COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Leslie DePaolo,

Petitioner

v. Docket No. CR-07-237

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Matthew D. Jones, Esq.

Massachusetts Teachers Association
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

James O'Leary, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142-1206

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

Leslie DePaolo is appealing the March 14, 2007 decision of the Teachers' Retirement System ("TRS") that her post-retirement cap as a dual member retiree is set based on the salary of her former position as a teacher, rather than on the combined salaries used to calculate her dual member retirement allowance. She appealed timely under the provisions of G.L. c. 32, § 16(4) (Exs. 1 and 2). Pursuant to 801 CMR 1.01(10)(c), Ms. DePaolo waived her right to a hearing and the matter was decided on documents.

The following documents are in evidence:

Ex. 1 - 3/14/07 email from TRS (decision letter);
Ex. 2 - 3/16/07 claim of appeal;
Ex. 3 - 1/12/07 letter from Attorney Jones to TRS;
Ex. 4 - 10/31/06 letter from TRS to Attorney Jones;
Ex. 5 - 5/19/06 letter from Attorney Jones to TRS;
Ex. 6 - 4/3/06 retirement application, Part 1 and Part 2;
Ex. 7 - 4/24/06 employment verification letter from Arlington public schools;
Ex. 8 - W-2 forms from Arlington public schools for 2001 - 2005;
Ex. 9 - 5/8/06 employment verification letter from Framingham State College;
Ex. 10 - W-2 forms from Framingham State College for 2001 - 2005;
Ex. 11 - 6/20/05 arbitrator's award;
Ex. 12 - 12/16/05 settlement agreement; and
Ex. 13 - 11/7/07 affidavit of Leslie DePaolo.

The following documents are marked for identification: as "A," Petitioner's Request to Waive Hearing and Motion for Summary Decision; as "B," Respondent's Brief in Lieu of Hearing; and "C," the January 29, 2008 letter from Attorney Jones that closed the record.

Findings of Fact

1. Leslie DePaolo, d.o.b. 1/21/48, was employed as a full-time teacher in the Winchester Public Schools, and, as a result of that employment, was a member of the Teachers' Retirement System (Ex. 13).

2. The Winchester Public Schools attempted to dismiss Ms. DePaolo from her teaching position effective October 5, 2001. That action was grieved and arbitrated under the applicable collective bargaining agreement. She was reinstated by an arbitrator, who found that the Winchester Public Schools lacked "just cause" for her dismissal (Exs. 11 and 13).

3. Under an award dated June 20, 2005, the arbitrator granted Ms. DePaolo back pay and benefits for the period between the attempted dismissal and the arbitrator-ordered reinstatement (Exs. 11 and 13).

4. The Winchester Public Schools paid Ms. DePaolo's retirement contributions to the Teachers' Retirement System for the years 2001 through 2006 as a result of the arbitrator's award (Ex. 11).

5. During the school year 2005 - 06, Ms. DePaolo was on a paid, authorized leave of absence from the Winchester Public Schools (Ex. 5).

6. From September 2001 through June 2006, Ms. DePaolo was employed by the Town of Arlington and was a member of the Arlington Retirement System. She held two paraprofessional positions: (1) as an instructional day teaching assistant from November 2001 through June 2005; and (2) as a part-time afterschool program staff teacher from September 2001 until on or about June 30, 2006 (Exs. 7 and 13).

7. On or about June 29, 2006, Ms. DePaolo resigned from her position with the Town of Arlington. Her membership in the Arlington Retirement System and her contributions on deposit in that system were then transferred to the Teachers' Retirement system (Ex. 13 and B).

8. On June 30, 2006, Ms. DePaolo resigned from her Winchester position (Ex. 13 and B).

9. Effective June 30, 2006, Ms. DePaolo retired under the enhanced alternative retirement program provided for in G.L. c. 32, § 5(4), "RetirementPlus." Her superannuation retirement allowance was calculated as a "dual member" of both the Teachers' and Arlington Retirement Systems, using the regular compensation from the Arlington afterschool program (Exs. 4 and 6).

