COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Ellen T. Brannelly,

Petitioner

v. Docket No. CR-08-753

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Ellen T. Brannelly, pro se

27 Valley Road
Dover, MA 02030

Appearance for Respondent:

James C. O'Leary, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

Petitioner is an active member of the Teachers' Retirement System. She is not eligible under G.L. c. 32, § 3(5) to purchase for creditable service her prior work-study employment while a Boston College student, because she was paid by Boston College, a non-profit private university that is not a governmental unit of the Commonwealth. Petitioner argued but did not prove that she was paid out of public funds. She did not prove that she was directly supervised by employees of a governmental unit.

DECISION

Pursuant to G.L. c. 32, § 16(4), Petitioner, Ellen T. Brannelly, is appealing the November 13, 2008 decision of Respondent, Teachers' Retirement System, denying her request for creditable service for prior service she performed as a Boston College work-study student. (Ex. 3) The appeal was timely filed. (Ex. 2) By letter of February 2, 2009, Petitioner decided to waive the hearing pursuant to 801 CMR 1.01(1)(c), and submit the case on a documentary record. (Ex. 1) As a result, the parties were issued an order to file documents, any stipulations of fact, and arguments by March 30, 2009. (Ex. A) Various documents are in evidence. (Exs. 1 - 6.) The parties entered into some stipulations of fact. (Ex. B)

The following is a list of the Exhibits:


Ex. A - 2/13/09 Order to the parties to file documentation and stipulations by
3/30/09.

Ex. B - Stipulations and arguments of the parties filed by 3/30/09.
Ex. 1 - Petitioner's 2/2/09 waiver of hearing.
Ex. 2 - Petitioner's 11/14/08 dated letter of appeal, mailed 11/20/08.
Ex. 3 - Respondent's 11/13/08 letter of decision.
Ex. 4. - Petitioner's application to purchase prior service for creditable service.
Ex. 5 - Petitioner's statement of social security earnings for 1974 and 1975.
Ex. 6 - Information from Boston College that Petitioner had no Boston College
retirement benefits for her 1974 and 1975 work-study work.

FINDINGS OF FACT

1. Ellen T. Brannelly is an active member of the Teachers' Retirement System currently working in the Dover Public Schools. (Exs. B & 4.)

2. Ms. Brannelly filed an application with the Teachers' Retirement System to purchase prior service covering the time period from June 5, 1974 to August 23, 1974 and from June 4, 1975 to August 29, 1975, working full-time each time period as a "counselor." (Exs. B & 4.)

3. Ms. Brannelly worked during these two time periods at the West Roxbury
WMCA or YMCA, and for the Brookline Park and Recreation Department or Roslindale Little City Hall. (Exs. B & 2.)

4. Ms. Brannelly performed this work as a Boston College student as part of a work-study program. (Exs. 1, 5 & 6.)

5. Ms. Brannelly was paid by Boston College for this service. Her wages did not qualify her for any retirement benefits through Boston College. (Exs. B, 4, 5 & 6.)

6. Social security deductions were taken from the wages Ms. Brannelly was paid during these time periods. She earned $1,132.60 during calendar year 1974 and $882.60 during calendar year 1975. (Exs. B, 4 & 5.)

7. Ms. Brannelly's application was denied by the Teachers' Retirement System by letter of November 13, 2008. She received the letter at the earliest, on November 15, 2008. She mailed her letter of appeal on November 20, 2008. (Exs. B, 2 & 3.)

8. The Teachers' Retirement System denied Ms. Brannelly's application because she was found not to be eligible to purchase her prior work-study service for creditable service under G.L. c. 32, § 3(5). She was found to have been an employee of Boston College and paid by Boston College, a private and not a public entity. (Ex. 3)

9. By letter of February 2, 2009, Ms. Brannelly waived the hearing to instead submit the appeal on a documentary record. (Exs. A & 1.)


Conclusion

TIMELINESS OF APPEAL

G.L. c. 32, § 16(4) states in pertinent part:

[A]ny person when aggrieved by any action taken or decision of the retirement board … may appeal to the contributory retirement appeal board by filing therewith a claim in writing within fifteen days of notification of such action
or decision of the retirement board.

In Town of Falmouth v. Civil Service Commission & Mark Deutshmann, 447 Mass. 814, 816-817 (2006), no evidence was provided to show when Mr. Deutshmann mailed his letter of appeal to the Civil Service Commission. The letter of appeal was dated December 17, 1998 and the Town's letter of decision had been hand delivered to him on December 7, 1998. The Civil Service Commission received the appeal letter on December 23, 1998. The Court concluded, "a reasonable inference can be drawn that the letter was postmarked on or before December 21, 1998." Id at 816. The appeal to the Commission had to be filed within ten days after receipt of the letter of decision. Saturdays and Sundays are not counted. The postmark rule was used to find that Mr. Deutschmann's appeal was timely filed. Id at 820. In footnote 3, the Court emphasized: "Both the General Court and executive agencies have employed presumptions that mail delivery takes between two and five days." The Court lists in the footnote a number of statutory and regulatory examples where this presumption is recognized. Id at 816.

