COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Barbara Reed,

Petitioner

v. Docket No. CR-07-601

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Barbara Reed, pro se

3 Canterbury Lane
Rockport, MA 01966

Appearance for Respondent:

James O'Leary, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.

CASE SUMMARY

The Teachers' Retirement System correctly decided that the Petitioner's earnings from her work in the Teachers Challenge Program are not regular compensation because the work was performed during the summer and because she was paid on a per diem basis.


DECISION

Barbara Reed filed a timely appeal under G. L. c. 32, s. 16 (4) of the July 31, 2007 decision of the Teachers' Retirement System ("Board") that the remuneration she received for working extra days in the Gloucester Public Schools Teachers' Challenge Program does not constitute regular compensation for purposes of calculating her retirement allowance. (Exs. 1, 2)

I held a hearing on March 3, 2009 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 "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified. There is one tape cassette of the hearing.

FINDINGS OF FACT

1. Barbara Reed, d.o.b. 5/15/1949, worked as a teacher in the Gloucester Public Schools from September 1971 to June 30, 2007 when she retired for superannuation. (Testimony; Ex. 6)

2. In accordance with Article Six, Section B1, of the Collective Bargaining Agreement ("CBA") between the Gloucester School Committee and the Gloucester Teachers' Association in effect from September 1, 2004 to August 31, 2007, "up to 100 teachers in the bargaining unit will be given the opportunity to apply for and to be appointed to the position of Challenge Teacher. The work year for these positions shall not exceed 191 days and will be scheduled between July 1 and the following June 30." (Ex. 4, p. 11)

3. Teachers chosen as Challenge Teachers met together in workshops, usually during the summer, where they discussed teaching strategies. The teachers then used those strategies in their own classrooms during the school year. (Testimony)

4. During July and August 2004, Ms. Reed worked for six days in the Teacher Challenge Program. From July 6 - 9, 2004 she attended a workshop entitled "Geometry: Measuring Space in One, Two & Three dimension, K-9." On August 4 and 5, 2004, she attended a workshop entitled "Reading Institute with Ellen Thompson and Sue Biggam, Grades 3 - 6." (Exs. 5, 8, 9, 13)

5. Ms. Reed was paid $347.19 per day for six days for a total of $2,083.14. The money was added to her base pay and then divided over the 21 pay periods in school year 2004-2005. (Exs. 14, 16)

6. If a teacher was absent for illness or any other reason, the teacher was not paid for the Teacher Challenge Day. (Ex. 10)

7. During the 2004-2005 school year, Ms. Reed worked for 191 days which included the six days she spent in the Teacher Challenge Program. The CBA sets forth in the appendix "Challenge Teachers Salary Schedules 191 Days." (Ex. 4, p. A29)

8. Ms. Reed requested that her earnings from the Teacher Challenge Program in school year 2004-2005 be included in the calculation of her retirement allowance. By letter of July 31, 2007, the Board denied her request on the grounds that the additional earnings did not constitute regular compensation. Ms. Reed appealed. (Exs. 1, 2)

CONCLUSION AND ORDER

The decision of the Teachers' Retirement System is affirmed. The remuneration received by Barbara Reed for her work in the Teacher Challenge Program is not regular compensation and shall not be used in the calculation of her retirement allowance.

G. L. c. 32, s. 1 defines regular compensation 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 … 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 … shall be regarded as regular compensation rather than as bonus or overtime and shall be included in the salary on which the deductions are to be paid to the annuity savings fund of the teachers' retirement system." (Emphasis supplied.)

The term "regular compensation" is further defined under the Board's regulation, 807 CMR 6.02, to include 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 is provided in the annual contract; and 4) the additional services are performed during the school year.

Pursuant to 807 CMR 6.01, the annual contract in the case of a teacher means "the collective bargaining agreement for the unit which governs the rights of the
members …."

The payments made to the Petitioner for attending six days of workshops in the Teacher Challenge Program in the summer of 2004 are not regular compensation because the additional services for which the Petitioner was paid were performed during the summer, not during the school year.

In addition, the per diem payments for participation in the Teacher Challenge Program are not set forth in the CBA. The CBA includes in the salary schedules payments for teachers who work 191 days, but the per diem amount is not broken out. The information in the record about the Petitioner's per diem pay amount comes from a letter to the Board provided by the Assistant Superintendent for Teaching and Learning in the Gloucester Public Schools. (Ex. 10)

The remuneration paid to the Petitioner for her work in the Teacher Challenge Program is not regular compensation for another reason; the payments were made per diem. In the case of Hallet v. CRAB, 431 Mass. 66, 725 N.E.2d 222 (2000), the Supreme Judicial Court determined that hourly payments to a teacher for teaching driver education before and after normal school hours did not constitute salary and could not, therefore, constitute regular compensation. The SJC noted that G. L. c. 32, s. 1 "starts with three terms: 'salary, wages or other compensation in whatever form.' When the Legislature addressed teachers, however, it provided that only 'salary' for additional services is part of regular compensation." Id., 725 N.E.2d at 224. The SJC noted the distinction between the words "salary" and "wages," citing the case of Coco v. School Committee of Boylston, 392 Mass. 221, 466 N.E.2d 118 (1984), where the meaning of the word salary in G. L. c. 71, s. 43 was at issue. "[T]here is considerable authority from other jurisdictions, and some guidance from Massachusetts precedent, for interpreting the term 'salary' to refer to a fixed annual or periodic amount of pay depending upon the period of employment rather than upon the number of days or hours worked within that period." Id. The SJC opined that the "statutory intent is clearly to exempt irregular payments of compensation from the retirement base because G. L. c. 32, s. 1 excludes bonus, overtime and severance pay from the definition of regular compensation. Hourly compensation paid on an irregular basis is more akin to overtime payments than to annual salary." The SJC held that the Legislature did not intend "to include periodic hourly payments as part of regular compensation for teachers for purposes of determining retirement benefits." Id. at 225.

In the instant case, the Petitioner was paid by the day for her participation in the Teacher Challenge Program. If she had missed a day of the workshop because of illness or for any other reason, she would not have been paid. Based on the holding in Hallet, I conclude that the Petitioner was paid per diem payments for her participation, depending not "upon the period of employment," but upon the "number of days or hours worked within that period." Those payments cannot be deemed to be salary, and they therefore cannot constitute regular compensation.

The decision of the Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

_/s/___________________________________________
Maria A. Imparato
Administrative Magistrate

DATED: 6/16/09