COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

Suffolk, ss.

Appeal of:

Albert Bouchard,

CR-06-1067
Petitioner Dated: 3/5/10

v.

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Brian Riley, Esq.
Will Evans, Esq.

Massachusetts Teachers Association
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

Robert Fabino, Esq.

Massachusetts Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION

During the summer months in the years 1965 through 1968, the Petitioner was a student worker and not a regular employee of the Bristol County Agricultural School. He is not eligible to purchase this prior part-time non-membership service either under the provisions of G.L. c. 32, § 3(5) or § 4(2). The decision of the Respondent denying him creditable service for that period of time is affirmed.


DECISION

Pursuant to G.L. c. 32, §16(4), the Petitioner, Albert Bouchard, is appealing the November 9, 2006 decision of the Respondent, Teachers' Retirement System, denying his request to purchase creditable service for the period of time between 1965 and 1968 when he performed student labor as part of his degree program at the Bristol County Agricultural School (BCAS.) 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 January 6, 2010 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, MA. Various documents were entered into evidence at the hearing. (Exhibits 1 - 14.) 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.

FINDINGS OF FACT

Based on the testimony and evidence presented, I make the following findings of fact:

1. The Petitioner, Albert Bouchard, d.o.b. 9/24/50, taught agricultural mechanics at the Bristol County Agricultural School (BCAS) from 1976 through 2006. He was a member of the Teachers' Retirement System during that time. (Testimony of the Petitioner.)

2. BCAS is a regional vocational high school located in Massachusetts. It is a fully accredited high school that includes a regular academic curriculum that runs from October 1st to April 15th. (Testimony of the Petitioner.)

3. The Petitioner attended BCAS as a student from September of 1964 through June of 1968. (Testimony of the Petitioner.)

4. BCAS emphasizes agriculture, landscaping, greenhouse gardening, and animal husbandry as part of its vocational mission. Various animals including sheep, cows, pigs, and birds live on the property and there is a working dairy farm on the campus. (Testimony of the Petitioner.)

5. As part of the curriculum during the time that he attended high school at BCAS from 1964 through 1968, the Petitioner was required to work during the summers in an approved program that involved the field of agriculture. This summer time work was required in order for him to graduate from BCAS. (Testimony of the Petitioner.)

6. During the summer of 1965, the Petitioner worked twenty-five hours per week at a repair shop located on the BCAS campus taking care of farm machinery. (Testimony of the Petitioner.)

7. During the summer of 1966, the Petitioner worked thirty hours per week on a dairy farm run by BCAS. He worked thirty hours per week during the summer of 1967 and forty hours per week during the summer of 1968 raising corn in fields owned and operated by BCAS. (Testimony of the Petitioner.)

8. The Petitioner was paid on an hourly basis for the work that he performed during all the summers of 1965 through 1968. (Testimony of the Petitioner.)

9. Taxes were deducted from the compensation that the Petitioner received during the summers. He received a W-2 from BCAS each year relating to his summer employment. However, he did not become a member of any retirement system as a result of his employment during the summers of 1965 through 1968. (Testimony of the Petitioner.)

10. Although BCAS had dormitory space for students who were employed at the school, the Petitioner lived at home and commuted to the school. (Testimony of the Petitioner.)

11. On April 11, 2006, the Petitioner filed a request to purchase as creditable service the time he was employed as a part-time student worker at BCAS during the summers of 1965 through 1968. (Exhibit 3.)

12. On July 24, 2006, the Petitioner purchased approximately one year and six months of the non-membership service he rendered as a student worker while attending BCAS. (Exhibit 4.)

13. The Petitioner retired with superannuation retirement benefits effective September 29, 2006. (Testimony of the Petitioner.)

14. By letter dated November 9, 2006, the Teachers' Retirement System informed the Petitioner that his purchase of part-time non-membership creditable service had been erroneously issued. The Teachers' Retirement System then made the appropriate adjustment to his superannuation retirement benefit to reflect the subtraction of the year and six months of creditable service. (Exhibit 1.)

15. By letter dated November 22, 2006, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board. (Exhibit 2.)

CONCLUSION

The Petitioner is not entitled to purchase creditable service for his prior part-time non-membership service for BCAS while he was a student at the school as he was not employed as a teacher during that time and was not eligible for membership in the Teachers' Retirement System. Nor he was eligible to purchase this creditable service under the provisions of G.L. c. 32, § 3(5) or § 4(2)(c).

The facts in this case are virtually identical to the facts in the case of James Santos v. Teachers' Retirement Board and Bristol County Retirement Board, CR-04-70 (DALA 2005), reversed (CRAB 2006). In that case, CRAB held that Petitioner also a student worker at BCAS during the same period of time as Mr. Bouchard was not entitled to purchase creditable service for his work while he was a student at the school.

In Santos, CRAB noted that there are two provisions of the statute, i.e., G.L. c. 32, that pertain to the issue of creditable service for prior non-membership service. Section 3(5) Credit for Member for Intra-State Service in Governmental Units Where No System Existed provides for creditable service for prior non-member service in governmental units other than that by which the member is currently employed. However, as CRAB further notes Section 3(5) specifically refers to service in a temporary, provisional or substitute position and makes no reference to part-time service.

Section 4(2)(c), on the other hand, provides that the board may grant creditable service for prior part-time provisional, temporary, temporary provisional, seasonal or intermittent employment or service rendered by a member during such period as he or she was not eligible for membership provided that it has adopted rules and regulations approved by the actuary permitting it do so.

In Santos, CRAB held that in light of the omission of part-time service in section 3(5) relating to service "in a governmental unit other than that by which he is presently employed," section 4(2)(c) should not be construed to include part-time service in such other governmental units. Rather, CRAB held that section 4(2)(c) applies only to previous periods of "part-time provisional, seasonal or intermittent employment or service" in the same governmental unit. CRAB added that "while the wisdom of excluding such prior non-membership part-time service in another governmental unit when service is granted for prior non-membership temporary, provisional, or substitute service is not readily apparent, it is beyond the power of this Board to make such policy decisions."

Arguing in his own behalf, the Petitioner asserts that his case may be distinguished from the Santos case as Mr. Santos lived at BCAS while Mr. Bouchard commuted from home while he was attending school and working part-time. As Mr. Santos applied the earnings he made from BCAS toward the cost of room and board, he did not receive any substantial earnings and was not issued a W-2 form yearly, unlike Mr. Bouchard. The fact that the Petitioner received actual compensation that was indicated on his yearly W-2 forms rather than room and board in exchange for his employment, like Mr. Santos, does not trigger the application of either section of the statute to award creditable service for part-time non-membership service in another governmental unit.

The ruling by CRAB in the matter of James Santos v Teacher's Retirement Board and Bristol County Retirement Board, supra, which has not been appealed, is controlling in this matter.

Accordingly, the Petitioner is not eligible to receive creditable service for his part-time non-membership service. The decision of the Teachers' Retirement System is hereby affirmed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 3/5/10