COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Rhonda Sowden,

Petitioner

v. Docket No. CR-06-246

Norfolk County
Retirement System,

Respondent


Appearance for Petitioner:

Richard A. Mullane, Esq.

Mass. Teachers Association
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

Michael J. Pacinda, Esq.

Murphy Hesse Toomey & Lehane
300 Crown Colony Drive
Quincy, MA 02169

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Rhonda Sowden filed a timely appeal under G. L. c. 21, s. 16 (4) of the March 29, 2006 decision of the Norfolk County Retirement Board not to allow her to purchase credit for her work with the Bi-County Collaborative from January 1973 through June 30, 1977. (Exs. 1, 2)

I held a hearing on October 23, 2007 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 6) 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. I took administrative notice of St. 1974, c. 797; St. 1975, c. 323; St. 1978, c. 481; the Superior Court decision in the case of Gomes v. CRAB, CA No. 94-5927-B, 10/11/1995; and DALA decisions in the cases of Dora G. Fuentes v. State Board of Retirement, CR-92-029 (DALA dec. 11/4/1994, no CRAB dec.); Amanda Chalmers v. State Board of Retirement, CR-92-460 (DALA dec. 10/15/1993, no CRAB dec.) and Richard Talbot v. Teachers' Retirement Board, CR-96-1552 (DALA dec. 2/17/1995; no CRAB dec.). The record closed on November 28, 2007 with the filing of briefs.

FINDINGS OF FACT

1. Rhonda Sowden, d.o.b. 4/18/1949, is employed in the King Philip Regional School District as a full-time Teaching Assistant and is a member of the Norfolk County Retirement System. (Testimony, "A")

2. By letter of January 26, 1977, the Commissioner of Education, under the provisions of G. L. c. 40, s. 4E, approved the April 16, 1976 agreement, known as the Bi-County Collaborative, entered into by the School Districts of Attleboro, Easton, Foxboro, Franklin, Norfolk, North Attleboro, Norton, Plainville, Dighton/Rehoboth, Seekonk, Somerset, Swansea, Wrentham, Manfield and the King Philip Regional School District to jointly conduct educational programs and/or services for special needs students as defined by G. L. c. 71B, (Chapter 766 of the Acts of 1972). (Ex. 6)

3. The Bi-County Collaborative established an educational Collaborative Trust Fund to deposit all funds and reimbursements from the member school districts, grants from the federal government, state government, charitable Foundations, private corporations or any other source. (Ex. 6)

4. From September 1, 1977 through January 31, 1980 Ms. Sowden worked full-time as a teaching assistant for the Bi-County Collaborative. At that time, work at the Collaborative did not qualify for membership in the state retirement system. (Ex. 3)

5. Ms. Sowden did not pay into social security during that time. (Testimony)

6. Ms. Sowden requested that the Board allow her to purchase credit for her work at the Bi-County Collaborative.

7. The Board denied her request because the State Board of Retirement refused to accept liability for this service because Ms. Sowden was not eligible for membership in the State Retirement System based on this service, and she was not erroneously excluded or omitted from membership. (Exs. 4, 5) Ms. Sowden appealed. (Ex. 2)

CONCLUSION AND ORDER

The decision of the Norfolk County Retirement Board is reversed. Rhonda Sowden shall be permitted to purchase credit for her work as a teaching assistant for the Bi-County Collaborative from September 1, 1977 to January 31, 1980.

G. L. c. 32, s. 3 (5) provides in pertinent part:

Any member of any system who had rendered service as an employee
of any governmental unit other than that by which he is presently
employed, for any previous period during which the first governmental
unit had no contributory retirement system, … or in a position which was
not subject to an existing retirement system, or which was specifically
excluded therefrom but which would be covered under the law now in
effect …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 …

In 1985, G. L. c. 40, s. 4E was amended by St. 1985, c. 631 to include the following language:

The board of directors of the education collaborative shall be deemed
to be a public employer and have the authority to employ personnel,
including teachers, to carry out the purposes and functions of the education collaborative.

The education collaborative shall be deemed to be a public entity and
shall have standing to sue and to be sued to the same extent as a city, town
or regional school district.

As a result of this amendment, G. L. c. 32, s.28 (4) (c) was amended to allow collaborative members to become members of the state board of retirement.

[E]ducational collaboratives, as authorized by the provisions of section four E of chapter forty, shall annually reimburse the state board of retirement for the employer's normal cost … of benefits earned during each year by such collaborative employees who are members of the state employees' retirement systems.

Although an education collaborative was not deemed to be a public employer until the amendment of G. L. c. 40, s. 4E in 1985, the issue raised here is whether the Bi-County Collaborative should have been deemed a governmental unit prior to 1985. A governmental unit defined in G. L. c. 32, s. 1 is the commonwealth, or any political subdivision thereof. A political subdivision under the same section is defined, in part, as any city, town or "any other public unit in the commonwealth." An employee under the same section is defined as a person whose regular compensation is paid by any political subdivision of the commonwealth. In view of the fact that the Bi-County Collaborative was formed by a group of towns (each of which is a political subdivision) to act in concert to meet certain educational needs that each town independently would not have been able to meet, and that it was funded in part by funds from the member school committees, and state and federal grants, I must conclude that the Bi-County Collaborative should be deemed to have been a governmental unit prior to 1985 for purposes of purchasing creditable service under G. L. c. 32, s. 3 (5).

The Petitioner is a member of the retirement system who rendered service as an employee of a governmental unit other than that by which she is presently employed, during a time when the governmental unit (the Bi-County Collaborative) was not subject to an existing retirement system, "but which would be covered under the law now in effect."

I note that my decision in the Fuentes case (concluding that an education collaborative was not a governmental unit until 1985 when the legislature amended G. L. c. 40, s. 4E to recognize the collaborative as a public employer) was based on CRAB's decision in Gomes, and was decided prior to the Superior Court decision in the Gomes case. The Superior Court reversed CRAB's decision in Gomes and concluded that a member who worked for the Yarmouth Consortium administering the CETA program was deemed to be employed by "any governmental unit" for the purposes of G. L. c. 32, s.3 (5).

The decision of the Board is reversed. The Petitioner shall be permitted to purchase credit for her service at the Bi-County Collaborative.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 2/6/08


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