COMMONWEALTH OF MASSACHUSETTS



Suffolk, ss. Division of Administrative Law Appeals


MARY ANN GAZILLO,


Petitioner


v. Docket No. CR-06-120


STATE BOARD OF RETIREMENT,

Respondent

Appearance for Petitioner:

Mary Ann Gazillo, R.N., pro se

12 C Mansion Woods Drive
Agawam, MA 01001


Appearance for Respondent:

Melinda E. Troy, Esq.

Associate General Counsel
State Board of Retirement
1 Ashburton Place, Rm. 1229
Boston, MA 02108

Administrative Magistrate:

Mark L. Silverstein, Esq.

DECISION


Petitioner Mary Ann Gazillo appeals, pursuant to M.G.L. c. 32, § 16(4), from a January 27, 2006 decision of respondent State Board of Retirement denying her request to purchase creditable service (Exh. 1) from August 1, 1969 to June 30, 1977, when she was employed as an instructor in medical/surgical nursing at the Holyoke Hospital School of Nursing, on the ground that this institution was not a "governmental unit" during that time. See M.G.L. c. 32, § 4(1)(a).

The appeal was timely filed. I held a hearing, pursuant to M.G.L. c. 7, § 4H, on May 15, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, Massachusetts. Ms. Gazillo testified on her own behalf. The Board presented no witnesses. There is one cassette tape of the hearing. I admitted a total of 17 exhibits into evidence, 15 of them at the hearing (Board Exhs. 1-11, and Ms. Gazillo's Exhs. A-D). I left the record open for the receipt of posthearing memoranda, which were filed by Gazillo on May 16, 2008 (Gazillo Exh. E) and by the Board on May 19, 2008 (Board Exh. 12). Relative to the status of the Holyoke Hospital School of Nursing, the Board also submitted (as part of its memorandum), per my request prior to the close of the hearing, documents identifying facilities operated currently by the Department of Public Health (DPH) and by the Department of Mental Health (DMH), and facilities operated formerly by DPH or DMH that are now closed.

For the reasons set forth below, the Board's decision is affirmed.

Findings of Fact

Based upon the testimony and evidence presented, I make the following findings of fact:

1. Petitioner Mary Ann Gazillo, d.o.b. July 26, 1944, is a Massachusetts Registered Nurse who was employed by Holyoke Community College, a public two-year community college in Holyoke, Massachusetts, as an Instructor of Nursing from August 27, 1979-at which time she also joined the State Retirement System-until December 31, 2003, when she retired pursuant to an early retirement incentive program. (Gazillo testimony; Exhs. 3, 7, 8; Board's post-hearing memorandum, at attachment entitled "Retirement Board - Service Dates.")

2. Before starting work at Holyoke Community College, Ms. Gazillo worked as a staff Registered Nurse at Holyoke Hospital between the summer of 1977 and August 1979, and obtained a masters degree in nursing from the University of Connecticut in 1979. (Gazillo testimony; Exh. 7.)

3. Ms. Gazillo was employed by the Holyoke Hospital School of Nursing (HHSN) as an instructor in medical/surgical nursing from August 1, 1969 to June 30, 1977, when HHSN closed. (Gazillo testimony; Exh. 6: Letter, Hank J. Porten, President, Holyoke Hospital, Inc. to State Board of Retirement, dated December 17, 2003; copy of Annual Report for Holyoke Hospital School of Nursing for 1977, filed with Commonwealth of Massachusetts Board of Registration in Nursing.)

4. Ms. Gazillo contributed to Social Security throughout her employment at HHSN. (Exh. 6: copy of Social Security Administration records.)

5. HHSN's academic catalogues from the period 1969-77 described Holyoke Hospital as a voluntary, not-for-profit institution established in 1891, and HHSN as a school maintained by Holyoke Hospital. The catalogues gave the following description of HHSN, which is not contradicted by either of the parties or by any other evidence in the record:

The School of Nursing was established in 1893. Since the first class of six students completed the program in 1895, over 1100 graduates have become active members of the nursing profession. Through an arrangement with Holyoke Community College, first year students are enrolled at the College for courses in the biological, physical and behavioral sciences. A total of 21 credits are earned and may be submitted for consideration for transfer should the student elect further educational preparation. College classes are offered concurrently with nursing and other related health science courses given at the School of Nursing. In addition the school utilizes the facilities at Providence Hospital for experience in Maternal and Newborn Nursing and at the Northampton State Hospital for experience in Psychiatric Nursing. Other health agencies and community resources are used throughout the program to enhance the students' learning and experience. The School is approved by the Massachusetts Board of Registration in Nursing and is accredited by the National League for Nursing.

(Exh. A, at 3; Exh. C, at unnumbered first page.)

