COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Lynne Deane,

Petitioner

v. Docket No. CR-04-415

Teachers' Retirement Board & Plymouth County Retirement Board,

Respondents

Appearance for Petitioner Mass. Teachers Association:

Richard A. Mullane, Esq.

20 Ashburton Place
Boston, MA 02108

Appearance for Respondent Teachers' Retirement Board:

James C. O'Leary, Esq.

Teachers' Retirement Board
One Charles Park
Cambridge, MA 02142

Appearance for Respondent Plymouth County Retirement Board:

William Farmer

Plymouth Co. Retirement Bd.
South Russell Street
Plymouth, MA 02360

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G.L.c.32, §16(4), the Petitioner, Lynne Deane, appealed the determinations made by the Respondent, Teachers' Retirement Board, and by the Respondent, Plymouth County Retirement Board, to allow her less than full time creditable service for her employment between 1975-1982. (Exs. 1 & 2)

A hearing was held October 4, 2007, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G.L.c.7, §4H. Various documents are in evidence. (Exs. 1 - 12) The parties entered into some stipulations of fact. ("A") Two tapes were used. The Petitioner testified and presented of Mary L. Lewis, who had worked for the Hanson Public Schools between 1975-1978 when the Petitioner was also working for the school system. Arguments were made on the record. The Respondent, Plymouth County Retirement Board did not appear for the hearing, but Exhibit 12 is the affidavit of the Board's Administrator on how the Board determined an amount of creditable service for the Petitioner.

FINDING OF FACT

1. Lynne Deane, d.o.b. 3/19/45, worked as a third grade teacher full time for
the Hanson Public Schools for the 1966-1967 and 1967-1968 school years. ("A". Ex. 4. Testimony)

2. Ms. Deane left this job and withdrew her accumulated total deductions.
From 1968-1975 she had and raised two children born in 1968 and 1970. ("A". Testimony)

3. Ms. Deane worked at a private school during the 1974-1975 school year.
Starting with the 1975-1976 school year, Ms. Deane worked in the Hanson Public Schools as a Title I or Chapter I Tutor. She performed this service through June 1983. This was non-membership service. ("A". Exs. 3, 4, 5, 6 & 8. Testimony)

4. Ms. Deane was a Tutor in reading skills. This work was paid through a
federal grant program. Her employment as a Tutor was subject to a yearly contract. She was paid by the hour, and earned no pay and did no work over the summer months. She would apply each year for the job. This was the process followed for all the Title I or Chapter I employees. (Exs. 3 & 8. Testimony)

5. Ms. Deane worked full time for the Hanson Public Schools starting with
the 1983-1984 school year. She continued working full time through the time of her retirement. She again became a member of the Teachers' Retirement System during this time period. ("A". Testimony)

6. Ms. Deane retired effective April 1, 2004 through the Teachers'
Retirement Board. ("A". Testimony)

7. Prior to retirement, Ms. Deane sought to purchase for creditable service
her work between September 1, 1975 and June 30, 1983. ("A". Exs. 1, 2, 3, 4, 6, 8, 9 & 10. Testimony)

8. The records Ms. Deane kept on her Title I or Chapter I Tutor work were
incomplete. At the time her weekly hours worked were recorded onto time sheets. She tried without success to secure these records to show the numbers of hours per week during the school years she worked. At the start of this work she was paid about $3.50 per hour. By about the 1977-1978 school year she was earning about $5.00 per hour. (Ex. 5. Testimony)

9. Also during this 1975 into 1983 time period, Ms. Deane was
paid to perform work as a substitute teacher for the Hanson Public Schools. This was done regularly over these years, but only occasionally, and not for large uninterrupted periods of time. (Exs. 4, 5, 6, 8 & 9. Testimony)

10. The W-2 forms Ms. Deane was able to secure for the 1975-1983 time
period showed her employer each of those years was the Town of Hanson. The 1975 W-2 form showed only $80 earned. The 1976 W-2 form showed $600 earned. The 1977 W-2 form showed $1,000.23 earned. The 1978 W-2 form showed $3,018.50. The 1979 W-2 form showed $4,996.75 earned. The 1980 W-2 form showed $5,416.60 earned. The 1981 W-2 form showed $5,430.65 earned. The 1982 W-2 form showed $5,819 earned. The 1983 W-2 form showed $10,408.04 earned. Ms. Deane was working full time by September - December 1983 in the Hanson Public Schools, but from January - June 1983, she was still working as a Chapter I or Title I Tutor. (Exs. 3, 5 & 8)

