COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law of Appeals

Eduardo Carballo,

Petitioner

v. Docket No. CR-06-220

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Michael J. Long, Esq.

175 Derby St, Unit 17
Hingham, MA 02043

Appearance for Respondent:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

Eduardo Carballo is appealing the March 31, 2006 decision of the Teachers' Retirement System, denying his request to participate in "RetirementPlus" (Ex. 1). He appealed timely under the provisions of G.L. c. 32 § 16(4) (Ex. 2). I heard the appeal on October 30, 2007 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

There are nine documents in evidence (Exs. 1 - 9). I marked the pre-hearing memorandum of the Teachers' Retirement System as "A" for identification and a "job description for website posting" for a position with the University of Massachusetts Lowell as a Director of College Prep Program done in August 2000 as "B" for identification. Mr. Carballo testified; there is one tape of the hearing.

The parties submitted post-hearing briefs. I added the Respondent's brief to "A" and I marked the Petitioner's brief as "C" for identification.

Findings of Fact

1. Mr. Carballo became an active member of the Teachers' retirement system on January 25, 1996 (Ex. 6).

2. On June 19, 2001, Mr. Carballo elected into the alternative superannuation retirement benefit program known as RetirementPlus (Ex. 7).

3. Mr. Carballo worked as an Educational Specialist with the Massachusetts Department of Education from June 1974 through November 1989 and was a member of the State retirement system during that period of time (Exs. 6, 7, 8 and testimony).

4. Mr. Carballo worked as Director of the College Prep Program at the University of Massachusetts ("UMass") Lowell from December 1989 through August 1996 and was a member of the State retirement system based on that service (Ex. 6 and testimony).

5. In 1989, Mr. Carballo was hired as the Director by a panel that consisted of Lawrence Public School employees; UMass Lowell officials, including Dr. Judith Boccia, the Director of Field Studies; and a few parents (testimony).

6. The College Prep Program was a grant-funded program for Lawrence high school students that was operated by UMass Lowell in conjunction with Lawrence public schools (testimony).

7. The College Prep Program was developed to address the high drop out rate in the Lawrence Public Schools. All students who participated in the program had to be enrolled in Lawrence Public Schools in grades 9 - 12 at a Lawrence Public School facility (testimony).

8. The College Prep Program offered academic subjects including: algebra, calculus, geography, and science. It was focused on under-performing students (testimony).

9. All teachers in the College Prep Program were certified teachers (testimony).

10. Mr. Carballo's duties as the Director of the College Prep Program were almost identical to those of a public school principal (testimony).

11. Mr. Carballo's duties as the Director of the College Prep Program included developing a budget, hiring and evaluating staff, handling student discipline issues, organizing lunch programs, organizing transportation, and developing the curriculum (testimony).

12. Students who graduated from the College Prep Program could apply and attend the college program of their choice (testimony).

13. UMass Lowell issued Mr. Carballo's paychecks (testimony).

14. On August 15, 1997, the State Board of Retirement transferred Mr. Carballo's deductions to the Teachers' Retirement System. The total transfer represented twenty-two years, two months, and one day of creditable service (Ex. 5).

15. On March 31, 2006, the Teachers' Retirement System denied Mr. Carballo's request to purchase creditable service with the State Board of Retirement for his work from June 30, 1974 through August 31, 1996 (Ex. 1).

16. Mr. Carballo filed a timely appeal (Ex. 2).

Conclusion and Order

The decision of the Teachers' Retirement system denying Mr. Carballo's request to include his employment at the College Prep Program as service as a "teacher" for the purposes of G.L. c. 32, § 5(4)(ii) is affirmed.

Section 5(4)(ii) reads, in pertinent part: "Such member shall have served for not less than 20 years as a teacher in order to be eligible to receive the benefit provided under this subdivision."

"Teacher" is defined in G.L. c. 32, § 1 as "any person who is employed by one or more school committees or boards of trustees or by any combination of such committees and boards…"

Mr. Carballo was not employed by a school committee or a board of trustees. He was hired by a panel consisting of employees of the Lawrence Public Schools, UMass Lowell officials, and a few parents. He was paid by UMass Lowell. He has not met his burden of proving that he was employed by a school committee or a board of trustees. The fact that his paychecks were issued by UMass Lowell that is governed by a board of trustees is immaterial.

Based on the foregoing, the decision of the Teachers' Retirement System denying Mr. Carballo's request to include his years as Director of the College Prep Program in computing the requisite 20 years as a teacher for RetirementPlus is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kimberly A. Fletcher
First Administrative Magistrate

DATED: 1/18/08


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