COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Robert Whitmore & Betsy Hall ,


Petitioner

v. Docket Nos. CR-06-620, CR-06-625

Teachers' Retirement System,


Respondent


Appearance for Petitioners:

Ira Fader, Esq.


Massachusetts Teachers Association
20 Ashburton Pl.
Boston, MA 02108


Appearance for Respondent:

Robert Fabino, 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 Petitioners, Robert Whitmore & Betsy Hall, are appealing the September 6, 2006 decisions of the Respondent, Teachers' Retirement System (TRS), declining to include as regular compensation for retirement purposes the compensation they received for performing additional duties as guidance counselors with the Plymouth Public School System (Exhibits 1 & 7). The appeals were 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 April 17, 2008, at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA Various documents were entered into evidence at the hearing (Exhibits 1 -17). 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 Petitioners testified in their own behalf. 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. Petitioner Betsy Hall commenced employment as a teacher in September of 1968 with the Plymouth, MA Public School System. She became a member of the Teachers' Retirement System at that time. In 1981, she assumed the position of guidance counselor (testimony of Betsy Hall).

2. Petitioner Robert Whitmore commenced employment as a teacher with the Plymouth, MA Public School System in 1965. He became a member of the Teachers' Retirement System at that time. In 1974, he assumed the position of guidance counselor (testimony of Robert Whitmore).

3. Both Petitioners held the position of guidance counselor until each of them retired on June 30, 2006 (testimony of the Petitioners).

4. The Petitioners' duties as guidance counselors included individual student counseling, parent counseling, acting as a mentor teacher, and performing management functions when required (testimony of the Petitioners).

5. The Petitioners worked a number of additional days before school commenced and after school closed fulfilling their duties as guidance counselors (testimony of the Petitioner).

6. During the 2003-2004 school year, 2004-2005 school year, and 2005-2006 school year, the Petitioners worked varying number of days, ranging from eight to ten days each summer, performing guidance counselor duties. They were paid on a per diem basis for this summer work. Retirement deductions were taken from the compensation they received for working the additional days during the summers (Exhibit 12, testimony of the Petitioners).

7. During the three school years in questions, i.e., 2003-2004, 2004-2005, and 2005-2006, the Petitioners were covered by a Collective Bargaining Agreement between the School Committee of the Town of Plymouth and the Education Association of Plymouth and Carver (Exhibit 14).

8. Neither the stipendiary position, i.e., summer guidance work, nor its remuneration was set forth in the Collective Bargaining Agreement covering the 2003-2006 school years (Exhibit 14).

9. During the pendency of the 2003-2006 Collective Bargaining Agreement, the number of extra days worked by guidance counselors in the summer was determined by mutual agreement between the school principal and each guidance counselor. Guidance counselors had the choice of whether or not to work (Exhibit 13).

10. In March of 2006, both Petitioners submitted applications for superannuation retirement benefits with the same effective retirement date, June 30, 2006 (Exhibits 4 & 9).

11. By letter dated September 6, 2006, the Teachers' Retirement System sent the Petitioners formal notification that the compensation they received for performing extra days of work as guidance counselors was excluded from regulation compensation as there was no specific language in the collective bargaining agreement pertaining to this additional service (Exhibits 1 & 7).

12. On September 14, 2006, and September 18, 2006, Petitioner Whitmore and Petitioner Hall, respectively, filed timely appeals of this decision with the Contributory Retirement Appeal Board (Exhibits 2& 9).


CONCLUSION


The issue in this appeal is whether or not the amounts paid to Mr. Whitmore and Ms. Hall for their extra days of work as guidance counselors constitute 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 the current case, the Collective Bargaining Agreement did not require that the Petitioners work for 11 or 12 months per year. Neither the stipendiary positions for summer guidance work nor their remunerations were set forth in the Collective Bargaining Agreement. The evidence demonstrates that the Petitioners worked variable schedules for these additional duties and that the number of days worked was not consistent from school year to school year.

The Petitioners argued that they were expected to work additional days in order to perform the necessary duties of a guidance counselor. As such, the Petitioners argued that their decision to work additional days was not voluntary.

Notwithstanding that argument, no evidence was introduced at the hearing to demonstrate that the Petitioners were required to work these additional days. Dr. Carol J. Young, the Assistant Superintendent for Human Resources, indicated in a letter to the TRS that during the pendency of the 2003-2006 Collective Bargaining Agreement "guidance counselors had the choice of whether or not to work." Moreover, no evidence was introduced at the hearing to demonstrate that the Petitioners would have suffered adverse consequences had they decided not to work any additional days either before school started or after school ended.

While the Petitioners are to be commended for their long-standing dedication to the Plymouth Public School System, nonetheless, there is no evidence that they were contractually required to work the additional days in question.

The Petitioners also argued that the holding in the case of William Bulger v. CRAB, 447 Mass. 651, 856 N.E. 2d 799 (2006) is relevant to the determination as to whether the stipend they received for performing guidance counselor duties is regular compensation to be used in the calculation of their superannuation retirement benefit. In Bulger, the Supreme Judicial Court held that in determining whether payments to an employee should be used in the calculation of that employee's retirement benefits, those payments must be "recurrent, regular and ordinary" in order to be considered as regular compensation. 447 Mass at 659. In the current case, the payments made to the Petitioners for performing their guidance counselor duties were not "recurrent, regular, and ordinary" as these payments varied from summer to summer, depending on the number of days that each of them worked. Moreover, the Petitioners were paid on a per diem basis for their additional days of work. In Hallet v. CRAB, 725 N.E. 2d 222 (2000), the Massachusetts Supreme Judicial Court held that "when the Legislature addressed teachers, it provided that only 'salary' for additional services is part of regular compensation." The Court then noted that "If we were to include the plaintiff's hourly payments as part of his 'salary,' we would not be giving force to all the words of the statute." Mr. Hallet was a teacher who, in addition to his normal teaching duties, taught driver's education both before and after the school day. In accordance with the Collective Bargaining Agreement, Mr. Hallet was paid for teaching driver's education on a per diem basis.

The Supreme Judicial Court noted in Hallet, supra at 224, that salary as included in the definition of regular compensation refers to a "fixed yearly salary or periodic amount of pay depending upon the period of employment rather than upon the number of days or hours worked within that period." In the present case, the Petitioners' compensation for their additional guidance counselor services depended upon the number of days that they worked rather than upon a specific period of employment.

Since the Petitioners had retirement deductions taken from the compensation they received for the extra days of work, they are entitled to a refund of those deductions.
Based on the foregoing, the decision of the Teachers' Retirement System to the effect that the compensation that the Petitioners received for performing additional days of work during the summer as guidance counselors is not regular compensation for retirement purposes is affirmed.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 6/27/08


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