11. For the years 1975-1983 as a Tutor, Ms. Deane was not found eligible for membership in the Plymouth County Retirement System because she was in a temporary part time hours position. She was not found eligible for membership in the Teachers' Retirement System because she did not satisfy the definition of teacher in G.L.c.32, §1 and was in a temporary position not working at least half time. ("A". Exs. 3, 11 & 12)

12. The only documentation the Plymouth County Retirement Board had to determine if Ms. Deane had the ability to purchase any of her Tutor service between 1975-1983 for creditable service, were her W-2 forms. The Board concluded the amounts of wages on her W-2 forms for the years 1979, 1980, 1981, 1982 and 1983 showed full years of service as a Chapter I or Title I Tutor through the close of June 1983. The Board concluded the amounts of wages on her W-2 forms for the years 1975, 1976, 1977 and 1978 showed she worked less than full time from September 1, 1975 through June 1978. (Exs. 3, 5, 8 & 12)

13. The Plymouth County Retirement Board determined how much creditable service it would accept liability for if Ms. Deane purchased this Chapter I or Title I Tutor service, by doing the following calculation:

The Board determined the number of months of credit for the years 1975 through 1978 by taking the wages indicated on the W-2 forms for each of those years and dividing that figure by the wages reported on the W-2 form for 1979. For each year the Board then approximated that result to a number of months based on the twelve months per year. (Ex. 12)

The result of this calculation for the years of part time service, using a twelve month schedule, was: "0 months for 1975, 2 months for 1976, 3 months for 1977, and 8 months for 1978," for thirteen months or "1.0833 years" of creditable service. For 1978 - June 1983, Ms. Deane received full years of creditable service for her work. (Exs. 7, 8 & 12)

14. Ms. Deane felt sure that she had worked full time hours each of the years 1975-1983 as a Chapter I or Title I Tutor other than the days she was doing substitute teaching. (Exs. 1 & 10. Testimony)

15. The Plymouth County Retirement Board reported to the Teachers' Retirement System by letter of June 11, 2001, that Ms. Deane had 5 years 1 month of creditable service the Board was willing to accept liability for. This overall total reflects working full time school years from 1979 onward through June 1983. (Exs. 3 & 12)

16. The Teachers' Retirement Board informed Ms. Deane by letter of October 17, 2003 that an estimate of creditable service she could secure though not yet verified would be:

Hanson: 9/1/1966 - 6/30/1968 = 2.0 years
Ch. 114 Maternity: 6/30/1968 - 9/1/1983 = 4.0 years
Hanson (substitute service): 9/1/1975 - 9/1/1983 = 5.25 years
Plymouth County Ret. Bd.: 1/1/1983 - 6/30/1983 = .5 years
Plymouth County Ret. Bd.: 9/1/1984 - 6/30/1987 = 3.5833 years
Hanson: 9/1/1987 - 6/30/2003 = 16.0 years (Ex. 4)

This estimate was totaled to 31.3333 years as of June 30, 2003. Ms. Deane was informed that the service 1/1/1983 - 6/30/1983 and 9/1/1984 - 6/30/1987 was to be determined based on whether the Plymouth County Retirement Board employed a twelve or ten month schedule for those time periods of employment. (Ex. 4)

17. Ms. Deane was issued on October 17, 2003 an invoice by the Teachers' Retirement Board to do a purchase for creditable service of her substitute service. (Ex. 6)

18. By letter of the Teachers' Retirement Board of January 27, 2004, the Plymouth County Retirement Board was asked to report back to the Teachers' Retirement Board if it was using a ten or twelve month schedule for determining Ms. Deane's creditable service. The Plymouth County Retirement Board responded on February 2, 2004, that it was using a twelve month schedule. (Ex. 7)

19. The Teachers' Retirement Board issued another invoice to Ms. Deane on February 10, 2004 for doing a purchase of 5.25 years of creditable service for "other MA Government Employment, Plymouth County Retirement Board, 9/1/75 - 9/31/83," contingent upon the Board determining use of a ten or twelve month schedule. (Ex. 7)

20. By letter of April 8, 2004, the Teachers' Retirement Board was informed that the Plymouth County Retirement Board would accept five years and one month of creditable service liability for Ms. Deane's part time service between 1975-1982. (Ex. 8)

21. By letter to Ms. Deane of April 8, 2004, the Teachers' Retirement Board informed Ms. Deane that she was only receiving 5.0833 years of creditable service for the time period September 1, 1975 - June, 30, 1983. (Exs. 6 & 9)

