COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Donna Lally,

Petitioner

v. Docket No. CR-06-251

State Board of Retirement,

Respondent


Appearance for Petitioner:

Richard A. Mullane, Esq.

Massachusetts Teachers Association
Division of Legal Services
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

Emily J. Robbins, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

Academic/Advising Counselor at a community college whose job routinely and for a majority of her time, involves direct counseling of students in identifying and securing extra academic services while developing their academic plans, holds a "teaching position" in satisfaction of G.L. c. 32, § 3(4) criteria, and is eligible for creditable service for her prior work as a teacher in a Maine public school.


DECISION

Pursuant to G. L. c. 32, § 16(4), the Petitioner, Donna Lally, is appealing the April 3, 2006 decision of the Respondent, State Board of Retirement, denying her request for creditable service under G. L. c. 32, § 3(4). (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held April 8, 2008, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G. L. c. 7, § 4H.

Various documents are in evidence. (Exs. 1 - 15) One tape was used. The
parties entered into some stipulations of fact. ("A") The Petitioner testified. Both parties made arguments on the record.

FINDINGS OF FACT

1. Donna Lally, d.o.b. 1/13/50, received a degree in education at Salem State College in 1971. She received Massachusetts Department of Education teacher certification (which has now run out), and worked as an elementary school aide in the Salem Public Schools in the spring of 1972. She received an advanced degree in business in 1980. (Ex. 4. Testimony.)

2. During the 1972-1973 school year, Ms. Lally was a second grade teacher in the Wells, Maine public school system. She had her own classroom of about thirty-five students, and worked full-time. She held teacher certification in Maine. ("A". Exs. 3 & 6. Testimony.)

3. Ms. Lally was a member of the Maine State Retirement System during her year of teaching in Wells, Maine. When she left this job, she withdrew her accumulated deductions. She presently has no rights to any retirement benefits in the Maine State Retirement System. (Exs. 3 & 6. Testimony.)

4. Ms. Lally taught in Los Angeles for the 1973-1974 school year in a
parochial school. Thereafter, Ms Lally worked in administration at a hospital school of nursing and at a school of pharmacy. (Testimony)

5. Ms. Lally began employment at Massachusetts Bay Community College (MBCC) in September 2000 as a full-time Academic/Advising Counselor, the job she continues to hold. This is a twelve month per year professional staff position. She is not part of the faculty. From the start of the 2006 academic year, she has held "tenure" in this position. (Ex. 7) MBCC is an accredited community college in the Massachusetts public higher education system, and it is run by a Board of Trustees. She is a member of the State Retirement System. ("A". Exs. 7 & 11. Testimony.)

6. Ms. Lally's employment is subject to collective bargaining. She is a member of the same union as the MBCC faculty and other MBCC professional staff. ("A". Exs. 13, 14 & 15. Testimony.)

7. The collective bargaining agreements Ms. Lally has been subject to have defined "Professional Staff Member" as "a unit member whose primary duties are other than teaching." (Exs. 13, 14 & 15.)

8. The Massachusetts Board of Higher Education has a classification specification for Massachusetts Community Colleges for the job titled Academic Counselor, the classification of Ms. Lally's job at MBCC. This specification sets forth an overall purpose for the position "to perform academic advisement of college students … counseling/advising students on degree/career programs." Included in the specification are vocational education students. Ms. Lally does not work with such students. (Ex. 7. Testimony.)

9. The classification specification provides examples of the kinds of "essential function" tasks Ms. Lally has to perform. To "develop academic plans of
study," the specification provides the following examples of required tasks:
Conducts career advising, career assessments, and transfer advising; screens, interviews, evaluates, and processes incoming students for general studies competency and registers [them] into appropriate academic curricula; evaluates admission applications, registration documents, transcripts, placement test scores, and transfer credits; advises students regarding their academic plan, course selection/sequencing, curriculum/concentration selection and changes, and transition issues; provides information regarding course degree requirements and transfer requirements; monitors academic progress of students; assists students in registering, adding, or withdrawing from courses; assists students in obtaining developmental and tutorial assistance; assigns academic advisors and notifies students/faculty of advisor assignments; alerts faculty of students experiencing academic difficulties; participates in new student orientations; coordinates activities with other programs and specifically-funded programs.

(Ex. 7)

10. The classification specification sets forth background qualifications for the job:
Master's degree in Education, Counseling, Psychology or closely related field; with three (3) years experience and/or training involving college admissions, academic advisement, career development, or program/project
management; or an equivalent combination of education, training, and experience.

