COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Robert Richardson,

Petitioner

v. Docket No. CR-07-117

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Robert S. Catapano-Friedman, Esq.

The Catapano-Friedman Law Firm
50 Franklin Street, 4th floor
Boston, MA 02110

Appearance for Respondent:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Robert Richardson filed a timely appeal under G. L. c. 32, s. 16 (4) of the January 25, 2007 decision of the Teachers' Retirement System to grant him 3.0646 years of creditable service for his part-time work at Blackstone Valley Regional Vocational School between October 1977 and March 1982. (Exs. 1, 2, 11) I held a hearing on November 7, 2007 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 13) 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. Robert Richardson, d.o.b. 8/10/1945, worked part-time for the Blackstone Valley Vocational Regional School District (BVRSD) from October 1977 through March 1982.

2. In September 1984 Mr. Richardson became a full-time teacher and established membership in the Teachers' Retirement System. (Ex. 3)

3. During the years that he worked part-time, Mr. Richardson held three positions: Special Education instructor teaching automotive repair and theory in the Optional Vocational Education Program (OVEP); instructor of Adult Education at night; and intermittent substitute teacher. (Ex. 4)

4. Mr. Richardson worked a different number of hours in each week and was paid at a different rate for each of his three positions. (Ex. 4)

5. Under the Collective Bargaining Agreement (CBA) in effect from 1976 to 1979, teachers were required to be in their classrooms from 8 a.m. to 3:15 p.m. with a duty-free lunch period. In the CBAs in effect in 1979 and 1980, teachers were required to be in their classrooms from 7:45 a.m. to 2:45 p.m., with a duty-free lunch period. (Ex. 12)

6. Mr. Richardson's OVEP class met for 3 hours at a time beginning at 2:30 p.m. (Testimony)

7. On June 29, 2001 Mr. Richardson applied to the Board to purchase his part-time non-membership service rendered from October 1977 through March 1982. Based on his documentation, the Board supplied Mr. Richardson with an invoice to purchase a total of 2 years and 7 months of non-membership service, which he did not pay. (Ex. 5, "B")

8. Sometime in 2006 Mr. Richardson submitted his salary stubs, with his earnings and deductions statements from BVRSD, asking the Board to revisit his non-membership service request. (Ex. 6, "B")

9. In light of the new documentation, the Board sent Mr. Richardson a new invoice dated March 30, 2006 to purchase 2.8386 years of service, which Mr. Richardson did not pay. (Ex. 7, "B")

10. At Mr. Richardson's request, the Board sent him another invoice on January 25, 2007 for 2.8386 years of creditable service, with appeal rights. (Exs. 1, 8, "B")

11. Mr. Richardson appealed. (Ex. 2 )

12. By letter of October 29, 2007, Mr. Richardson's counsel forwarded to the Board Mr. Richardson's W-2s for his work with BVRSD from 1977 to 1982. Counsel asked the Board to determine whether Mr. Richardson was eligible to purchase any additional creditable service. (Ex. 9, "B")

13. After review of Mr. Richardson's W-2s, pay stubs, earnings and deductions, and his salary history submitted by BVRSD, the Board determined that Mr. Richardson could purchase a total of 3.0646 years of creditable service for his part-time, pre-membership service at BVRSD from 1977 to 1982. (Ex. 10, "B")

14. Mr. Richardson agrees that if he is not entitled to purchase full-time creditable service for his part-time, non-membership service, he is entitled to purchase 3.0646 years of creditable service for this work. ("A")

CONCLUSION AND ORDER

The decision of the Teachers' Retirement System is affirmed. Robert Richardson is entitled to purchase 3.0646 years of creditable service for his part-time, non-membership service at Blackstone Valley Vocational Regional High School from October 1977 to March 1982.

The Petitioner is entitled to purchase this service under the provisions of G. L. c. 32, s. 4 (2) (c) that provides that retirement boards may grant creditable service for prior part-time employment rendered by a member in the same governmental unit in which he is currently employed, during such period as he was not eligible for membership, provided that the board has adopted rules and regulations approved by the actuary permitting the board to do so. From 1977 to 1982 the Petitioner was not eligible for membership in the Teachers' Retirement System because he worked less than half-time. He therefore did not meet the definition of "teacher" in G. L. c. 32, s. 1, which requires service "on a basis of not less than half-time …"

The Petitioner argues that he was wrongly excluded from membership in the MTRS in 1977 because the Petitioner asserts that he worked a minimum of three hours per day teaching in OVEP, which constitutes half of a 6-hour teaching day. The Petitioner testified, and signed an affidavit, attesting that he worked 3 hours per day, five days per week, teaching in OVEP. The Petitioner's memory is apparently faulty here, because the documentation from BVRSD indicated that the Petitioner did not regularly work 60 hours per month in OVEP. (3 hours per day, 5 days per week, 4 weeks per month = 60 hours) A close reading of Exhibit 4 demonstrates that the only month in which the Petitioner worked more than 60 hours in OVEP was March 1979. He worked for 11.25 hours in OVEP in November 1977, and no more than 46.75 hours in OVEP in any other month. I decline to look behind the figures provided by BVRSD and rely on the Petitioner's memory from thirty years ago. I conclude that the Petitioner worked less than half-time for BVRSD from 1977 and 1982, and he was not wrongly excluded from membership in the MTRS during those years.

The Petitioner established membership in the MTRS when he became a full-time employee in 1984. The Board has a regulation allowing for the purchase of "Non-Membership Public Service." 807 CMR 3.03 provides that the "Board will allow proportional credit for any period of non-membership service rendered in a Massachusetts governmental unit, the purchase of which is authorized under G. L. c. 32, s. 3 (5) or 4 (2) (c). … Such non-membership service includes, but is not limited to, service as a teacher on a per diem substitute basis or on any other basis that is less than half-time." Under 807 CMR 3.03 (4), this regulation "shall apply to members whose effective date of retirement is after May 24, 2001." The Board calculated proportional credit under this regulation for the Petitioner's period of part-time, non-membership service to be 3.0646 years. The Petitioner agrees that if he is not deemed to have worked half-time as a teacher between 1977 and 1982, 3.0646 is the correct amount of creditable service to which he is entitled.

The decision of the Board is affirmed. The Petitioner is entitled to purchase 3.0646 years of creditable service for his part-time non-membership service rendered between 1977 and 1982.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 1/18/08


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