THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Bruce M. Challinor,

Petitioner

v. Docket No. CR-08-402

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Robert H. Minasian, Esquire
Cynthia J. Aziz, Esquire

Minasian and Aziz
127 So. Broadway, P.O. Box 346
Lawrence, MA 01843

Appearance for Respondent:

Robert G. Fabino, Esquire

Associate General Counsel
Teachers' Retirement Board
One Charles Park
Cambridge, MA 02142-1206

Administrative Magistrate:

Judithann Burke

CASE SUMMARY

Petitioner who wished to purchase his prior vocational service failed to rebut the presumption that the Invoice and accompanying letter were sent to him in February 2007. He is no longer able to purchase that service.

DECISION

Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Bruce M. Challinor, is appealing from the May 29, 2008 decision of the Respondent, Teachers' Retirement System (TRS),denying his request to purchase vocational service pursuant to G.L. c. 32 s. 4(1)(h ½). (Exhibit 3). The appeal was timely filed. (Exhibit 4). A hearing was held on September 4, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, fourteen (14) exhibits were marked. The Petitioner testified in his own behalf. The Petitioner also presented the testimony of his wife, Susan Lang. The Respondent presented the testimony of Adam Travinski, TRS Senior Service Representative. Both parties stated their arguments for the record. The proceedings were stenographically recorded. No audiotapes were made. The transcript was received at DALA on October 1, 2008 thereby closing the record.

FINDINGS OF FACT

Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, Bruce M. Challinor, d.o.b. 09-15-1951, was first enrolled in the TRS on September 1, 1978 and he has been a member since that time.

2. On March 8, 2006, the Petitioner, a teacher of culinary arts and a pastry chef, applied to the TRS to purchase his prior vocational work experience in accordance with G.L. c. 32 s. 4(1)(h ½). (Exhibit 1).

3 On February 13, 2007, the TRS notified the Petitioner that that he was eligible to purchase three years of credit for his prior vocational work experience and that it had enclosed an invoice, both via regular mail. (Exhibits 8 and 9).

4. In February 2007, the Petitioner was out of work on disability. He had undergone numerous surgeries for cancer. He was taking the prescription medication Percocet during February 2007. He was receiving a large amount of mail at his home during February 2007. (Testimony and Exhibit 4).

5. The Invoice that was sent to the Petitioner in February 2007 instructed the Petitioner that he had "180 days from the mailing date of the invoice in which to act". The Petitioner was further advised that he had to (1) purchase said service in a lump sum within 180 days of notice, or (2) to enter into an installment agreement, by August 12, 2007 (180 days from the invoice mailing date). (Exhibit 8).

6. The Petitioner neither purchased his vocational service in a lump sum nor entered into an installment agreement with the TRB on or before August 12, 2007.

7. On May 22, 2008, the TRB received the Petitioner's second application to purchase his vocational service. He indicated that he intended to retire on September 16, 2008. (Exhibit 2).

8. On May 29, 2008, the Petitioner's request to purchase his vocational service was denied because he had failed to purchase this service or enter into an installment agreement on or before August 12, 2007. (Exhibit 3).

CONCLUSION

The Petitioner is not entitled to prevail in this appeal. He has failed to meet his burden of proving that the TRB has applied the statute or regulations incorrectly in his case. He has also failed to rebut the presumption that the Invoice to purchase his vocational service and the accompanying letter were mailed to him in February 2007.

In his July 2008 letter of appeal, the Petitioner reported that he was taking medication and was in poor health in February 2007. He had a lot of mail related to his medical treatment and disability leave coming to his house during that period. He reported in one of his phone conversations with TRB staff that he wasn't paying too much attention to time requirements in February 2007 when he had much more to think about concerning his health. It is reasonably inferred, notwithstanding the recent contentions of the Petitioner and his wife, that the invoice was received and tossed aside or inadvertently thrown out during February 2007 when the Petitioner was otherwise physically and mentally preoccupied.
Unfortunately, the statute does not provide for any exceptions due to life's unforeseen circumstances. G.L. c. 32 s. 4(1)(h ½) provides:
Any member in service of the teachers' retirement system …who is or was employed as a teacher defined by section 1 in a vocational technical school or in a public school's vocational technical program approved by the department of education under chapter 74 may receive creditable service for any period or periods of prior work experience in the occupational field in which the member became a vocational- technical teacher…No credit shall be allowed until the member has paid into the Annuity Savings Fund of the system before any retirement allowance becomes effective for the member, in 1 sum, or in installments, upon the terms and conditions that the board prescribes…Members in service of a retirement system who make application for this creditable service shall be notified by the retirement board of their eligibility for such creditable service, and, if they are eligible, shall also be notified by the retirement board that they have the following options: (1) purchase said service in a lump sum within 180 days of notice, or (2) to enter into an installment agreement within 180 days of the notice to pay service. (Emphasis added).

Because the Petitioner failed to pay for the service in a lump sum or enter into an installment agreement before August 12, 2007, he is no longer entitled to purchase that service.

Accordingly, the decision of the TRB is affirmed.

So ordered.

Division of Administrative Law Appeals,

/s/
Judithann Burke,
Administrative Magistrate

DATED: July 24, 2009