COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Mary Moore,

Petitioner

v. CR-06-268

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Brian Riley, Esq.

Massachusetts Teachers' Assoc.
20 Ashburton Pl.
Boston, Ma. 02108

Appearance for Respondent:

James O'Leary, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, Ma. 02142

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16 (4), the Petitioner, Mary Moore, is appealing the April 13, 2006 decision of the Respondent, Teachers' Retirement System, to include only $1218 of the total stipend of $1738 that she received for serving as Head Math Teacher during the 2003-2004 school year as regular compensation in the calculation of her retirement allowance (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on December 19, 2007, at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 - 12). The Parties' Joint Pre-hearing Memorandum was marked as "A" for identification. The Petitioner testified in her own behalf. One cassette tape recording was made of the hearing.

FINDINGS OF FACT

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

1. The Petitioner, Mary Moore, d.o.b. 10/22/48, commenced full-time employment as a middle school math teacher with the Stoughton, Massachusetts Public School System in September of 1970 (Exhibit 12, testimony of the Petitioner).

2. She became a member of the Teachers' Retirement System at that time (testimony of the Petitioner).

3. The Petitioner worked continuously as a teacher with the Stoughton Public School System from September of 1970 through June of 2006 (testimony of the Petitioner).

4. In August of 1999, the Stoughton Public School System posted the position of Head Math Teacher (Exhibit 6).

5. The Petitioner applied for and received the appointment to the position of Head Math Teacher. This position was in addition to her responsibilities as a full time math teacher (testimony of the Petitioner).

6. Every two years thereafter, the Petitioner applied for and was awarded the position of Head Math Teacher. She remained in that position until her retirement in June of 2006 (testimony of the Petitioner).

7. The Petitioner's duties as Head Math Teacher included interviewing math teachers, acting as a liaison with the elementary schools, and ensuring that the math curriculum matched the material covered by the MCAS examination (testimony of the Petitioner).

8. The Collective Bargaining Agreement between the Stoughton School Committee and the Stoughton Teachers Association in effect for the period of September 1, 2001 through August 31, 2004 lists the remuneration to be paid for performing the duties of a Head Math Teacher during the 2003-2004 school year as $1218 (Ex. 4).

9. The Petitioner actually received a stipend in the amount of $1738 for the 2003-2004, a raise of $520 from the amount listed in the Collective Bargaining Agreement (testimony of the Petitioner).

10. No amendment was made to the Collective Bargaining Agreement to reflect the $520 increase in the stipend for Head Math Teacher for the 2003-2004 school year (stipulation of the parties).

11. On March 15, 2006, the Petitioner filed an application for superannuation retirement benefit with an effective retirement date of June 30, 2006. On this application, she included the amount of $1738 as the stipend for serving as Head Math Teacher for the 2003-2004 school year (Exhibit 12).

12. On April 13, 2006, the Teachers' Retirement System sent the Petitioner notification that only $1218 of the stipend that she earned for serving as Head Math Teacher during the 2003-2004 school year would be considered regular compensation in the calculation of her retirement benefit (Exhibit 1).

13. On April 19, 2006, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

There are no material issues of fact in dispute in this matter. The essential issue in this appeal is whether the Petitioner is entitled to have the increase of $520 that she received for serving as Head Math Teacher during the 2003-2004 school year beyond the $1218 listed in the relevant Collective Bargaining Agreement included as regular compensation in the calculation of her retirement benefit.

After reviewing the evidence presented in this case, I conclude that the Petitioner is not entitled to have this increase of $520 considered as regular compensation since only a stipend of $1218 was included in the relevant Collective Bargaining Agreement.

Regular compensation is defined in G.L. c. 32 §1 as:

Salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority, not including bonus, overtime, severance pay for any and all unused sick leave, early retirement incentives, or any other payment made as a result of giving notice of retirement…

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 and also compensation for services rendered by said teacher in connection with a school lunch program or for services in connection with a program of instruction of physical education and athletic contests shall be regarded as regular compensation rather than as bonus or overtime and shall be included in the salary [on which the pension is calculated."

807 CMR 6.01 and 807 CMR 6.02 became effective on May 6, 1994. 801 CMR 6.01 provides as follows:

For the purpose of 807 CMR 6.00, annual contract shall have the following meaning:

In the case of a teacher, the annual contract is the collective bargaining agreement for the unit that governs the rights of the members whether it is a one year or multi-year agreement. In the case of an Administrator the annual contract is the individual employment agreement which governs the rights of the member whether it is a one year or multi-year agreement...

801 CMR 6.02 (1) provides as follows:

The term regular compensation as defined by M.G.L. c. 32 §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 additional services are educational in nature; (3) the remuneration for these services is provided in the annual contract; (4) The additional services are performed during the school year (emphasis supplied).

In this case, the Collective Bargaining Agreement in effect during the 2003 -2004 school year covering the Petitioner in her position as the Head Math Teacher with the Stoughton Public School System specifically listed the amount of $1218 as the annual stipend for serving in that position. No amendment was made to that Collective Bargaining Agreement to include an increase in the stipend to $1738. In the case of Henry Kozloski v. Contributory Retirement Appeal Board, 61 Mass. App. Ct. 783, app. Rev. denied 442 Mass. 1112 (2004), the Appeals Court held that it is necessary to review the annual contract covering the individual's employment to determine whether an additional payment made to the employee is specifically included. In Kozloski, supra, the Petitioner's annual stipend for serving as audio-visual coordinator was not included in the collective bargaining agreement, the annual contract covering Mr. Kozloski's employment as a high school science teacher. The 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 agreement under which Kozloski worked for the three-year period that was the basis for his pension calculation." The Court further 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."

In the case of Albert Dicarlo v. Teachers' Retirement Board, Suffolk Superior Court Civil Docket #SUCV2001-02423 (2003), the Court addressed the specific issue raised by Ms. Moore in the current appeal, i.e., as to whether the excess stipend paid to a Petitioner, beyond the amount identified as remuneration for serving in a position specified in the Collective Bargaining Agreement, was includable as regular compensation in the calculation of his retirement benefit. In Dicarlo, supra, the Court held that the excess amount is not includable in the calculation of Mr. Dicarlo's retirement benefit as the amount to be considered as regular compensation is "controlled by that which appears within the four corners of the CBA. Where a contract contains unambiguous language, the court must enforce that contract according to its terms" citing Schwanbeck v. Federal-Mogul Corp, 412 Mass. 703, 706 (1992).

For the foregoing reasons, I order that the decision of the Teachers' Retirement System declining to include the $520 in excess stipend that the Petitioner received for serving as Head Math Teacher in the calculation of her retirement benefit be affirmed. If retirement contributions were deducted from this additional compensation the Petitioner, those deductions should be refunded forthwith by the Teachers' Retirement System.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 2/5/08


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