10. Since 1993, Ms. DePaolo has been an adjunct faculty member at Framingham State College. Whether or not the earnings cap of G.L. c. 32, § 91(b) is calculated using only her salary from her Winchester position affects whether or not she continues employment at Framingham State College (Ex. 13).

11. At some point, James Salvie, General Counsel to the Teachers' Retirement System, told Ms. DePaolo's attorney, Attorney Jones, that he believed that the appropriate cap under G.L. c. 32, § 91(b) was determined by the salary for the teaching position in Winchester, since Ms. DePaolo's dual member retirement was implemented by resignation from her Arlington position and the transfer of membership to the Teachers' Retirement System; thus, the "position from which [s]he was retired" was her Winchester teaching position

12. On January 12, 2007, Attorney Jones wrote to Attorney Salvie asking about the earnings cap. Attorney Jones stated that a cap calculated using both Ms. DePaolo's Winchester position and the earnings from Arlington would be most appropriate and equitable (Ex. 3).

13. On March 9, 2007, Attorney Jones emailed Attorney Salvie: "Dr. DePaolo asked me to see if there's any response to my attached 1-12-07 letter. She has an opportunity to teach part-time at a state college and whether it makes sense to take the position depends of the amount of the cap" (Ex. 1).

14. On March 14, 2007, Attorney Salvie emailed back saying that the "original decision stands" and Ms. DePaolo appealed (Exs. 1 and 2).
Conclusion and Order

The decision of the Teachers' Retirement System is reversed. The earnings cap of G.L. c. 32, § 91(b) for Ms. DePaolo, a dual member, is determined by the salaries of both her full-time Winchester position and her part-time Arlington position .

General Laws, c. 32, § 91(b) provides that a retiree receiving a retirement allowance may be employed in public service "provided that the earnings therefrom when added to any pension or retirement allowance he is receiving do not exceed the salary that is being paid for the position from which he was retired or in which his employment was terminated." It is true that this provision refers only to a single position, not positions. But § 91(b) should be read together with the provisions addressing dual membership.

Section 3(7)(a) of Chapter 32 states:

Any person employed by two or more governmental units which have
established contributory retirement systems…shall…become a member
in service of each such system to which he is eligible by reason of his
employment in such governmental units and shall receive pensions,
retirement allowances or other benefits from each such system according
to the applicable provisions of such sections…

Section 3(7)(b) provides:

In no event shall the total benefits received by such member from all
such systems be greater than he would have received had his total
regular compensation been received from a single governmental unit.
The amount of any pension, retirement allowance or other benefit
to be paid on account of any person who is a member of two or more
such systems shall be computed and paid in such proportions as may
be ordered by the actuary. No pension or retirement allowance shall
become effective on account of any such person's membership in one
system until the date the member terminates his service in any other
governmental unit…

Section 3(7)(d) provides, in pertinent part:

…In no event shall any member be eligible to receive a retirement
allowance from one system while continuing in service in any
governmental unit…

Because of these provisions, Ms. DePaolo was precluded from receiving a retirement allowance from the Teachers' Retirement System until she had retired from her position as an afterschool program staff teacher in Arlington. I conclude that although G.L. c. 32, § 91(b) uses the singular "position," that mere fact does not mean that a dual member cannot use both salaries in the computation of the salary cap. To hold otherwise would plainly penalize dual members.

Although Ms. DePaolo's dual membership involved full-time service and part-time service, there are undoubtedly many cases of dual members with part-time service in two or more systems. To adopt the interpretation of the earnings cap provision as argued by the Teachers' Retirement System would mean that part-time dual members would face severe constraints on their post-retirement public earning potential.

The principle embodied in G.L. c. 32, § 3(7) is that a retired public employee may obtain pension and employment income from Massachusetts public sources that is equal to what she would earn in the position in which she was employed before retirement. There is no question that this principle applies to "single" retirement system members and there is no reason to believe that the Legislature did not intend this principle to apply equally to dual members.

Based on the foregoing, the decision of the Teachers' Retirement System is reversed and it is directed to use both the Winchester position and the Arlington afterschool program staff teaching position in the calculation of the earnings cap of G.L. c. 32, § 91(b).

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Kimberly A. Fletcher
First Administrative Magistrate

DATED: 5/9/08


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