COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Marian Desrosiers,


Petitioner

v. CR-06-391
Dated: January 8, 2010

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Marian Desrosiers

52 Deer Jump Hill
West Barnstable, MA 02668

Appearance for Respondent:

Aaron Morrison, Esq.

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


Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION


The Petitioner is not entitled to full-time creditable service for her part-time service rendered in Kennewick, Washington during the 1982-1983 school year as a high school social studies teacher. The holding in the case of Madden v. CRAB, 431 Mass. 607 (2000) is not applicable as Ms. Desrosiers's service in Kennewick, Washington was non-membership service.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Marian Desrosiers, is appealing the June 7, 2006 decision of the Respondent, Teachers' Retirement System, awarding her part-time creditable service for her employment as a high school social studies teacher in Kennewick, Washington for the 1982-1983 school year. (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 October 7, 2009, the Petitioner submitted proposed exhibits as well as a written argument. The Respondent requested that a continuance be allowed until November 6, 2009 for its submission. This request was allowed. On November 6, 2009, the Respondent submitted proposed exhibits and a written argument and the record was closed as of that date.

The following exhibits are now marked into evidence:

1. Decision Letter dated 6/7/06
2. Appeal Letter dated 6/20/06
3. Out-of-State Purchase Form
4. Invoice for Out-of-State Service Purchase
5. Letter from Kennewick School District dated 8/19/98

FINDINGS OF FACT

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

1. The Petitioner, Marian Desrosiers, d.o.b. 3/15/47, is a full-time active member of the Teachers' Retirement System and is currently employed by the Barnstable, MA Public School System. (Exhibit 3.)

2. On or about October 17, 1995, the Petitioner applied to purchase out-of-state service rendered in Kennewick, Washington from September 1978 thorough June 1983 as a high school social studies teacher. (Exhibit 3.)

3. The Kennewick School District completed Section B of the Out-of-State Purchase Form certifying that Ms. Desrosiers had worked 60% during the 1980-1981 and 1981-1982 school years and 79.2% in the 1982-1983 school year. (Exhibit 3.)

4. In accordance with the information from the Kennewick School District, the Petitioner was allowed to purchase out-of-state service from September 1978 to June 1980 at 100%. She was also allowed to purchase 60% service from September 1980 to June 1982 and 79% service from September 1982 to June 1983. (Exhibit 4.)

5. On August 19, 1998, the Petitioner received a letter from the Kennewick School District stating that "during the 82-83 school year, you worked 181 days, so your maternity leave was not subtracted from the experience shown. However, during second semester, you reduced your hours and worked 4.5 hours/day (.6 FTE). The first semester was shorter than the second, so you were credited with 89 days @1.0 FTE and 92 days @.6 FTE." (Exhibit 5.)

6. On or about June 7, 2006, the Petitioner attended a group retirement counseling seminar sponsored by the Teachers' Retirement System. At that time, she requested that she be allowed to purchase the equivalent of 100% or full-time service for the 1982-1983 school year. (Exhibit 1.)

7. By letter dated June 7, 2006, the Teachers' Retirement System denied her request for full-time creditable service for the part-time service she rendered during the 1982-1983 school year. (Exhibit 1.)

8. The Petitioner filed a timely appeal of this decision. (Exhibit 2.)


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 full-time creditable service for the part-time service that she rendered as a high school social studies teacher in Kennewick, Washington during the 1982-1983 school year.

After reviewing the evidence presented in this case, I conclude that the Petitioner is not entitled to full-time creditable service for her part-time out-of-state service in Kennewick, Washington.

Arguing in her own behalf, the Petitioner maintains that she taught everyday at Kennewick High School during the school year in question with the exception of a two month maternity leave beginning in November of 1982. In support of her position, the Petitioner cites the case of Nancy Madden v. CRAB & another, 431 Mass. 607 (2000). In Madden, supra, the Supreme Judicial Court held that a Retirement Board could not pro-rate a member's service if, at the time the service was actually rendered, the Board had not promulgated a regulation providing for such pro-ration. The Court in Madden, supra at 702, noted that "teacher retirement system members are entitled to rely on a properly construed regulation in developing contractual expectations as to their retirement benefits." (Emphasis supplied.)

The Teachers' Retirement System subsequently promulgated 807 CMR 3.04 which became effective November 9, 1990. That regulation provides that for services rendered by a teacher after November 9, 1990, the teacher must be credited with pro-rated years of service for part-time service

Notwithstanding the Petitioner's argument, the holding in Madden applies to only membership service in the Massachusetts Teachers' Retirement System rendered prior to the promulgation of the regulation. In the current case, the Petitioner was not a member of the Teachers' Retirement System during the school year in question, i.e., 1982-1983. Rather, she was a member of a retirement system in the state of Washington. Accordingly, she is not entitled to any of the rights or protections afforded to members of the Massachusetts Teachers' Retirement System under either the retirement statute or the promulgated regulations.

In the case of Martin v. Teachers' Retirement System, CR-01-43, (DALA, 2001), aff'd (CRAB 2002), the Petitioner, Barbara Martin, was not permitted full-time creditable service for her part-time service prior to 1990 as she was not a member of the Teachers' Retirement System when she performed her part-time service. DALA held that Ms. Martin, as a non-member of the Teachers' Retirement System during the period of time in question, did not have a contractual expectation that she would receive full-time creditable service from the Teachers' Retirement System for her part-time employment rendered prior to November 9, 1990.

The Petitioner further argues that her service should not be pro-rated during the 1982-1983 school year as a penalty for her having taken a two month maternity leave that school year. Despite the Petitioner's assertion, the Kennewick School District in its letter of August 19, 1998 unequivocally states that Ms. Desrosiers's time was not reduced as a result of her maternity leave, which was taken during the first semester. Rather, her time was pro-rated due to the fact that she worked only part-time during the second semester.
In light of the foregoing, I conclude that the Teachers' Retirement System has awarded the Petitioner the proper amount of creditable service for her service as a high school teacher in Kennewick, Washington during the 1982-1983 school year. The decision of the Teachers' Retirement System is hereby affirmed.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/
______________________________________________ Joan Freiman Fink, Esq.
Dated: 1/8/10 Administrative Magistrate