COMMONWEALTH OF MASSASHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Thomas Younis,

Petitioner
v. Docket No. CR-07-743

Boston Retirement Board,

Respondent

Appearance for Petitioner:

Elise A. Brassil, Esq.

300 Brickstone Square, Suite 201
Andover, MA 01810

Appearance for Respondent:

Edward McKenna, Esq.

66 N Street
Boston, MA 02127

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

Petitioner can purchase prior part-time non-membership service for the City of Boston that was subject to annual contracts although not done as an independent contractor, and performed during the same time he held membership in the same retirement system as a full-time teacher receiving full years of creditable service. Due to G.L. c. 32, § 4(1)(a), Petitioner cannot receive more than one year of creditable service per calendar year, but he can receive an additional full year of creditable service during one school year when he was on an unpaid leave of absence while performing this other work. Pursuant to 840 CMR 15.02(2), Petitioner must purchase the most recent prior service first.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Thomas Younis, is appealing the September 27, 2007 decision of the Respondent, Boston Retirement Board, denying his request to purchase prior City of Boston service for creditable service performed when he held membership in the retirement system due to his teaching job. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held December 3, 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 - 9.) Two tapes were used. The Petitioner testified. Both parties filed pre-hearing memoranda. (Ex. A) The record was held open to December 22, 2008 for the Petitioner to secure copies of the contracts that covered the work in question along with any paystubs, W-2 Forms, or 1099 Forms he received. No further documents were received from Petitioner. The record was also held open for Respondent to provide any rule or policy during the time period at issue on creditable service for prior non-membership part-time, intermittent, seasonal, or temporary service performed by a person who held Boston Retirement System membership at the time. (Ex. B) Petitioner initially responded in writing simply stating that contract employees performed non-membership service. The record was again held open for Respondent to explain whether it had the creditable service rule or regulation being sought. (Ex. B) Respondent answered in writing that there was no such rule or regulation during the time period at issue. Respondent's two responses are in evidence as Exhibit 9. The record closed March 16, 2009.

FINDINGS OF FACT

1. Thomas Younis began teaching in the Boston Public Schools in 1975, and had to work until sometime in 1976 before he gained entry into the Boston Retirement System. Thereafter, he has held full-time Boston teacher positions, all subject to collective bargaining agreements with his salaries always subject to retirement system deductions. He has received one year of full-time creditable service for each school year he taught. For about the last eight years, he has held the assignment of Community Connection Facilitator working with special needs students to transition them from high school to work or into the care of other agencies. (Testimony)

2. In his current assignment, Mr. Younis is required to work an additional eighteen days which lengthens his school year beyond the required number of school days. His pay for this extra work has been subject to retirement system deductions. (Testimony)

3. Mr. Younis was on an unpaid leave of absence from his teaching job for the 1985-1986 school year to care for his ailing mother. That is the only time he has had a leave of absence or a break in his teaching work, and when he did not receive a full year of creditable service. (Ex. 2. Testimony.)

4. From 1974 to 1996, Mr. Younis worked at least twenty hours a week for Camp Joy, a program run by the City of Boston. Until he became Co-Director of Camp Joy, he only worked during the summer months and without an employment contract. (Exs. 2, 3, 4, 5, 6,7 & 8. Testimony.)

5. Camp Joy is a recreational program for special needs children and young adults. Camp Joy started around the mid-1940's within the Boston Parks and Recreation Department. At some point during the time Mr. Younis worked for Camp Joy, the program was transferred to the Community Centers for Families and Youth Department within the City of Boston. (Ex. 8. Testimony.)

6. From July 1, 1984 as Co-Director, Mr. Younis had "responsibility for overseeing a staff of 100+." Other duties included working on the Camp Joy budgets, "developing and evaluating full year recreation programs, evaluating and supervising staff, coordinating special events, and serving as a liaison with other City Departments." He was involved in interviewing and hiring staff for Camp Joy. He worked during the year, evenings and weekends as well as the summer months. Camp Joy operated "at various City of Boston sites," and its offices were in the Community Centers for Families and Youth. His hours were flexible as Co-Director. (Exs. 4, 6 & 8. Testimony.)

7. The City of Boston provided all equipment and supplies Mr. Younis used while working for Camp Joy. The Camp Joy program determined his specific duties. He was always managed in his work by City of Boston employees. He did not work as an outside consultant, vendor or independent contractor at any time he worked for Camp Joy. (Testimony)

8. From July 1, 1984, Mr. Younis's work at Camp Joy was subject to an annual employment contract with the City of Boston. These annual contracts ran from July 1st through June 30th. He earned annual wages under each contract of $17,600 at $338.46 per week until the July 1, 1995 through June 30, 1996 contract when he earned $14,000 at $269.23 per week. (Exs. 4 & 6.)

9. The City of Boston used these annual contracts to hire employees of Camp Joy at Mr. Younis's level, so that they could not gain membership in the Boston Retirement System. The contracts were the type used when the City contracted with vendors or independent contractors. The contracts contained a term that the work was not subject to either retirement system deductions or any job benefits. Starting in 1990, the City of Boston enrolled him in its deferred compensation plan in connection with his Camp Joy service. (Exs. 3, 4, 5, 6 & 9. Testimony.)