22. By letter to Ms. Deane of June 30, 2004, the Teachers' Retirement Board explained how much creditable service she was going to receive in regard to service the Plymouth County Retirement Board had accepted liability for:

The Plymouth County Retirement Board has credited you with less time than you feel you have worked. For the period of 1975-1982, the Plymouth County Retirement Board accepted liability for 5 years and 1 month of service. For the period of 12/28/82 - 6/30/83 they credited you with 6 months of service. For the period of 9/10/84 - 6/30/87 they credited you with 2 years and 5 months of service. (Ex. 2)

The Teachers' Retirement Board provided her with her appeal rights and recommended that she "contact the Plymouth County Retirement Board directly to try and resolve this issue." (Ex. 2)

23. Ms. Deane did not directly appeal this June 30, 2004 decision letter of the Teachers' Retirement Board. But, by a letter of May 20, 2004, received May 24, 2004, she filed an appeal with the Contributory Retirement Appeal Board that she was aggrieved by not receiving full time creditable service for her Chapter I or Title I Tutor work 1975-1983. She explained in her letter that she felt she had "full time service and Plymouth County Retirement Board is only giving me some of my years." (Ex. 1)

24. Ms. Deane wrote the Plymouth County Retirement Board and the Teachers' Retirement Board by letter of July 31, 2005 to assert that she should have received 8 years not 5.025 years of creditable service from the Plymouth County Retirement Board for the years 1975-1983. She again asked for reconsideration of her claim for full years of creditable service. (Ex.10)

25. The Plymouth County Retirement Board wrote to the Teachers' Retirement Board by letter of September 6, 2006 that Ms. Deane was not a member of their retirement system between September 1, 1975 - June 30, 1983, and that the Board would accept liability for only five years and one month of creditable service. (Ex. 11)

Conclusion

Timeliness of the Appeal

Upon reviewing the documents, I find that the appeal taken by Ms. Deane prior to the issuance of the Teachers' Retirement Board's letter of June 30, 2004 which contained the appeal rights to the Contributory Retirement Appeal Board (CRAB), was timely made. I conclude the appeal was timely even though Ms. Deane produced a letter of appeal dated May 20, 2004, which was also filed on May 24, 2004. That is over one month before the Teachers' Retirement Board issued its letter of decision containing the rights to appeal. The findings made demonstrate that by May 20, 2004, Ms. Deane was aware that she would not be receiving full time creditable service for her work as a Chapter I or Title I Tutor in the Hanson Public Schools from 1975-1982, which is the issue she has appealed. She understood at that point that the Plymouth County Retirement Board was determining the amount of creditable service she would receive. Nothing in the record shows Ms. Deane received a letter of decision with her rights to appeal from the Plymouth County Retirement Board. In fact, the Teachers' Retirement Board relied upon the determination of the Plymouth County Retirement Board as to the amount of creditable service Ms. Deane would receive for a purchase of her prior non-membership service as a Chapter I or Title I Tutor. Under these set of circumstances, I find Ms. Deane made an acceptable timely appeal to CRAB without a need on her part to have filed a second letter of appeal in reaction to the June 30, 2004 letter of decision of the Teachers' Retirement Board.

Merits

The reliance upon what the Plymouth County Retirement Board found in the W-2 forms showed is proper. No evidence was presented to show that Board improperly read the figures shown on those forms. Ms. Deane argued that she worked as a Chapter I or Title I Tutor full time during the various school years between 1975-1983 other than on the days she worked at a substitute teacher, and that the amounts reflected in the early years W-2 forms cannot be correct. She recalled how she had started out earning only about $3.50 per hour, but later on reached a level of about $5.00 per hour. She presented the testimony of a co-worker at the time, Mary Lewis, to corroborate her testimony about working full time. Ms. Lewis testified that she recalled seeing Ms. Deane routinely working as a Tutor during this time period. Ms. Lewis, though, did not directly work with Ms. Deane, and as a music teacher during this time period worked in a number of school buildings. I conclude that her testimony is insufficient to prove Ms. Deane worked full time school year during the early years of this Tutor work. I conclude that despite Ms. Deane's recollections, the W-2 forms for each of these years are the proper evidence to use to determine if she worked part time or full time hours during these years. Her evidence that they do not all reflect her actual hours worked as a Chapter I or Title I Tutor, is insufficient to overcome sound reliance upon them as the best evidence of her full time or part time work as a Tutor. This is particularly the case since she could not produce the time sheets or other underlying payroll records to show the actual hours she worked toward refuting the accuracy of the W-2 forms. See, Brandwein v. Teachers' Retirement Board, Suffolk Superior Court Civil Action No. 03-01904 (Ball, J.) (8/17/06) (Ms. Brandwein's testimony to the contrary could not overcome the actual payroll records of her employment that were relied upon to determine her creditable service.)

