THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Henry Erelli,

Petitioner

v. Docket No. CR-06-602

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Pro Se

44 Rustic Lane
Reading, MA 01867


Appearance for Respondent:

James C. O'Leary, Esquire

Deputy General Counsel
Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Henry Erelli, is appealing from the August 26, 2006 decision of the Respondent, Teachers' Retirement System (TRS), denying his request to include monies he earned for working an additional two days during the school years 2003-2006 as regular compensation for retirement purposes.

(Exhibit 1). The appeal was timely filed. (Exhibit 2). A hearing was held on March 27, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, five exhibits were marked. The Petitioner testified and argued in his own behalf. The TRS stated its argument for the record. One tape was made of the proceedings.

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, Henry Erelli, is a retired member of the TRS with an effective retirement date of July 1, 2006.

2. Prior to his retirement, the Petitioner worked as the Coordinator of Community Services in the Brookline Public Schools. This position was covered by the 2003-2006 teachers' collective bargaining agreement (CBA), and the Petitioner was paid in accordance with the salary schedule set forth in the CBA. (Exhibit 3).

3. The Petitioner also performed the additional duty of Time and Learning Coordinator. Both this additional duty and the stipend for it appear in Appendix B, Section B2 of the 2003-2006 CBA. (Exhibits 3 and 4).

4. The number of additional days spelled out in the CBA is five at the per diem rate of the Time and Learning Coordinator. The amount of pay representing these five days was included in the Petitioner's regular compensation when his retirement allowance was calculated. (Exhibits 1, 3 and 4).

5. On February 15, 2007, Stephen Barrasso, Director of Human Resources in the Brookline Public Schools, reported to DALA First Magistrate Fletcher that an internal document was generated on December 17, 2003 that authorized a change in the number of additional days of the Time and Learning Coordinator from five to seven. Mr. Barrasso indicated that this provision could not be included in the then-current CBA, as that document became effective on September 1, 2003. (Exhibit 5).

6. In a letter dated August 26, 2006, the TRS notified the Petitioner that it would only include monies earned for five additional days in his regular compensation. (Exhibit 1).

7. The Petitioner filed a timely appeal. (Exhibit 2).

CONCLUSION

After a careful review of the testimony and documents in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal. G.L. c. 32 s. 5(2)(a) provides that a superannuation retirement allowance shall be "based on the average rate of regular compensation received by such member" during the member's last three (3) years, or highest paid three (3) consecutive years of creditable service.

G.L. c. 32 .s. 1 defines "regular compensation" as:

salary, wages, or other compensation…lawfully determined for the individual service of an employee…In the case of a teacher employed in a public day school who is a member of the teachers' retirement system, salary payable under the terms of an annual contract for additional services in such a school…shall be regarded as regular compensation…

807 CMR 6.01 and 807 CMR 6.02 became effective on May 6, 1994.

807 CMR 6.01 provides:

For the purpose of 807 CMR 6.00, an annual contract shall have the following meaning: In the case of a teacher, the annual contract is the collective bargaining agreement for the unit which governs the rights of the members whether it is a one-year or a multi-year agreement…

807 CMR 6.02(1) provides:

(1) The term regular compensation as defined by G.L. c. 32 s. 1 and further defined by 840 CMR 15.03 shall include:…
(b) Salary payable under the terms of an annual contract for additional services so long as:

  1. The additional services are set forth in the annual contract;…
  2. The remuneration for these services is provided in the annual
    contract;…

The Petitioner's two additional days of service as Time and Learning Coordinator during the 2003-2006 school years cannot be deemed to have been "set forth" in the collective bargaining agreement, notwithstanding the December 2003 side letter. The remuneration for seven, rather than five additional days in this role is not set forth in the annual contract, the CBA.

In Henry Kozlowski v. Contributory Retirement Appeal Board, 61 Mass. App. Ct. 783, app. Rev. denied 442 Mass. 1112 (2004), Mr. Kozlowski was a high school science teacher from 1964 until his June 1999 retirement. He performed his regular teaching duties as well as serving as audio-visual coordinator for which he was paid an annual stipend. In the collective bargaining agreement in effect through August 1993, the stipend for the audio visual coordinator was listed. Although Mr. Kozlowski performed as the audio visual-coordinator during the years 1993-1996, the collective bargaining agreement for those years did not list a stipend for that position because it was inadvertently omitted. The Teacher's Retirement Board declined to include the stipends as part of Mr. Kozlowski's regular compensation.

The Massachusetts Appeals Court held: "[W]hether the omission was inadvertent or not, the position of audio-visual coordinator was simply not included in the relevant collective bargaining agreements under which Kozlowski worked for the three (3) year period that was the basis for his pension calculation". The Court held that, "to be eligible for inclusion in the pension calculation, the additional service stipend must have been provided for in the collective bargaining agreement".

Since the stipend paid for the Petitioner's services of Time and Learning Coordinator during the 2003-2006 school years was listed in the CBA as five, not seven, additional days, the decision of the TRS that the additional two days are not part of his regular compensation for the purpose of calculating his retirement allowance is hereby affirmed.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: June 12, 2008


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