Ex. 7)

11. At the time of her hire, the posting for Ms. Lally's position of Advising Counselor, included a general statement of duties that read as follows:
Serves as advising counselor and works with students to develop academic plans of study. Coordinates participation in grant-funded programs for vocational education, job training, and job placement. Performs administrative tasks associated with department activities. Interacts with various agencies/individuals and maintains professional knowledge in applicable areas ….

Reports to the Director of Advising and Assessment.

(Ex. 7)

12. The job posting for Ms. Lally's Advising Counselor job also set forth examples of tasks to be performed that mirrored the Academic Counselor classification specification description of duties. (Ex. 7. Testimony.)

13. The same duties as contained in the 2000 job posting formed the basis for what Ms. Lally and her supervisor agreed were her essential job functions for purposes of a Fiscal Year 2004-2005 Professional Staff Position Description. They both signed this agreement on June 24, 2004. This job description listed particular general duties and then broke them down into specific tasks. The duties listed in this Professional Staff Position Description were consistent with the classification specification job description. (Ex. 8. Testimony.)

14. In addition to her counseling work with students, Ms. Lally is involved in various campus activities and meetings. A written accounting is done of what activities and meetings she attends. This is titled, "College Service Activities." Events can include: professional staff meetings, faculty meetings, career services meeting, Advising Department meetings, orientation survey meetings, service learning meeting, training faculty advisor meeting, meetings to help faculty advisors, search committee meeting on transfer/advisor work, and attending conferences. (Ex. 9)

15. When Ms. Lally meets with students for advisory sessions, she enters the session into her "Student Advising Log" document. This is broken down by month. Her log entries covering January through May 2005 showed 771 sessions; from June through December 2005, 1,350 sessions; from January through May 2006, 856 sessions; and from June through December 2006, 1,477 sessions. Each session typically lasts from fifteen to thirty minutes. Eighty to eighty-five percent of each workday involves one on one time with students, and some occasional group sessions with students and other counselors. (Ex. 10. Testimony.)

16. Ms. Lally also works closely with MBCC faculty to address student needs. She has put together workshop trainings for faculty members on student counseling issues. She has worked on the Advising Manual used at MBCC. She has put together other workshops such as on careers in the health field. She has steered individual students to specialists to help them get their particular needs met such as for tutoring, with learning specialists, and with personal counseling for stress and family crises. (Ex. 12. Testimony.)

17. Although most, about sixty percent, of the MBCC students are full-time students, about forty percent are part-time students, and some just taking one course a week. The MBCC education program covers two years, and the average age of an MBCC student is about twenty-seven. Most of the students hold jobs. Often students have to leave MBCC for periods of time so that they attend MBCC for longer than two years. Although the college year is September through May, there are also summer sessions. (Testimony)

18. Ms. Lally works as part of the "Advising Center" at MBCC. The "Advising Manual for Faculty & Staff Academic Advisors," put out in September 2007, describes the Center as;
committed to assisting students in the development of meaningful academic plans that are compatible with their professional and life goals … [guiding] students from their first contact with the College through graduation and beyond … introduce incoming students to the opportunities and resources of the College, inform new and returning students of the requirements of academic programs, assist students with the selection of a major and the appropriate courses to ensure academic success, and counsel students regarding transfer opportunities.
(Ex. 12)

19. The Advising Manual lists "core values" of the National Academic Advising Association that are followed, including:
Advisors help students develop a perception of themselves and their relationship to the future … encourage self-reliance by helping students make informed and responsible decisions, set realistic goals, and develop thinking, learning and life management skills. Advisors are knowledgeable about and sensitive to federal, state, and their own institution's policies and procedures … give accurate and timely information, maintain regular office hours, and keep appointments … respect the rights of students to have information about themselves kept confidential …. Advisors seek out resources provided by others and make referrals as necessary.

(Ex. 12)

20. The Advising Manual also includes a checklist of matters to address in preparation for a meeting with the student, when at the meeting, and then after the meeting. The Advising Manual contains a section on "Advising Tips by Subject." This section lists courses and then discussion points to raise with the student about whether the course would be suitable for his or her needs and academic plan. (Ex. 12)

21. In and around June 2005, Ms. Lally sought to purchase her prior service in Wells, Maine for creditable service through G. L. c. 32, § 3(4). Thereafter, she received a letter from the State Board of Retirement in December 2005 explaining she was not eligible to apply for this creditable service because of her MBCC position. Ms. Lally responded to this in a letter of March 7, 2006 to the State Board of Retirement. She argued that her current job "is very similar to a Guidance Counselor at the High School level … specialists who are frequently in the classroom instructing students on important and necessary information needed for a successful career at a community college." ("A". Exs. 3 & 4. Testimony.) She contended:
I educate students on a daily basis in various settings, one on one, in groups and in the classroom developing academic plans for their specific needs, and helping prepare them for entrance/transfer to 4 year colleges … I work closely with other faculty and deans as a liaison for the students on various issues.

