1988, as previously discussed, so he is not eligible to purchase credit for his service under this regulation.

The decision of the MWRA Retirement System is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 3/11/08


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