COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals


Fedela Nuovo,

Petitioner

v. Docket Nos. CR-07-221
CR-08-354

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Will Evans, Esq.

Mass. Teachers Association
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

James O'Leary, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.

SUMMARY OF DECISION

The MTRS was correct to deny the Petitioner's request to purchase credit under G. L. c. 32, s. 3(4) for teaching at an Indian boarding school in Arizona from 1976-1982 (CR-07-221) because she was not a "teacher" and the school was not a "public day school" as defined in Chapter 32, s. 1, and to deny the Petitioner's request to purchase credit under G. L. c. 32, s. 3(4) for directing a day care, pre-school and kindergarten on an Army base in Japan because it was under the supervision of the Department of Army, rather than under the supervision of the Department of Defense (CR-08-354).

DECISION

Fedela Nuovo filed timely appeals under G. L. c. 32, s. 16 (4) of the March 6, 2007 decision of the Teachers' Retirement System ("Board") to deny her request to purchase credit for her service at the Santa Rosa Boarding School in Arizona from 1976 to 1982, and of the May 21, 2008 decision of the Board to deny her request to purchase credit for her service at the Department of the Army Camp Zama in Japan from 1982 to 1983. (Exs. 1, 2, 9, 10)

I held a hearing on the consolidated cases on November 12, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. I admitted documents into evidence. (Exs. 1-19). I marked the Petitioner's pre-hearing memorandum with respect to CR-07-221 "A" for identification, the Petitioner's pre-hearing memorandum with respect to CR-08-354 "B" for identification, and the Respondent's pre-hearing memorandum with respect to both cases "C" for identification. The Petitioner testified. There is one tape cassette of the hearing. The record closed on December 24, 2008 with the filing of briefs.

FINDINGS OF FACT

1. Fedela Nuovo, d.o.b. 1/2/1948, taught in the Agawam Public Schools from 1987 until she retired for superannuation on July 1, 2008. (Ex. 18; Testimony.)
CR-07-221

2. From April 1976 to May 1982, Ms. Nuovo taught at the Santa Rosa Boarding School, a federally funded Title I school under the jurisdiction of the United States Department of the Interior Bureau of Indian Affairs serving children in grades K through 8. (Testimony.)

3. The Santa Rosa Boarding School is located on the Papago Reservation in Sells, Arizona. (Testimony.)

4. The school was open to those who were at least 25% Native American, and to the dependents of the teaching staff. (Testimony.)

5. Ms. Nuovo applied for the job when she saw a posting for a federal civil service position. She was required to take the federal civil service examination. By 1982 she had obtained tenure as a GS-9, Step 5 federal civil service employee. (Ex. 6; Testimony.)

6. Ms. Nuovo obtained teacher certification from the state of Arizona while she was employed at the Santa Rosa Boarding School. Arizona certification was a requirement of the job. She still maintains her teaching certification in Arizona. (Ex. 8; Testimony.)

7. Ms. Nuovo taught English as a second language to grades 7 and 8. Her job description describes her duties as follows: "Teaches Indian students in one or more grades from K-8 independently adjusting teaching methods based on individual differences among students." (Ex. 4; Testimony.)

8. Ms. Nuovo's job description states: "The purpose of the work is to provide quality education for Indian students to aid in their growth and broad development by advancing them intellectually and personally. Work will have an impact on the social and economic well-being of the students." (Ex. 4)

9. Ms. Nuovo's duties included: conducting classes; developing lesson plans; organizing and selecting teaching materials; handling disciplinary and counseling problems; conferring with parents and guardians; developing and administering tests; and planning and scheduling field trips. (Ex. 4)

10. Some of the students at the school boarded there. Some of the students lived at home with their parents in the village. No students paid tuition. (Testimony.)

11. The school was overseen by the Pagago Tribal Council, but Ms. Nuovo was an employee of the U.S. Department of the Interior, not an employee of the Papago tribe. (Exs. 5, 6, 7; Testimony)

12. Ms. Nuovo was a member of the federal government retirement system. She withdrew her deductions when she left and is not entitled to a retirement benefit from the federal government. (Ex. 3; Testimony.)

13. In 1982, Ms. Nuovo made a lateral transfer without a break in service to take a position at Camp Zama, Japan, with the Department of the Army. (Testimony)
CR-08-354

14. Ms. Nuovo worked as Director of Child Support Services at the Department of the Army Camp Zama in Japan from May 7, 1982 to November 18, 1983. (Exs. 11, 12; Testimony.)

15. According to Ms. Nuovo's Department of the Army job description, she worked "under the administrative supervision of the Army Community Services Officer who outlines program objectives, interprets policy and is available to resolve difficult administrative problems." (Ex. 13.)

16. The Child Support Services facilities that Ms. Nuovo directed included the following: the SDHA Kiddy Korner, an after-school program for children up to age 12 who attended the Department of Defense school on the base during the school day; the Toddlers' Inn that provided day care to infants from age 6 months to 3 years; the Sagami Day Care Center that provided day care to older children; and the SDHA and Sagami pre-schools. (Ex. 13; Testimony.)

