COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Vincent Pagliarulo,

Petitioner

v. CR-06-446

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Vincent Pagliarulo, pro se

39 Chaucer Street
Boston, Ma. 02128

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, Vincent Pagliarulo, is appealing the June 30, 2006 decision of the Respondent, Teachers' Retirement System, declining to include as regular compensation for retirement purposes the compensation he received for working two extra days during the summers of 2003 through 2006 as a guidance counselor for the Town of Billerica Public School System (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 February 26, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. Washington St., Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 - 11). The Petitioner's Pre-hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" for identification. The Petitioner testified in his own behalf. Thomas Woodbury, Guidance Director for the Billerica Public School System, testified on behalf of the Respondent. 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, Vincent Pagliarulo, d.o.b. 9/30/48, commenced his employment as a teacher in September of 1970 with the Arlington, Ma. Public School System (testimony of the Petitioner).

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

3. In October of 1973, after teaching for three years in Arlington, the Petitioner took a position as a guidance counselor with the Billerica Public School System. He remained in that position until July 1, 2006, when he retired with superannuation retirement benefits (testimony of the Petitioner).

4. Commencing in 1981 and continuing until the time of his retirement, the Petitioner was required to work certain days during the summer months in order to prepare for the beginning of school (testimony of the Petitioner).

5. During the three summers prior to his retirement in July of 2006, the Petitioner worked an additional twelve days (testimony of the Petitioner).

6. Retirement deductions were taken from the compensation that the Petitioner received for working these twelve additional days during the summer (Ex. 1).

7. The position of guidance counselor was covered by Collective Bargaining Agreements (CBA) between the Billerica School Committee and the Billerica Teachers' Association (Exhibits 3 & 4, testimony of the Petitioner).

8. The CBA covering the years 2000-2003 contains the following provision: "Guidance counselors may be called upon to work, when necessary, at a pro rata reimbursement for two (2) weeks of the summer recess" (Exhibit 3).

9. The CBA covering the years 2003-2006 contains the identical provision with respect to summer work for guidance counselors (Exhibit 4).

10. In or about June of 2006, the Petitioner filed an application for superannuation retirement benefits (testimony of the Petitioner).

11. On June 30, 2006, the Teachers' Retirement System notified the Petitioner that only ten of the twelve days he worked during the period of 2003-2006 would be included as regular compensation in the calculation of his superannuation retirement benefit (Exhibit 1).

12. On July 10, 2006, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 1).

CONCLUSION

The issue in this appeal is whether or not the two additional days' compensation paid to Mr. Pagliarulo for his summer work as a guidance counselor constitutes regular compensation for retirement purposes.

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

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…In the case of a teacher employed in a public day school…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…

807 CMR 6.02(2)(b) of the Teachers' Retirement System regulations specifically excludes from the definition of regular compensation the following:

Any amounts paid for work performed during the summer months unless the member's position in which he/she is employed during the school year requires that he/she work for 11 or 12 months and the annual contract provides for the same (emphasis supplied).

In this case, the two pertinent Collective Bargaining Agreements provide that guidance counselors may be called upon to work for "two (2) weeks of the summer recess" (emphasis supplied). The Teachers' Retirement System viewed the contract language as an extended work year. It then applied the ordinary meaning of words to the contract language and included ten additional work days or two school weeks as regular compensation for the work performed by Mr. Pagliarulo as a guidance counselor during the summer months. The Petitioner argues that he was required to work an additional two weeks during the summer recess. He further argues that the contract language of two weeks means fourteen days as there are seven days in a week. As such, he asserts that the additional two days that he worked during the summers beyond the ten days already awarded him by the Teachers' Retirement System should be considered as regular compensation in the calculation of his superannuation retirement benefit.

Notwithstanding the Petitioner's assertion, no evidence was presented to establish that the language of the CBA referred to anything other than a normal school work week, i.e., Monday through Friday. The CBA does not reference working on Saturdays and Sundays. Moreover, the Petitioner worked only twelve days each summer and not fourteen days. As such, he could not have been required, as he argued, to work fourteen days during the summer recess. Thomas J. Woodbury, the Director of Guidance for the Billerica Public School System, testified that guidance counselors were required to work an additional twelve days, not fourteen days, each summer.
Since Mr. Pagliarulo had retirement deductions taken from his summer pay, he is entitled to a refund of those deductions for the two additional days he worked during the summers in question.

The decision of the Teachers' Retirement System is hereby affirmed. Only ten days of the compensation that Mr. Pagliarulo received for performing services as a guidance counselor during the summers in question are includable as regular compensation in the calculation of his retirement benefits.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 4/14/08


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