I further conclude that the formula employed by the Plymouth County Retirement Board to determine the amount of creditable service Ms. Deane would receive for those part time work years is also proper, supportable, and fair in terms of the criteria that Board employed in finding her work 1975-1982 to have been part time work in a temporary position not subject to Plymouth County Retirement System membership. The Plymouth County Retirement Board is able to use a twelve month schedule and not the ten month schedule in determining Ms. Deane's creditable service for this non-membership time period. Using the full service year of 1979, the year closest to the years of part time service, and then determining for each of the years 1975-1978 the percentage of 1979 service those years showed, is proper, supportable, and fair. (See, Ex. 12)

But, determining the amount of creditable service Ms. Deane can secure for this prior 1975-1982 part time work, is subject to 807 CMR 3.03, a regulation of the Teachers' Retirement Board addressing "Non-Membership Public Service." It reads:

(1) Except as provided in 807 CMR 10.00, the Board will allow proportional credit for any period of non-membership service rendered in a Massachusetts governmental unit, the purchase of which is authorized under M.G.L. c. 32,
§ 3(5) or 4(2)(c). Any such purchase will be allowed only after submission of documentation satisfactory to the Board. Such non-membership service includes, but is not limited to, service as a teacher on a per diem substitute basis or on any other basis that is less than half time.

(2) Proportional Credit means that for any year during which the member was ineligible for membership in a contributory retirement system and service was rendered as an employee on a part time, provisional, temporary, temporary provisional, seasonal or intermittent basis for a Massachusetts governmental unit, after purchase the member will receive as creditable service that percentage of full time credit equal to a fraction, the numerator of which is the number of days or hours actually worked during that year, and the denominator of which is the number of days or hours that would have been worked by a full time employee during that year as determined by the Board.

(3) The member may purchase less than all non-membership service available
for purchase; provided, however, that in such event the member must purchase
the most recent time first.

(4) 807 CMR 3.03 shall apply to members whose effective date of retirement is after May 24, 2001.

The outcome of Ms. Deane's appeal can be found in the recent case of Fleck v. Teachers' Retirement Board, CR-04-490 (DALA, 3/22/06) (No CRAB Decision). A current Teachers' Retirement System member had been a Teacher's Aide in the Falmouth Public Schools from September 1972 to December 1976. She worked sporadic hours of as few as eighteen in one month to as many as one hundred eighty-eight in another month. She ended up with a total of 3417 hours for this time period, and was found by the Falmouth School Department to have worked 60-70% of full time. The Falmouth Retirement Board utilized a twelve month schedule to determine the amount of creditable service it would accept liability for and computed at total of one year and eight months. Ms. Fleck's Teacher's Aide work was found to be temporary, and not eligible for Falmouth Retirement System membership. But, 807 CMR 3.03 was applicable since Ms. Fleck was seeking to retire after May 24, 2001 as per 807 CMR 3.03(4), and this changed the outcome. The Teachers' Retirement Board was found not able to use the Falmouth Retirement Board's twelve month schedule to determine the amount of creditable service Ms. Fleck could receive for this prior service, and instead had to use its ten month schedule. Ms. Fleck had sought this creditable service through G.L.c.32, §3(5) since she was retiring through her membership in the Teachers' Retirement System. 807 CMR 3.03(1) refers to this regulation as being applicable when creditable service is sought through Section 3(5). This resulted in more creditable service than she would have received if the Falmouth Retirement System's calculation had been used.

There is no fundamental difference in the circumstances between Ms. Fleck and Ms. Deane. Therefore, as per the reasoning of Fleck, supra, Ms. Deane's creditable service for the 1975-1982 part time non-membership work period for a public school system has to be calculated employing a ten month schedule, and not the twelve month scheduled the Plymouth County Retirement System employed. As was noted in Fleck, supra, this result is due to the applicability of 807 CMR 3.03, and seeking creditable service through Section 3(5), with the member having a retirement date after May 24, 2001.

For these reasons, the case is remanded to the Teachers' Retirement Board for recalculating the amount of the part time creditable service employing a ten month schedule, but otherwise relying upon the calculation of the Plymouth County Retirement System.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate

DATED: February 5, 2008


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