17. Ms. Nuovo supervised a staff of about 40 people. Three were GS ranked teachers. The other workers were the wives of Army dependents. (Testimony; Ex. 13)

18. Camp Zama had elementary, middle and high schools on the base that were under the jurisdiction of the Department of Defense. (Testimony; Ex. 17, April 27, 2008.)

19. The infants and young children were in the daycare, preschool and kindergarten directed by Ms. Nuovo. In the first grade, the children started school at the Department of Defense elementary school on the base. (Testimony)

Conclusion and Order

The decisions of the Teachers' Retirement System are affirmed. Fedela Nuovo may not purchase credit for her work at the Santa Rosa Boarding School in Arizona from 1976 to 1982, nor may she purchase credit for her work at Camp Zama in Japan from 1982 to 1983.

Santa Rosa Boarding School, CR-07-221

The Petitioner is not entitled to purchase credit for her work at the Santa Rosa Boarding School under the provision of G. L. c. 32, s. 3(4) because in that position she did not meet the definition of "teacher" in G. L. c. 32, s. 1, and because the Santa Rosa Boarding School does not meet the definition of "public day schools or other day school under exclusive public control."

G. L. c. 32, s. 3(4) provides in pertinent part:

Any member in service … of the teachers' retirement system … who is employed in a teaching position … in a school or college … who had rendered service in any other state for any previous period as a teacher …in the public day schools or other day school under exclusive public control and supervision … may, before the date any retirement allowance becomes effective for him pay into the annuity savings fund of the system … an amount equal to that which would have been withheld as regular deductions from his regular compensation for such previous period … had such service been rendered in a public school of the commonwealth and had he been a member of the teachers' retirement system during the period the service was rendered. (emphasis supplied).

The definition of "teacher" as used in this section is found in G. L. c. 32, s. 1. McKay v. CRAB, 56 Mass. App. Ct. 924, 925 (2002). G. L. c. 32, s. 1 defines "teacher" as "any person who is employed by one or more school committees or boards of trustees or by any combination of such committees and boards on a basis of not less than half-time service as a teacher …."

The definition of "public school" found in the same section is "any day school conducted in the commonwealth under the superintendence of a duly elected school committee and also any day school conducted under the provisions of section one to thirty-seven of chapter seventy-four."

When she taught at the Santa Rosa Boarding School, the Petitioner was not employed by one or more school committees or boards of trustees; she was employed by the Department of the Interior Bureau of Indian Affairs. She therefore did not meet the definition of "teacher" in section 1.

Furthermore, the Santa Rosa Boarding School is not a public school. The school was not a day school, it was a boarding school and a day school. It was under the superintendence of the Department of Interior Bureau of Indian Affairs with input from the Papago Tribal Council. It was not under the superintendence of a duly elected school committee. Likewise, the Santa Rosa Boarding School is not a "day school under exclusive public control." The school is not a day school; it is both a boarding school and a day school. In two prior cases involving Indian boarding schools, DALA and CRAB have concluded that the schools are non-public schools. Beuke v. State Board of Retirement, CR-96-1004 (DALA, November 25, 1997)(no CRAB decision); Ticchi v. Teachers' Retirement Board, CR-98-905 (DALA, March 3, 2000)(CRAB, September 15, 2000).

The Petitioner would have been able to purchase credit for her service at the Santa Rosa Boarding School under the provisions of G. L. c. 32, s. 3(4A) if the service had been rendered prior to January 1, 1973. G. L. c. 32, s. 3(4A) allows a teacher "who was previously engaged in teaching pupils … in a nonpublic school prior to" January 1, 1973 to purchase credit for that service. Because the Petitioner rendered service from 1976 to 1982, she may not purchase credit for that service under this section.

The Petitioner may not purchase credit for her work at the Santa Rosa Boarding School from 1976 to 1982 under either G. L. c. 32, s. 3(4) or s. 3(4A). (See, Gartner v. Teachers' Retirement Board, CR-99-437 (DALA dec. 12/1/00; no CRAB dec.); Rudd v. Teachers' Retirement System, CR-03-168 (DALA dec. 5/14/04, no CRAB dec.); Rowell v. Teachers' Retirement System, CR-05-213 (DALA dec. 4/14/08; no CRAB dec.); Rodney Weston v. CRAB, et al., Suffolk Superior Court Civil Action No. 07-3133, (9/24/08).

Camp Zama, Japan, CR-08-354

Under the provisions of G. L. c. 32, s. 3(4), "service in any other state for any previous period as a teacher … in the public day schools or other day school under exclusive public control and supervision" shall be deemed to include service rendered in an overseas dependent school conducted under the supervision of the department of defense of the government of the United States, and service rendered in the public schools of the Commonwealth of Puerto Rico.

The Petitioner may not purchase credit for her service at Camp Zama in Japan because the day care, pre-school, kindergarten and after school program that she directed were under the supervision of the United States Army, not under the supervision of the Department of Defense. The Department of Defense schools on the base were the elementary school, the middle school and the high school.
The decisions of the Teachers' Retirement System are affirmed.

SO ORDERED.


DIVISION OF ADMINISTRTIVE LAW APPEALS


/s/ Maria A Imparato
Administrative Magistrate


DATED: 3/12/09