COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Constance E. Strauss,

Petitioner

v. Docket No. CR-07-488

Teachers' Retirement System,

Respondent

For Petitioner:

Constance E. Strauss, pro se

121 Island Heights Avenue
Somerset, MA 02726

For Respondent:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.


DECISION

Constance Strauss filed a late appeal under G. L. c. 32, s. 16 (4) of the June 25, 2006 decision of the Teachers' Retirement System to deny her request to purchase credit for her work at the Paul A. Dever State School when she was paid through an 03 subsidiary account. (Exs. 1, 2)

The Petitioner requested that the case be handled as a Submission Without a Hearing under 801 CMR 1.01 (10) (c). (Ex. 3)

By letter of November 20, 2007 I instructed the parties to submit all exhibits and argument no later than December 20, 2007 when the record closed. (Ex. 11)
I admitted documents into evidence. (Exs. 1 - 11) I marked the Board's written submission "A" for identification. A list of exhibits appears on the last page of this decision.

FINDINGS OF FACT

1. Constance Strauss, d.o.b. 4/22/1951, retired for superannuation under Retirement Plus effective June 30, 2007. She last worked as a teacher in the Westport public schools from September 1, 1987 to June 30, 2007. (Exs. 2, 7, "A")

2. Ms. Strauss was an employee of the Paul A. Dever State School from August 1 - 28, 1971; July 2 - September 2, 1972; June 17, 1973 - October 22, 1977; and January 7, 1979 - September 1, 1987. (Ex. 2)

3. From February 27, 1978 to January 5, 1979 Ms. Strauss worked half-time at the Dever School as a recreation consultant, paid under an 03 account. (Exs. 2, 5, 7)

4. On January 7, 1979 Ms. Strauss re-entered state service at Dever in substantially the same position as when she was paid as a consultant. (Ex. 2)

5. Ms. Strauss requested to purchase credit for her 03 service. By letter of June 25, 2006 the Board denied Ms. Strauss's request because "[i]t has never been the policy of the Massachusetts Teachers' Retirement System to allow membership based on consulting services." (Ex. 1)

6. By letter of March 16, 2007 Ms. Strauss renewed her request, citing a recent change in the law with respect to 03 service. (Ex. 4)

7. By letter of June 28, 2007 Ms. Strauss appealed the Board's letter of denial of June 2006. (Ex. 2)

CONCLUSION AND ORDER

The decision of the Teachers' Retirement System is affirmed, but not for the reasons stated in the Board's denial letter. Constance Strauss may not purchase credit for her work as a recreation consultant at the Paul A. Dever school from February 27, 1978 to January 5, 1979 because she was paid for this service through an 03 subsidiary account.

G. L. c. 32, s. 3 (5) provides in pertinent part:
[A]ny member of any system who had rendered service as an
employee of any governmental unit other than that by which
he is presently employed, in a temporary, provisional or
substitute position and who was excluded from membership
by the rules of any board, 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 the governmental unit by which he
is presently employed … (emphasis supplied)

The definition of employee in G. L. c. 32, s. 1 specifically excludes, since its amendment in August 1973, "any person whose compensation for service rendered to the commonwealth is derived from the subsidiary account 03 of the appropriation of any … agency …"

Because the Petitioner was paid from an 03 account for her work as a recreation consultant from February 1978 to January 1979, she was not an employee and is therefore not eligible to purchase credit for this service.

Chapter 161 of the Acts of 2006, codified at G. L. c. 32, s. 4 (1) (s), provides that any member in service "of the state employees' retirement system" who immediately prior to establishing membership in the system was compensated for service to the commonwealth as a contract employee for any agency may purchase up to four years of credit for that service.

This amendment applies only to members of the State Board of Retirement. It does not apply to the Petitioner because she is a member of the Teachers' Retirement System. Jacques v. Teachers' Retirement System, CR-07-230 (DALA dec. 8/24/07; no CRAB dec.)

Furthermore, the Petitioner filed a late appeal under G. L. c. 32, s. 16 (4). The Petitioner had fifteen days from the date of the Board's decision on June 25, 2006 to appeal the Board's denial. The Petitioner did not file an appeal until June 2007, a full year after the Board' decision. The Contributory Retirement Appeal Board is therefore without jurisdiction to hear this appeal, and the appeal must be dismissed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


____________________________________________
Maria A. Imparato
Administrative Magistrate

DATED: 3/12/08

EXHIBITS

1 Notice of Retirement Board action, 6/25/06
2 Letter of Appeal, 6/28/07
3 Petitioner's request for Submission Without a Hearing, 11/15/07
4 Petitioner to Board, 3/16/07
5 Wrentham Developmental Center to Board, 8/21/00
6 Request for Verification of 03 or 07 Service, 12/8/1983
7 Notice of Estimated Retirement Benefit, 6/1/07
8 Retirement Application, Part 2
9 Transfer of Member's Account to Another Board
10 Counseling Interview Record
11 Magistrate to parties, 11/20/07
"A" for identification Board's submission


This information is provided by the Division of Administrative Law Appeals.