COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Margaret Kelliher,


Petitioner

v. CR-08-618
Dated: January 8, 2010

Teachers' Retirement System,


Respondent

Appearance for Petitioner:

Margaret Kelliher

31 Springfield Street
Wilbraham, MA 01095

Appearance for Respondent:

James O'Leary, Esq.

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


Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION


The Petitioner is entitled to have the $2,500 of the $4,000 stipend she received for serving as Exemplary Director during the 2007-2008 school year included as regular compensation in the calculation of her superannuation retirement benefit as that stipend is included in the relevant Collective Bargaining Agreement.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Margaret Kelliher, is appealing the August 28, 2008 decision of the Respondent, Teachers' Retirement System, declining to include the stipend she received for serving as an Exemplary Director for the Springfield Public School System as regular compensation in the calculation of her superannuation retirement benefit. (Exhibit 1.) The appeal was timely filed in accordance with the provisions of G.L. c. 32, § 16(4).
Pursuant to the provisions of 801 CMR 1.01 (10)(c), the parties agreed to submit the case on written submissions and to waive a hearing. On September 22, 2008, the Petitioner submitted proposed exhibits as well as a written argument. The parties then requested that the record be left open until June 30, 2009 in order that more information may be secured. This request was allowed. An additional request for continuance until September 30, 2009 was made by the parties and subsequently granted. The parties were then given until December 8, 2009 to submit any additional documentation and written arguments. On December 8, 2009, the Respondent submitted proposed exhibits and a written argument. The Petitioner did not provide an additional submission. The record was closed on December 8, 2009.

The following exhibits are now marked into evidence:

1. Decision Letter dated 8/28/08
2. Appeal Letter dated 9/4/08
3. Letter from Respondent to Petitioner with refunded contributions 9/24/08
4. Petitioner's Application for Superannuation Retirement Benefits received by the Respondent on 7/3/08
5. Notice of Estimated Retirement Benefit dated 8/22/08
6. Memorandum of Agreement between the Petitioner and Superintendent dated 7/2/07
7. Memorandum of Agreement between the Petitioner and Superintendent dated 1/2/08
8. Article 16 of the Collective Bargaining Agreement
9. Springfield Education Association, Unit B, Salary Schedule Settlement effective 7/1/06

FINDINGS OF FACT

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

1. The Petitioner, Margaret Kelliher, d.o.b. 9/4/48, is a retired member of the Massachusetts Teachers' Retirement System with an effective retirement date of September 25, 2008. (Exhibit 4.)

2. Prior to her retirement, the Petitioner worked as Director of Professional Development. This position is an administrator's position with the Springfield Public School System. (Exhibit 4.)

3. As an administrator, the Petitioner's employment with the Springfield Public Schools was governed by a Collective Bargaining Agreement between the Springfield Public Schools and the Springfield Education Administration. (Exhibit 8.)

4. During the 2007-2008 school year, in addition to her regular salary for serving as Director of Professional Development, the Petitioner was also paid $4,000 for performing the extra function of "Exemplary Director." (Exhibit 8.)

5. Retirement deductions were taken from the compensation that the Petitioner received for serving in the position of Exemplary Director. (Exhibit 3.)

6. Article 16, Section 3 of the Collective Bargaining Agreement between the parties governing the 2007 - 2008 school year states as follows: "Special project(s) with a $2,500 stipend each may be awarded to Unit B members at the sole discretion of the Superintendent. The unit member has the right to turn down a special project." (Exhibit 8.)

7. The Petitioner and the Superintendent of Schools signed a document dated July 2, 2007 entitled Memorandum of Agreement. This Memorandum of Agreement lists in detail the duties of the position of Exemplary Director and indicates that the Petitioner will receive additional compensation for serving in this capacity. (Exhibit 6.)

8. The Memorandum of Understanding also states that the duties of the position of Exemplary Director constitute a special project as defined in Article 16 Section 3 of the Collective Bargaining Agreement. (Exhibit 6.)

9. Article 16 Section 3 of the Collective Bargaining Agreement provides that: "Special project(s) with a $2,500 yearly stipend each may be awarded to Unit B members at the sole discretion of the Superintendent. The unit member has the right to turn down a special project." (Exhibit 8.)

