COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Kathleen McCauley,

Petitioner

v. Docket No. CR-05-78

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Kathleen McCauley

36 Perkins St.
Winthrop, MA 02152

Appearance for Respondent:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park, 2nd Floor
Cambridge, MA 02142

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

Kathleen McCauley is appealing the January 7, 2005 decision of the Teachers' Retirement System ("TRS") denying her a full year of creditable service for her 50% paid sabbatical leave (Ex. 1). She appealed timely under the provisions of G.L. c. 32, § 16(4) (Ex. 2). I heard the appeal on December 12, 2007 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. There are 12 documents in evidence (Exs. 1 - 12). I marked the pre-hearing memoranda of Ms. McCauley and the TRS as "A" and "B" for identification. Ms. McCauley testified; there is one tape of the hearing.

Findings of Fact

1. Kathleen McCauley taught for many years in the Everett public schools and retired from the Adams/Cheshire school district effective September 11, 2004. She was a member of the Teachers' retirement system (Ex. 3, A and B).

2. During school year 1980 - 1981, Ms. McCauley was on a 50% paid sabbatical with the Everett public schools (Ex. 5).

3. Although she received only a half year's salary, the Everett public schools considered the sabbatical as a year of experience and it was incorporated into her "steps" when her salary was calculated (A and testimony).

4. In 2002, the TRS sent an invoice to Ms. McCauley for "Refund Buyback Everett 9/1/72 - 6/30/85" for $24,811.16. The description says, "13.0000 years of creditable service." Ms. McCauley paid the invoice (Ex. 10).

5. When Ms. McCauley retired, the TRS credited her with one half of a year of creditable service for her sabbatical year 1980 - 1981 (Ex. 12).

6. At some point, Ms. McCauley requested that TRS give her a full year of creditable service for her sabbatical year. TRS denied her request and she appealed (Exs. 1 and 2).

7. TRS has a long-standing policy dating as early as 1978 to credit paid leaves of absence in accordance with the percentage of full-time salary received by the member (Ex. 11).

Conclusion and Order

The decision of the TRS crediting Ms. McCauley with one-half of a year of creditable service for her sabbatical year is affirmed.

General Laws, c. 32, § 3(6)(a) provides, in pertinent part:

Leaves and periods of absence of any member duly authorized without regular compensation or with partial regular compensation, while not to be deemed a termination of membership or service, shall not be counted as creditable service except as specifically otherwise provided for in section four. The board shall have full power to make such rules, regulations and findings as it may deem necessary, consistent with the provisions of sections one to twenty-eight inclusive, relating to leaves and periods of absence and the rights and duties of any member during the same as will effectuate the purposes of such sections.

General Laws, c. 32, § 4(1)(c), provides, in pertinent part:

Creditable service in the case of any member shall include any period of his continuous absence with full regular compensation, or in the event of his absence with partial regular compensation such period or portion thereof, if any, as the board shall determine.

Ms. McCauley argued that a sabbatical is different from a leave of absence and that since the word "sabbatical" does not appear in Chapter 32, the TRS is bound to give her a full year of creditable service. I do not find her argument persuasive. I conclude that the terms, "leaves" and "periods of absence" found in § 3(6)(a) and the term "absence with partial regular compensation" found in § 4(1)(c) encompass sabbaticals taken by teachers.

There are at least two decisions of this Division directly on point. In Elaine Tocci v. Teachers' Retirement Board, CR-98-798 (DALA dec. 10/6/00; CRAB dec. 4/3/01), Ms. Tocci took a full year sabbatical leave and was paid 75% of her pay. It was held that Ms. Tocci should be granted creditable service directly proportional to the rate of compensation actually received, or 75%. In a later case, Susan Barahal was a full-time teacher who was on a paid sabbatical for the 1997 - 1998 school year. She was paid 65% of her full year's contractual pay. This Division affirmed the decision of the Teachers' Retirement Board to give her 65% of one year of creditable service. Susan Barahal v. Teachers' Retirement Board, CR-02-160 (DALA dec. 2/25/03; no CRAB dec.).

Ms. McCauley also argued that the Supreme Judicial Court decision in Nancy Madden v. CRAB, 729 N.E.2d 1095 (2000) supports her position. The Madden case dealt with the issue of proration of part-time service. The Court held that TRS members are entitled to rely on a properly construed regulation in developing contractual expectations as to their retirement benefits. The decision did not address G.L. c. 32, §§ 3(6)(a) or 4(1)(c). Ms. McCauley's contractual expectations about the amount of creditable service she would be given for her sabbatical year would have been based on the statutes, not on regulations of the TRS.

In conclusion, the decision of the TRS denying Ms. McCauley's request for a full year of creditable service for her sabbatical year is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Kimberly A. Fletcher
First Administrative Magistrate

DATED: 3/12/08


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