COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

Suffolk, ss.


Rebecca Hurwitz (CR-06-490),
Susan Hastings (CR-06-551),
Carol Holubecki (CR-06-1085), and
Maureen Keating (CR-08-428),

Petitioners,

v. Docket Nos. CR-06-490, CR-06-551,
CR-06-1085 and CR-08-428
Consolidated

Massachusetts Teachers' Retirement
System,

Respondent.

Appearance for Petitioners:

Matthew D. Jones, Esq.

Massachusetts Teachers Association
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

Robert G. Fabino, Esq.

Associate General Counsel,
Massachusetts Teachers' Retirement System
One Charles Park
Cambridge, MA 02114

Administrative Magistrate:

Richard C. Heidlage, Esq.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioners, Rebecca Hurwitz, Susan Hastings, Carol Holubecki and Maureen Keating, are appealing the decision of the Respondent, Massachusetts Teachers' Retirement System ("MTRS"), denying their requests to have certain payments under their collective bargaining agreement with the Gill-Montague Regional School District considered regular compensation for purposes of the calculation of their retirement benefits. The Petitioners moved to consolidate their appeals, waived a hearing and submitted the case on written submissions under 801 CMR 1.01(10)(c), and moved for summary disposition. The Respondent did not oppose the motion to consolidate and, because the Petitioners are similarly situated and all dispositive issues are identical for each matter, I granted the motion to consolidate. At Petitioners' request I have proceeded to decide this matter on the written record.

The following documents were submitted by the parties and entered as evidence in the record:

1. July 19, 2006 letter of appeal from Rebecca Hurwitz;

2. August 8, 2006 letter of appeal from Susan Hastings;

3. November 26, 2006 letter of appeal from Carol Holubecki;

4. June 28, 2006 letter of appeal from Maureen Keating;

5. July 17, 2006 letter to Rebecca Hurwitz from the MTRS stating that payments under the pre-2005 - 2006 Gill-Montague Public Schools "Longevity/Longevity Buyout" provision would not be considered regular compensation;

6. July 27, 2006 letter to Susan Hastings from the MTRS stating that payments under the pre-2005 - 2006 Gill-Montague Public Schools "Longevity/Longevity Buyout" provision would not be considered regular compensation;

7. November 21, 2006 letter to Carol Holubecki from the MTRS stating that payments under the pre-2005 - 2006 Gill-Montague Public Schools "Longevity/Longevity Buyout" provision would not be considered regular compensation;

8. June 22, 2006 Notice of Estimated Retirement Benefit sent by the MTRS to Maureen Keating;

9. Affidavit of Vicki L. Valley with Exhibits A, B and C attached. Exhibit A is a copy of Article XII-1.k of the Gill-Montague 2001 - 2004 collective bargaining agreement applicable to the petitioners; Exhibit B is a "Contract Proposal offered by the Gill-Montague Regional School District To the Gill-Montague Teachers' Association;" and Exhibit C is a Memorandum dated April 3, 2006.

10. Agreement Between the Gill-Montague Teachers' Association, August 25, 2001 through August 24, 2004.

The Petitioners also filed a Memorandum in support of their Motion for Summary Decision and the Respondent filed an Opposition to Petitioners' Motion for Summary Decision.

FINDINGS OF FACT

In Petitioners' Memorandum in support of their Motion for Summary Decision, they list Requested Findings of Fact 1 - 12. In its response, the Respondent does not address the Petitioners' proposed findings 1 through 5, 11 or 12. Respondent does assert that there are issues of fact with regard to proposed findings 6 through 10. While the documents submitted by the parties do not otherwise support the proposed findings 1 through 5, I hold that the Respondent's failure to object to them constitutes an admission and I adopt them as findings 1 through 5 set out below. Proposed findings 11 and 12, in addition to not being objected to, are supported by the documentary evidence and are adopted as findings 9 and 10 set out below.

1. At the times material to this appeal, each Petitioner taught in the Gill-Montague Regional School District and was a member of the Teachers' Retirement System.

2. Petitioners Hurwitz, Hastings and Keating retired effective June 30, 2006. Petitioner Holubecki retired effective October 9, 2006.

3. Each Petitioner was employed in a position that was subject to a collective bargaining agreement.

4. A collective bargaining agreement (2001 - 2004 agreement) was in effect for the Petitioners' collective bargaining unit for the period of August 25, 2001 through August 24, 2004.

5. Each Petitioner received payments under Article XII-1.k of the 2001 - 2004 agreement for the years prior to the 2005 - 2006 school year.