(Ex. 3)

22. The State Board of Retirement issued a letter of decision to Ms. Lally on April 3, 2006 denying her request for creditable service for her out of state prior teaching service from 1972-1973. Ms. Lally filed a timely appeal. ("A". Exs. 1 & 2.)


Conclusion


Section 3(4) reads as follows in pertinent part:
Any member in service … who is employed in a teaching position or as a principal, supervisor or president in a school or college, or employed in the department of education as supervisor of teachers or of educational methods, who had rendered service in any other state for any previous period as a teacher … in the public day schools … under exclusive public control and supervision, … 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 a public school of the commonwealth … during the period the service was rendered …. [N]o credit shall be allowed and no payment shall be accepted for any service for which the member shall be entitled to receive a retirement allowance from any other state …. Such member shall furnish the board with such information as it shall require to determine the amount to be paid and the credit to be allowed under this subdivision ….

The record shows Ms. Lally worked the 1972-1973 school year in Wells, Maine as a second grade full time classroom teacher in the public school system, and that she has no present rights to any retirement benefits connected with that service. The case law makes clear that the function performed in the Section 3(4) out of state prior service must involve work that is equivalent to the work done by the positions listed in G.L. c. 32, §1's definition of teacher. See, Lachance v. Contributory Retirement Appeal Board (CRAB), Mass. Appeals Court, 2004-P-81, Rule 1:28 (1/11/05); Mackay and Manning v. Contributory Retirement Appeal Board (CRAB), 56 Mass. App. Ct. 924, 925 (2002); and, Squeglia v. Teachers' Retirement System, Suffolk Superior Court Civil Action No. 00-2416, King, J., (5/2/01). Ms. Lally's prior service satisfies this criteria. Section 1's definition of teacher reads in pertinent part as follows:

any person who is employed by one or more school committees or boards of trustees or by any combination of such committees and boards on a basis of not less than half-time service as a teacher, school psychologist, school psychiatrist, school adjustment counselor or school social worker … director of occupational guidance and placement … principal, supervisor or superintendent in any public school … or as a supervisor or teacher of adult civic education, ….

This leaves the issue of whether Ms. Lally's current job is a "teaching position" under Section 3(4). If it is, then she has the right to seek creditable service for her out of state teaching work in Maine. The findings made show that Ms. Lally's MBCC job involves direct work with students on an ongoing basis, and is a professional staff position. It also involves administrative work, but her primary role is to advise students about their academic plans and about ancillary matters to help them achieve their academic goals. She helps them to secure the information and advice they need to develop an effective education plan and to make course choices that will best serve their academic goals. She secures special services that they might need to achieve their academic goals such as tutoring, or locating courses to help with English language and grammar needs. I found Ms. Lally's account of what her job entails to be credible and thorough. I found her account of her duties to be consistent with the job description information in the record. I agree with her that what she is doing is like the work of a high school guidance counselor, a position within the reach of the Section 1 definition of teacher.

If the focus of this appeal was whether Ms. Lally's MBCC job was the out of state prior service job, the case law is not all that supportive of finding such jobs satisfy the Section 1 definition of teacher. In Blanchard-Mitchell v. State Board of Retirement, CR-01-1082 (DALA, 4/12/02), the Director of Student Support Services at New Hampshire Community College was not found to satisfy the provision of being a G. L. c. 32, § 1 teacher even though the work was done for and often with students. The same outcome was found in Haughey v. Teachers' Retirement System, CR-01-535 (DALA, 12/19/02) where prior service as a College Admissions Counselor and as Assistant Director of Admissions was found to be primarily an administrator job not satisfying the Section 1 definition of teacher in a Section 3(4) case. In Margaret Adams v. Teachers' Retirement System, CR-06-334 (DALA, 5/25/07), work as the Director of Student Financial Aid at an out of state community college was not found to be work eligible for creditable service under Section 3(4) because the supervision done was not over faculty but over the administrative support staff at the college. These cases help interpret what can be Section 1 defined teacher work.

In terms of the Section 3(4) criteria for the current job having to be a "teaching position," case law has found the current position does not need to satisfy the Section 1 definition of teacher; that if the Legislature intended the current job to meet that definition, Section 3(4) would have referred to the current position as a teacher or listed the other positions in Section 1's definition of teacher. This was made clear in Bigwood v. CRAB, Worcester Superior Court Civil Action No. 99-2023B, Toomey, J. (1/5/01). Mr. Bigwood taught high school courses to prisoners inside a prison during day time regular public school hours for the number of days each year that are required for teaching in a regular public high school. He was also supervised by a public school principal. The issue in Bigwood was the location of the teaching work, a prison, and the kind of pupils he was teaching, prisoners. The Court found these matters were not a bar to Mr. Bigwood's ability to seek creditable service under Section 3(4) for some prior out of state teacher work he had performed, because the job he was performing in the prison was a "teaching position."