The Teachers' Retirement System decision letter is dated November 13, 2008. No evidence was presented and there is no indication in the letter, when it was mailed to Ms. Brannelly. I am assuming it was mailed within the next two days, and that she received the decision letter at the earliest on November 15, 2008. She mailed her letter ofappeal on November 20, 2008. This means she filed her appeal within fifteen days of "notification" of the decision of the Teachers' Retirement System as called for by G.L. c. 32, § 16(4). I rely on the reasoning in Falmouth, supra, to support the assumption about when Ms. Brannelly received notification from the Teachers' Retirement System that her application had been denied.

For these reasons, Ms. Brannelly's letter of appeal was timely filed.

SO ORDERED.


MERITS

The only route available for Ms. Brannelly to be entitled to purchase her prior work-study employment for creditable service is to satisfy the criteria in G.L. c. 32, § 3(5). In pertinent part this provision states:

[A]ny member of any system who rendered service in 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 and in a position subject to the provisions of this chapter, … 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 jobs Ms. Brannelly performed during the summers of 1974 and 1975 were temporary. This is because she was performing these jobs as a college work-study student. No evidence shows she was performing teaching work. She provided no job description information. I conclude this prior service was not service that would have been subject to the Teachers' Retirement System. In order to satisfy Section 3(5), Ms. Brannelly has to have sufficient proof that she worked for a governmental unit as an employee when she performed this work-study employment. I conclude she cannot prevail in her claim.

Ms. Brannelly does not dispute that she was paid for her work-study employment by Boston College, but contends she was paid from public funds Boston College had received to cover the summer work she performed. She does not argue that Boston College is a public entity, but she claims it was acting as a conduit for the public funds that paid her wages. I was not able to find that she was in fact paid from public funds because she presented no documentary evidence to support this claim, and the parties did not stipulate she was paid from public funds. The entities where she worked included the YMCA or YWCA, and the Roslindale Little City Hall or the Brookline Parks and Recreation Department. She provided no documentation to show exactly where she worked during 1974 and 1975. G.L. c. 32, § 3(5) puts the burden of securing necessary evidence upon the member seeking to gain creditable service for prior service.

Based on her belief that the source of funds that paid her work-study wages was public funds, Ms. Brannelly contends that she is entitled to creditable service for this work just as much as if she worked directly for a public entity. She did not submit any evidence to show why working at the YMCA or YWCA would have involved work other than for a private non-profit entity. She did not provide evidence that she was directly controlled and supervised in her work by an employee of the Roslindale Little City Hall or the Brookline Parks and Recreation Department. It is not the source of funding that determines whether the person's work can qualify for creditable service, but the relationship the person has with the employer. Gomes v. CRAB, Middlesex Superior
Court Civil Action No. 94-5927-B, (Welch, J., October 11, 1995); Leonard v. Salem Retirement Bd., CR-87-1201 (CRAB, 1989).

G.L. c. 32, § 3(5) calls for Ms. Brannelly to have been an employee of a governmental unit. G.L. c. 32, § 1 defines employee and governmental unit. Employee is a person whose "regular compensation … is paid by any political subdivision of the commonwealth," and a "person who is regularly employed in the service of any such political subdivision." Section 1 defines political subdivision by listing specific government entities, but does not include the YMCA or YWCA. Section 1 defines regular compensation as "the salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority." None of the entities where Ms. Brannelly worked determined her wages. She worked for a private non-profit university. Popeo v. Worcester Retirement Bd., CR-95-963 (CRAB, 2007) (a non-profit corporation is not a political subdivision or a governmental unit of the Commonwealth).

In Pavoni v. State Board of Retirement, CR-05-1365 (DALA, 2006), the member had prior service at a YWCA working on a training program funded by the Bay State Skills Program established under an Executive Order issued by then Governor King to fund certain training programs in communities. Ms. Pavoni was paid by the YWCA. She was supervised in her work by a YWCA employee. She did not have any contributory retirement deductions taken from her pay. Ms. Pavoni was found not to be eligible to purchase this prior work for creditable service because she was an employee of the YWCA and not an employee of the Bay State Skills Program or of any governmental unit. Even though the YWCA had received a grant of public money to carry out its mission, it was not functioning as a governmental unit of the Commonwealth.
Ms. Brannelly cannot overcome the fact that she was an employee of Boston College since Boston College and not any of the entities she worked at paid her the work-study wages. She did not receive regular compensation determined by a governmental
unit of the Commonwealth. Boston College lent her work-study services to these
various entities in fulfillment of its mission as a private non-profit university. See, Benham v. Teachers' Retirement System, CR-01-679 (DALA, May 10, 2002) (Northeastern University work-study student performed work as a teacher aide in the Weston Public Schools. For the time she was paid only by Northeastern University, she could not purchase this prior service for creditable service under G.L. c. 32, § 3(5) because Northeastern University is not a governmental unit).
I conclude that Ms. Brannelly has failed to meet her burden of proof to show she is eligible to purchase her prior work-study employment for creditable service. Wakefield Retirement Board v. CRAB, 352 Mass. 499, 502 (1967). The decision of the Teachers' Retirement System is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVELAW APPEALS


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

DATED: July 24, 2009