10. By letter dated August 28, 2008, the Respondent notified the Petitioner that her stipend for serving as Exemplary Director would not be included as regular compensation in the calculation of her superannuation retirement benefit. (Exhibit 1.)

11. By letter dated September 4, 2008, the Petitioner filed an appeal of this denial with the Contributory Retirement Appeal Board. (Exhibit 2.)

12. On September 28, 2008, the Respondent sent the Petitioner a refund of the retirement contributions that had been made as a result of her having served as Exemplary Director during the 2007-2008 school year. (Exhibit 3.)

CONCLUSION

There are no material issues of fact in dispute in this matter. The issue in this case is whether the Petitioner is entitled to have the stipend that she received for serving as Exemplary Director during the 2007-2008 school year included as regular compensation in the calculation of her retirement benefit.

After reviewing the evidence presented in this case, I conclude that the Petitioner is entitled to have $2,500 of the $4,000 stipend considered as regular compensation. The Collective Bargaining Agreement covering the 2007-2008 school year specifically provides for a stipend of $2,500 per year for special project(s) and the Memorandum of Understanding between the parties specifically defines the position of Exemplary Director as a special project within the meaning of the Collective Bargaining Agreement.

Regular compensation is defined in G.L. c. 32 §1 as:

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, or any other payment made as a result of giving notice of retirement ….

In the case of an administrator, such as the Petitioner, employed in a public day school who is a member of the teachers' retirement system, salary payable under the terms of an annual contract for additional services in such a school and also compensation for services rendered by said teacher in connection with a school lunch program or for services in connection with a program of instruction of physical education and athletic contests shall be regarded as regular compensation rather than as bonus or overtime and shall be included in the salary on which the pension is calculated ….

Chapter 32 does not define the term "annual contract." In 1994, the Teachers'' Retirement System promulgated 807 CMR 6.01 which defines annual contract as the following:

In the case of a teacher, the annual contract is the collective bargaining agreement for the unit that governs the rights of the members whether it is a one year or multi-year agreement. In the case of an Administrator the annual contract is the individual employment agreement which governs the rights of the member whether it is a one year or multi-year agreement …. (emphasis supplied.)

The term regular compensation as defined by M.G.L. c. 32, § 1 and further defined by 840 CMR 15.03 includes … (b) Salary payable under the terms of an annual contract for additional services so long as (1) The additional services are set forth in the annual contract; (2) The additional services are educational in nature; (3) the remuneration for these services is provided in the annual contract; (4) The additional services are performed during the school year. (emphasis supplied).

In this case, the Collective Bargaining Agreement in effect during the 2007-2008 school year covering the Petitioner specifically references a stipend of $2,500 per school year for special project(s). The position of Exemplary Director is defined in the Memorandum of Understanding between the parties as a special project.
Although the Petitioner received $4,000 for the 2007-2008 school year for serving as the Exemplary Director, she is only entitled to have the remuneration specifically referenced in the Collective Bargaining Agreement, i.e., $2,500, included as regular compensation in the calculation of her superannuation retirement benefit.

In the case of Henry Kozloski v. Contributory Retirement Appeal Board, 61 Mass. App. Ct. 783, app. Rev. denied 442 Mass. 1112 (2004), the Appeals Court held that it is necessary to review the annual contract covering the individual's employment to determine whether an additional payment made to the employee is specifically included. In Kozloski, supra, the Petitioner's annual stipend for serving as audio-visual coordinator was not included in the collective bargaining agreement, the annual contract covering Mr. Kozloski's employment as a high school science teacher. The Appeals Court held: "[W]hether the omission was inadvertent or not, the position of audio-visual coordinator was simply not included in the relevant collective bargaining agreement under which Kozloski worked for the three-year period that was the basis for his pension calculation." The Court further held that, "to be eligible for inclusion in the pension calculation, the additional service stipend must have been provided for in the collective bargaining agreement." (emphasis supplied.)

For the foregoing reasons, I order that the decision of the Teachers' Retirement System be reversed and that $2,500 of the $4,000 stipend that the Petitioner received for declining to include the stipend that the Petitioner received for serving as Exemplary Director during the 2007-2008 school year in the calculation of her retirement benefit be affirmed.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/
Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: January 8, 2010