Nevertheless, a teaching function must be at the heart of Ms. Lally's current job even if a Section 3(4) "teaching position" involves a broader reach of job functions than those found in the Section 1 definition of teacher. The issue becomes whether a job at a community college advising students about academics, and counseling them about available services and resources, primarily involves a teaching function.

Although G. L. c. 32, § 4(1)(p) provides creditable service for prior service of "teaching pupils" under circumstances not pertinent to Ms. Lally's situation, that term is similar to the Section 3(4) term of "teaching position," and case law addressing this term is useful to determining Ms. Lally's case. In Taft v. CRAB & Teachers' Retirement System, Suffolk Superior Court Civil Action No. 04-05441, Kottmyer, J. (10/28/05), Ms. Taft's duties were determined to be too administrative in nature and not sufficiently involving teaching. She supervised and directed an education program but did not teach or work directly with students as a substantial part of her work. In contrast, in Baine v. Teachers' Retirement System, CR-98-900 (DALA, 1/28/00) affirmed, (CRAB, 5/15/01), an Administrative Assistant at Northeastern University's Co-op Program was found to satisfy the Section 4(1)(p) criteria for "teaching pupils," because she was working directly with students to help them develop their academic plans, despite the fact that she was not teaching academic subjects to the students, and despite the fact that her job title sounded like solely an administrative position. These cases, particularly, Baine, supra, support Ms. Lally's position that she holds a "teaching position."

One case that involved a position with duties close to those of Ms. Lally and that involved the issue of whether the current job was a Section 3(4) "teaching position," is Sharac v. State Board of Retirement, CR-03-638 (DALA, 9/17/04) affirmed, (CRAB, 11/16/04). Ms. Sharac's current job was as a coordinator of disability services at a community college. She worked with students with psychiatric or emotional disabilities, or with attention deficit disorder. She developed plans to ensure these students received the accommodations they needed to complete their coursework. She did intake interviews to determine the students' needs, and would help them select courses. She spent seventy percent of her time directly with students. This work was not found to be a "teaching position." She was not considered a faculty member and her work was found to be primarily administrative. But, another Section 3(4) case involving duties close to those of Ms. Lally, is Renda v. Teachers' Retirement System, CR-02-526 (DALA, 6/5/03), although the Section 3(4) issue in this case involved not the current position but the prior out of state position. Mr. Renda worked as an Assistant Registrar and as a Guidance Counselor at a state university. He performed academic counseling, assessed student's class schedules and academic requirements, and also did some administrative work. He provided services as an academic and as a personal counselor to students, including imposing discipline. He was a member of the same union as the university professors, and subject to their collective bargaining agreement. The university classified him as an Instructor. Mr. Renda was found to be entitled to seek creditable service for this prior service. That job was found to be "of an instructional, advisory nature, that more than half of his time was spent in the role of a counselor." Id. at page 2.

Applying these standards to Ms. Lally's situation, I conclude that she has satisfied the criteria of being currently in a "teaching position," to entitle her to seek creditable service for her out of state teaching service in Wells, Maine. The vast majority of her time at MBCC is spent directly counseling students. I found her testimony on this point to be credible and supported by the monthly logs she kept showing a substantial number of regularly scheduled student sessions. (See, Ex. 10) I conclude her duties are closer to those of Mr. Renda and Ms. Baine than to those of Ms. Sharac and Ms. Adams. At a community college like MBCC, as she credibly explained, the role of Advisory/ Academic Counselor is integral to the course choices and overall academic plan a student decides upon. The MBCC student tends to be older, to hold employment, to spread out his or her education at MBCC over more than two years, may need counseling to select courses, and may need help with extra academic services such as with English language and grammar deficits. The fact that Ms. Lally directly and not indirectly counsels students, and the fact that she does this as a primary and essential job function, and in light of the case law, is why she has satisfied her burden of proof in regard to showing she is in a "teaching position." Wakefield Retirement Board v. CRAB, 352 Mass. 499 (1967)

For these reasons, the decision of the State Board of Retirement denying creditable service under Section 3(4) for the out of state public school grade school full time teacher service, is rescinded, and the case is remanded to the State Board of Retirement to permit Ms. Lally to seek this creditable service. Her current position at MBCC is a Section 3(4) "teaching position," so she is qualified to seek this benefit.

SO ORDERED.


DIVISION OF ADMINISTRATIVE
LAW APPEALS


//s//
Sarah H. Luick, Esq.
Administrative Magistrate

DATED: September 25, 2009