6. Neither Holyoke Hospital nor HHSN appears on the list of currently-operating DPH facilities or DMH state hospitals and programs, or on the list of closed facilities operated formerly by DPH or by DMH. (Attachments to Board's post-hearing memorandum.)

7. Neither Holyoke Hospital nor HHSN was within the retirement system administered by the Holyoke Retirement Board, and Ms. Gazillo was not a member of the Holyoke Retirement System while she was employed as a staff nurse at Holyoke Hospital between the summer of 1977 and August 1979. (Exhs. 4, 5.)

8. On or about August 28, 2003, Ms. Gazillo filed, with the State Board of Retirement, a request to purchase her time working at HHSN (from August 1, 1969 to June 30, 1977) as creditable service. (Exh. 3.)

9. Ms. Gazillo renewed this request on December 30, 2005, after she had retired from Holyoke Community College. (Exh. 7.)

10. The Board voted on January 26, 2006 to deny Ms. Gazillo's request because "it was not clear" that Ms. Gazillo was employed in a governmental unit while she worked at HHSN, and it notified her of this decision by letter dated January 30, 2006. (Exh. 10.)


Discussion

Because Holyoke Hospital School of Nursing was not a governmental unit and the tuition of its students was not financed in part or in full by the Commonwealth, Ms. Gazillo's service at HHSN was not creditable service under M.G.L. c. 32, § 4(1), and cannot be purchased as such.

1.


As a faculty member at Holyoke Community College from September 1979 until December 31, 2003, Ms. Gazillo was an employee included in a retirement system subject to M.G.L. c. 32 and was, per M.G.L. c. 32, § 4(1)(a), a "member in service" who was entitled to be "credited with all service rendered by [her] in any governmental unit after becoming a member" of the pertinent retirement system (emphasis added). M.G.L. c. 32, § 1 defines "governmental unit" as:
the commonwealth or any political subdivision thereof, except that a teacher who is a member of, or eligible for membership in, the teachers' retirement system shall, for the purpose of membership and the requirements in connection therewith, be deemed to be employed by the same governmental unit.

As an employee of Holyoke Community College, which was unquestionably a governmental unit, Ms. Gazillo was a member of the Massachusetts State Employees Retirement System administered by the State Board of Retirement and governed by M.G.L. c. 32. Per M.G.L. c. 32, § 4(1)(a), Ms. Gazillo was entitled to be credited with all service that she rendered at Holyoke Community College after she began work there and became a member of the Massachusetts State Employees Retirement System. Her retirement allowance reflects full credit for this service.

That much is undisputed. The issue before me is, instead, whether Ms. Gazillo's prior employment at Holyoke Hospital School of Nursing between August 1, 1969 and June 30, 1977 qualifies as creditable service under M.G.L. c. 32, § 4(1)(a). It would qualify, clearly, if HHSN was one of the Commonwealth's public institutions of higher education and therefore a governmental unit, but there is no evidence that it was. The HHSN catalogues (Exhs. A and C) do not identify the nursing school as part of the Commonwealth's system of higher education or as a public college, however, and describe it, instead, as an voluntary, not-for-profit school that was accredited as an independent institution.

The catalogues also describe an arrangement that allowed HHSN students to take courses at Holyoke Community College that HHSN would credit and that could also be "submitted for consideration for transfer" if an HHSN student elected to pursue further education at the community college (see quoted portion of catalogue above, at 3-4). Undoubtedly, this academic arrangement was beneficial to independent HHSN and to public Holyoke Community College alike and, as well, to HHSN students who later attended the community college. Undoubtedly as well, the Commonwealth benefitted (as Ms. Gazillo argued) from having a corps of registered nurses who received professional training at HHSN that neither Holyoke Community College nor any other unit of the Commonwealth's higher education system offered at the time. Yet neither the arrangement between HHSN and the community college nor the important role that HHSN played in educating the Commonwealth's professional nurses transformed HHSN into one of the Commonwealth's public institutions of higher learning. Those institutions are defined, as they have been historically, by the legislature alone. See M.G.L. c. 15A, § 5 (listing, by name, the public institutions comprising the higher education system, including Holyoke Community College); see also M.G.L. c. 15A, § 10 (defining "community college" by name, including Holyoke Community College). Ms. Gazillo did not direct my attention to any historical version of Chapter 15A or to any other prior law that identified HHSN as a public institution of higher learning or as a community college, and I have found none. Similarly, Ms. Gazillo did not identify, and I did not find, any current or prior law subjecting HHSN to control either by the board of trustees of the Commonwealth's higher education institutions or by a community college or state college board whose powers and duties are prescribed at M.G.L. c. 15A, § 22. Nor have I found any statute, whether current or historic, directing that the board of trustees of the Commonwealth's higher education institutions include a member from HHSN, together with the members of the institutions listed at M.G.L. c. 15A, § 5 who must be board members per M.G.L. c. 15A, § 21.