6. Article XII-1.k of the Agreement Between the Gill-Montague Teachers' Association, August 25, 2001 through August 24, 2004 provides:
A professional employee with twenty (20) or more years of full-time employment with the Gill, Montague and/or Gill-Montague Regional School Committee(s), and who intends to retire within three years, may elect to increase his/her pay for three (3) consecutive years by $2,000 in each of the three years, as well as the longevity pay already provided for in Article XII, Section l(j).

Exhibit 10. Emphasis added.

7. In or about September, 2003, the Gill-Montague School Committee submitted to the Gill-Montague Teachers' Association the "Contract Proposal offered by the Gill-Montague Regional School District To the Gill-Montague Teachers' Association" (the "2003 Proposal") set out in Exhibit B to the Affidavit of Vicki L. Valley. The 2003 Proposal contains the following provision:

Article XII - Section 1(K) - Longevity Buy-Out language
(Longevity Buy-Out language replaced Early Retirement Incentive language in the last contract. Agreed to a show of good faith by the administration to remove a clerical error.) Remove the words "and who intends to retire within three years" from the 3rd line of the first paragraph.

Exhibit 9, Attachment B.

8. On or about April 3, 2006, the Gill-Montague Teachers' Association and the Gill-Montague Regional District School Committee entered into the Memorandum attached as Attachment C to Exhibit 9. That Memorandum provides:

The Gill-Montague Regional School Committee and the Gill-Montague Teachers' Association amend Article XII-1.k of the AGREEMENT BETWEEN THE GILL-MONTAGUE REGIONAL SCHOOL COMMITTEE AND THE GILL-MONTAGUE TEACHERS' ASSOCIATION, August 25, 2001 through August 24, 2004 and August 25, 2004 through August 24, 2005, to correct a clerical error. Accordingly, Article XII-1.k should read as follows:

The revised language removes the words "and who intends to retire within three years," from the provision quoted above in Finding of Fact 6. Attachment C to Exhibit 9.

9. When each of the Petitioners retired, the Respondent excluded payments under Article XII-1.k of the 2001 - 2004 agreement for years prior to the 2005 - 2006 school year. Petitioners' proposed finding 11.

10. The Petitioners each timely appealed.

CONCLUSION

In Boston Association of School Administrators and Supervisors v. Boston Retirement Board, 383 Mass. 336, 419 N.E.2d 277 (1981), the Supreme Judicial Court held that early retirement incentive payments could not be considered "regular compensation" because early retirement incentive payments are "not salary increases for those years, e.g., increases across the board to employees in given job classifications which do properly figure in retirement calculations . . . but money held out simply to induce early retirement. The payments promised are not 'regular compensation' but have the character of premiums to particular individuals, beyond such compensation, which conform to the idea of a 'bonus' in the common understanding of that term." Emphasis added. Id., 383 Mass. at 342, 419 N.E.2d at 281. In Christensen v. Contributory Retirement Appeal Board, 47 Mass. App. Ct. 544, 678 N.E.2d 863 (1997), the Appeals Court held that three consecutive $3,000 annual longevity payments, that could be substituted on a one-time basis at the option of the employee for unlimited annual longevity payments of $700, were regular compensation because they were not specifically tied to retirement. There is no dispute in this case, then, that if the language of Article XII-1.k of the Agreement Between the Gill-Montague Teachers' Association, August 25, 2001 through August 24, 2004, that limits the payment to a teacher "who intends to retire within three years," is applied as written, then the payments at issue in this case are clearly excluded by Boston Association of School Administrators and Supervisors and not included under Christensen.

The Petitioners argue that the language "and who intends to retire within three years," should be disregarded because they have submitted evidence that at least some of the participants in the drafting and negotiations believed it was included only because of a "clerical error." Parol evidence of the parties' intent is not normally admissible to vary the terms of an otherwise unambiguous contractual term. When the terms of a contract are unambiguous, other evidence, such as prior or contemporaneous oral discussions or negotiations, is irrelevant. See Robert Indus., Inc. v. Spence, 362 Mass. 751, 753-54 (1973); Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 440 (2006)(citations omitted). When interpreting a contract, courts construe and enforce unambiguous terms according to their plain meaning. Private Lending v. First Am., 54 Mass. App. Ct. 532, 536 (2002). Parol evidence, which is verbal or written evidence not contained in the written contract itself, is inadmissible to supplement, contradict, or vary the terms of the agreement where the terms are unambiguous. A.B.C. Auto Parts, Inc. v. Moran, 359 Mass. 327, 330 (1971). In this case, the Petitioners do not argue that the language at issue is ambiguous or unclear in any way. It is not.

