COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Nancy L. Ford,

Petitioner

v. Docket No. CR-06-178

Teachers' Retirement Board,

Respondent

Appearance for Petitioner:

Nancy L. Ford, pro se

P.O. Box 162
297 Mill Road
Fairhaven, MA 02719

Appearance for Respondent:

James C. O'Leary, Esq.

Teachers' Retirement Board
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G.L.c.32, §16(4), the Petitioner, Nancy L. Ford, is appealing the March 10, 2006 decision of the Respondent, Teachers' Retirement Board, denying her request for creditable service for her prior non-public school service. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held October 10, 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 - 9) One tape was used. The Petitioner testified. Both parties made arguments on the record.

FINDINGS OF FACT

1. Nancy L. Ford, d.o.b. 4/12/48, is currently employed as a teacher with membership in the Teachers' Retirement System. (Testimony)

2. Ms. Ford did substitute teaching in public schools in connection with securing her art education degree. She covered kindergarten, third, and fifth grades. She did substitute teaching covering a time period of about one and one-half years between 1983-1984. She had no membership in the Teachers' Retirement System doing this work. (Testimony)

3. Ms. Ford also held prior employment without any Teachers' Retirement System membership, at the St. Vincent's Home in Fall River, MA. She worked there September 1985 through October 1989. She worked full time as an Art Teacher. (Exs. 4, 5, 6 & 7. Testimony)

4. Ms. Ford received paychecks and was issued W-2 forms for her work, by St. Vincent's Home Corporation. She had social security deductions taken from her pay. (Ex. 6. Testimony)

5. St. Vincent's Home was a private school, and included a residential side to it. The students ranged in age from seven to seventeen years. Included was a grade school and high school program. Ms. Ford taught in both school programs. All the students had Individual Education Plans and were placed in the school through the Department of Social Services (DSS), or if older by the Division of Youth Services (DYS). They were placed at St. Vincent's as in need of residential care at a treatment facility. When Ms. Ford worked there, there were no fully privately paying or tuition paying students. Welfare funds may have helped cover the costs for particular students to be at St. Vincent's Home, along with other public funds such as from DSS and DYS. Ms. Ford participated at the Individual Education Plan meetings providing the art therapy component of a plan for any particular student. She worked along with the counselors to discuss what she saw in any particular student's art work. She would receive a profile on each student, meet with staff on the education part of the planning, as well as learn about the student's violent behaviors or medication regimens. St. Vincent's Home had a nurse on staff and a residential staff certified in CPR and First Aid. Only Massachusetts students were at St. Vincent's Home, and all were residents at the facility. (Ex. 7. Testimony)

6. Most of the students were functioning at a low level of learning for their age. They had classes in mathematics, history, science and other classes like a regular day school curriculum would include. Ms. Ford would work with a home room teacher to integrate art work into the particular lesson being taught. For the older students, she also incorporated photography into their lesson plans. (Testimony)

7. Ms. Ford sought to purchase for creditable service, her work at St. Vincent's Home. She sought to do this in May 2005. She filed with the Teachers' Retirement Board the form for purchasing prior non-public school service. She also collected background documentation about her service at St. Vincent's Home to show she was an Art Teacher working full time at a day school. She showed documentation to support how all the students had their tuition costs fully or at least partially funded by public funds, and that all attending were from Massachusetts. (Exs. 3, 4, 5, 6 & 7)

8. As of January 8, 2007, Ms. Ford is eligible to receive social security benefits upon retiring. (See, Ex. 8)

9. By letter of March 10, 2006, the Teachers' Retirement Board denied Ms. Ford's request to purchase for creditable service her work at St. Vincent's Home, finding it not eligible under G.L.c.32, §3(4A). Ms. Ford filed a timely appeal. (Exs. 1 & 2)

10. Ms. Ford provided her social security statement to the Teachers' Retirement Board, and on October 2, 2007, the Board informed her that she could not qualify to do this purchase for creditable service since she qualifies for social security benefits, and that she had social security taken out of her pay when she worked at St. Vincent's Home. (Ex. 9)

Conclusion

Ms. Ford's route to be eligible for doing a purchase for creditable service of her work at St. Vincent's Home has to come through satisfying the criteria found in G.L.c.32, §4(1)(p). She cannot seek to do this purchase through G.L.c.32, §3(4A) since this employment occurred after 1973, and that provision only addresses prior non-public school service before 1973. The criteria of Section 4(1)(p) is:

Any member … engaged in a teaching position and holds a certificate issued by the department of education … and who was previously engaged in teaching pupils
in any non-public school in the commonwealth, if the tuition of all such pupils taught was financed in part or in full by the commonwealth may … establish such service as creditable service … provided, that no credit shall be allowed and no payment shall be accepted for any service for which the member shall be entitled to receive a retirement allowance, annuity or pension from any source … and if it is found that payment has been accepted for any service for which the member is entitled to a retirement allowance, annuity or pension from any other source, the amount paid for such service with accumulated interest shall also be refunded with no retirement credit allowed.

Ms. Ford cannot satisfy the Section 4(1)(p) criteria since she is now eligible for retirement benefits from social security. This same prohibition from qualifying for doing a purchase for creditable service of prior service, is found in G.L.c.32, §3(4) (not applicable to Ms. Ford's circumstances) and in G.L.c.32, §3(4A) concerning the ability of teachers to purchase prior non-public school work if that service was rendered prior to 1973. Section 3(4A) states:

[N]o credit shall be allowed and no payment shall be accepted for any service on account of which the member shall be entitled to receive a retirement allowance or other similar payment from the nonpublic school system, the federal government or any other source.

Case law supports this outcome. In Harold Murphy v. Boston Retirement Board, CR-09-281 (DALA, 8/5/99) (CRAB, 1/14/00, affirming DALA), affirmed in Suffolk Superior Court Civil Action #00-365-F, Muse, J., (7/23/03), a Boston teacher who had worked in New York State public schools from 1961-1976, paid in May 1980, $8,602.09 to establish credit for that service through G.L.c.32, §3(4). In May 1988, he began to receive a retirement allowance from New York State. He then sought to retire in May 1995. He was denied the right to use that out of state service as creditable service toward his Massachusetts retirement. The DALA Decision explained that in 1980, there was no evidence showing he was entitled at the time of purchase to a New York State retirement benefit as there was in 1995. In Dube v. Teachers' Retirement Board, 58 Mass.App.Ct. 21 (2000), a teacher sought to purchase credit for prior teacher service through G.L.c.32, §3(4A), when at that time he qualified for social security retirement benefits as he had the requisite quarters. He had social security deductions taken from his salary for this prior teacher service, although that work did not on its own provide him with the requisite quarters needed for these social security benefits. He was found ineligible to do a purchase for creditable service under Section 3(4A).
For these reasons, the decision of the Teachers' Retirement Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate

DATED: February 1, 2008


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