I conclude that HHSN was not a governmental unit, and that as a consequence, Ms. Gazillo's employment as an HHSN instructor from August 1, 1969 through June 30, 1977 cannot be purchased as credible service pursuant to M.G.L. c. 32, § 4(1)(a).


2.


I have reviewed the remaining provisions of M.G.L. c. 32, § 4(1) for provisions that would allow Ms. Gazillo's employment at HHSN to be counted as creditable service even though the school was not a governmental unit. The only potentially material provision is M.G.L. c. 32, § 4(1)(p), which provides in pertinent part that:

Any member of a contributory retirement system who is engaged in a teaching position and holds a certificate issued by the department of education or is exempted from the requirement of certification 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, before the date any retirement allowance becomes effective for him, establish such service as creditable service by depositing into the annuity savings fund of the system of which he is a member in one sum, or in installments, upon such terms and conditions as the board may prescribe, an amount equal to five per cent of the compensation received by him during such period of service plus regular interest to the date of such deposit for such previous period, or most recent portion thereof, as he may elect. Payment shall not be made and no credit shall be allowed for such non public school service in excess of the total service rendered in a public school of the commonwealth to which the member would be entitled to receive credit if he remained in service to age sixty five, with the maximum credit for service in such non public schools not to exceed ten years; 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 other source.

(emphasis added).

Even assuming, for argument's sake, that Ms. Gazillo met all of the other prerequisites for establishing creditable service for her teaching employment at HHSN under M.G.L. c. 32, § 4(1)(p) and could have made the required payments before her retirement allowance became effective, there is no reliable evidence in the record that the tuition of HHSN's pupils "was financed in part or in full by the commonwealth," as the statute requires.

Ms. Gazillo asserted that HHSN and Holyoke Community College "[m]onies to the HHSN were from the federal government, state and corporation (Holyoke Hospital)..." and that "[t]he School of Nursing was not self-supporting and depended on these monies as well as the student tuition expenses." ("Info & Support Statements for Appeal" filed by Ms. Gazillo, at 2). She also asserted that "[a]lthough the distribution of monies for HHSN and HCC are not specifically available as evidence, it is apparent that they came from the sources outlined in the General Laws and were paid to HCC for course tuition and to HHSN for course tuition, room & board, laboratory and clinical experience in the hospital and agencies." (Id.)

These statements were unsupported by any documentation, however, and it is not clear whether any such supporting documentation could have been found. HHSN closed long ago, and although Ms. Gazillo recalled that its records were kept formerly in the Director of Nursing's office at the Holyoke Medical Center, she was unable to determine what had become of them. (Id.; Gazillo testimony). In addition, Ms. Gazillo asserted no personal knowledge of how HHSN was funded, and she did not testify to having reviewed any documentation showing the school's funding sources while she worked at HHSN. Ms. Gazillo's statements regarding HHSN's funding are not reliable or credible evidence, thus, that the tuition of HHSN students was "financed in part or in full by the commonwealth."

There is, in contrast, reliable evidence in the record that no such financing was available to HHSC students. The copies of the two HHSN academic catalogues that Ms. Gazillo submitted include identical descriptions of financial assistance "[f]or qualified students who find it difficult to meet the financial requirements of [HHSN's] program." (Exhs. A and C). Both catalogues identify the sources of this financial assistance as scholarships "offered by civic groups and friends of the hospital...awarded on the basis of need," and a "[l]oan fund of federal monies, payable at a very low rate of interest over a ten year period following graduation...for students who want to borrow." (Id.). Neither of the catalogues mentions financial assistance available from the Commonwealth or Commonwealth-related public sources, however. Nor does either catalogue state that HHSN received any funding from the Commonwealth or a Commonwealth agency or authority, or that its $400-per-year tuition reflected a state subsidy.

Because the record lacks reliable or credible evidence that the Commonwealth financed the tuition of HHSN students in part or in full, M.G.L. c. 32, § 4(1)(p) provides no basis for establishing Ms. Gazillo's employment at HHSN between August 1, 1969 and June 30, 1977 as creditable service.


Disposition


For the reasons set forth above, the decision of the respondent Board denying, pursuant to M.G.L. c. 32, § 4, petitioner Mary Ann Gazillo's request to purchase creditable service from August 1, 1969 to June 30, 1977-the time during which she was employed as an instructor in medical/surgical nursing at the Holyoke Hospital School of Nursing-is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Mark L. Silverstein
Administrative Magistrate


Dated: March 13, 2009