The Petitioners attempt to avoid this result by calling the language a "clerical error." While it is true that courts, in the exercise of their equitable powers, can reform a contract where there has been a clerical mistake, this will not be done unless the parties' mistake is mutual. Berman v. Sandler, 379 Mass. 506, 509-510, 399 N.E.2d 17, 19 (1980); Eno v. Prime Mfg. Co., 317 Mass. 646, 650, 59 N.E.2d 284 (1945); Corbett v. Craven, 196 Mass. 319, 321, 82 N.E. 37 (1907), appeal dismissed sub nom. Kenney v. Craven, 215 U.S. 125, 30 S.Ct. 64, 54 L.Ed. 122 (1909). In addition, the relief will not be granted on the ground of a mistake of law. A "[m]isconception of the legal effect of the language used in the instrument is not a 'mistake of law' against which our courts afford a remedy. The parties are bound by the legal effect of what has really been agreed on, and cannot have the declaration set aside on the ground that they did not fully understand the legal effect of the language used, and that certain legal consequences which were not anticipated . . . flowed from its execution." Coolidge v. Loring, 235 Mass. 220, 224, 126 N.E. 276 (1920). See Taylor v. Buttrick, 165 Mass. 547, 549-551, 43 N.E. 507 (1896) (court declined to rescind deed, as part of trust, based on unilateral mistake of law or lack of understanding full effect of deed). Finally, to warrant such a modification on the basis of a "scrivener's error" or "clerical error" the error and its circumstances must be established by "full, clear, and decisive proof." Berman v. Sandler, 379 Mass. 506, 509, 399 N.E.2d 17 (1980). See Loeser v. Talbot, 412 Mass. 361, 366, 589 N.E.2d 301 (1992); DiCarlo v. Mazzarella, 430 Mass. 248, 250, 717 N.E.2d 257 (1999); Ryan v. Ryan, 447 Mass. 1003, 1003, 849 N.E.2d 183 (2006); Coolidge, 235 Mass. at 224.

In this case, the evidence that the inclusion of the language at issue was merely the result of a scrivener's or clerk's error is sparse and conclusory. For example, there is absolutely no contemporaneous evidence in the record of the negotiations that led to the agreement, such as prior drafts of the agreement, meeting notes, or the like that would support the proposition that neither party to the agreement at the time it was executed intended for the language at issue to be included and its inclusion was the result of a mere clerical error. Indeed, it is difficult to believe that a clerk or typist would have included such language on his or her own. The affidavit of Vicki L. Valley states that she became Chair of the Bargaining Committee for the Gill-Montague Education Association in September, 2004. She does not state that she was personally involved in the negotiations of the provision at issue in 2000 or 2001 when it was adopted, and there is no evidence that she has first-hand knowledge of what was intended by each of the parties negotiating the provision. Indeed, it is unlikely that she would be competent to testify concerning the knowledge and intent of the other parties to the negotiation if she were asked to do so at a hearing. The language in the School Committee's 2003 Proposal is likewise insufficient to establish as a matter of law that the offending language was included in 2001 only as a clerical error. That proposal contains the following provision:

Article XII - Section 1(K) - Longevity Buy-Out language
(Longevity Buy-Out language replaced Early Retirement Incentive language in the last contract. Agreed to a show of good faith by the administration to remove a clerical error.) Remove the words "and who intends to retire within three years" from the 3rd line of the first paragraph.

Exhibit 9, Attachment B.

First, the proposal states that the revised language was inserted to replace an "Early Retirement Incentive" language in an earlier contract. The inference can be made the language limiting the payment to a teacher "who intends to retire within three years," was not a clerical error but rather intentional. In any event, there is no evidence in the record as to how the negotiations on this provision proceeded in 2003 and 2004 and there is no dispute that the proposal was not accepted at that time.

With regard to the 2006 Memorandum, which purports to modify the 2001 - 2004 agreement "to correct a clerical error," there is also no evidence of the negotiations on this point or how the parties reached the conclusion that the original language was included only because of a clerical error. On this basis, I conclude that the evidence is insufficient to establish either as a fact or as a matter of law that the language at issue was included in the Petitioners' 2001 - 2004 collective bargaining agreement only as a result of a clerical error.

For these reasons, the decision of the Respondent MTRS is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

/s/ Richard C. Heidlage
First Administrative Magistrate


DATED: March 13, 2009