10. Mr. Younis made an inquiry to the Boston Retirement Board in and around 1995 to learn whether or not he could gain creditable service for his Camp Joy work. On February 20, 1996, the Executive Officer of the Boston Retirement Board, Michael Travaglini, responded in writing to Mr. Younis as follows:
Information obtained from the City Auditor's office indicates that you were
paid through a standard City contract for your Camp Joy service. Included
in the terms of that contract is language which makes it clear that you did not
have "the status or pension rights" of an employee of the City of Boston. Moreover, beginning in 1990, the City enrolled you in its deferred compensation plan, which is further evidence that your Camp Joy service was not covered under the Boston Retirement System. Consequently, you are not entitled to receive retirement credit for compensation you received as Co-Director of Camp Joy. If this office can provide any additional information, please do not hesitate to contact us ….(Ex. 5) The response did not acknowledge that he held Boston Retirement System membership for most of the time he worked at Camp Joy. No right to appeal this determination was included in the letter. Nothing in the letter refers to an application for creditable service filed by Mr. Younis the letter is addressing, and the letter does not instruct him to file such an application to gain a final decision on his request from the Board. (Ex. 5. Testimony.)

11. At some point after receiving the February 20, 1996 letter, Mr. Younis spoke to his union representative about the information in the letter. He understood that his union felt he could not prevail if he appealed. Since he was not intending to retire at and around that time, Mr. Younis made no further inquiries. (Testimony)

12. By letter of January 19, 2005, Mr. Younis, through his counsel, wrote to the Boston Retirement Board seeking "a statement of … [his] earned time toward his retirement as a result of his employ with the City of Boston's Camp Joy for the ten year period between 1985 and present … [when he] served as the co-director of the Camp Joy program under Boston Community Centers." No response was received. (Ex. 7. Testimony.)

13. By letter of May 21, 2007, Mr. Younis, through his counsel, wrote to the Boston Retirement Board for this statement of creditable service for his work at Camp Joy. In the letter Mr. Younis stated he received W-2 Forms, and that the City of Boston controlled his Camp Joy employment, including providing "all his supplies, set his hours, and mandated how he performed his duties." Mr. Younis denied he was an independent contractor while working for Camp Joy. The letter referenced the January 19, 2005 request letter to the Board, and noted how no response to it had been received. The letter noted that "Mr. Younis is contemplating retirement and would like this response within a reasonable time frame … no later than Friday, June 8, 2007?" (Ex. 3)

14. By letter of September 27, 2007, the Boston Retirement Board responded to Mr. Younis's May 21, 2007 request, noting that the letter was also responding to a "brief meeting held recently in our offices regarding the ability … to purchase the employment service that he has rendered in the past to Camp Joy, which occurred in addition to concurrent full time employment service that he provided to the Boston School Department." The Board explained that Mr. Younis's Camp Joy service cannot be subject to any retirement credit since it was worked "as a contract employee and as such outside of the parameters for eligibility in this retirement system." The Board noted how he had been "credited with the full amount of creditable service available to him for the years that he has worked since his membership in this system began in 1976," due to his full time teaching for the Boston Public Schools during the same time period at issue concerning his work for Camp Joy. The Board noted that "even if Mr. Younis were able to contribute into the retirement system for his service with Camp Joy, he would not see an appreciable gain to the amount of creditable service that he has already established." The letter contained a reference to G.L. c. 32, § 16(4) and a right to appeal this Board decision, including where to file it and noting how it had to be filed within fifteen days of receiving it. (Ex. 2)

15. In response, Mr. Younis filed a timely appeal in writing on October 10, 2007. (Ex. 1)

Conclusion

TIMELINESS OF APPEAL

Mr. Younis has timely appealed the denial decision of the Boston Retirement Board to provide him with creditable service for his work at Camp Joy. The first time he received a decision letter with information that this was a final Board decision was by the Board's letter of September 27, 2007. Until that time, the Mr. Younis's efforts to get a clear and final response from the Boston Retirement Board on his request for creditable service for the Camp Joy work were never successful. Although the Board produced a letter in 1996 informing him that because he had performed that work as a contract employee the work was not eligible for membership, the letter does not provide a final determination on Mr. Younis's inquiry about whether he could gain not retroactive membership but creditable service for the Camp Joy work. The letter does not acknowledge the key fact that Mr. Younis already was a member of the Boston Retirement System when he performed the Camp Joy work. In addition, the letter concludes by offering to continue to discuss the matter with him. No evidence shows this 1996 letter was addressing the merits of an application for creditable service that Mr. Younis had filed. The Board failed to provide sufficient proof that the purpose of its letter was to serve as a final decision on Mr. Younis's request for creditable service to have triggered a need for Mr. Younis to have filed an appeal with CRAB. In regard to his 2005 request letter to the Board, the Board never provided Mr. Younis with any response to it.
I do not conclude that Mr. Younis had an obligation to appeal either the Board's 1996 letter or the inaction of the Board on his 2005 request. Based on this course of events, and the fact that he timely filed an appeal of the September 27, 2007 decision letter that contained clear information that demonstrated it was a final Board decision on his request, I conclude the appeal is proper to address and was timely filed on October 10, 2007.

SO ORDERED.

MERITS

Being eligible to do a buy-back for creditable service and being eligible for
membership are not the same thing. Manning v. CRAB, 29 Mass. App. Ct. 253, 255-256 (1990) ("An entitlement to 'creditable service,' … does not create retroactive membership."). An employee who is paid by a city for services that carry out the work of the city, may not be eligible for membership because his job is temporary, provisional, seasonal, intermittent, or part-time. Because of the temporary, etc., nature of the work, according to G.L. c. 32, § 3(2)(d), a local board has authority to determine whether such an employee can gain membership in the retirement system once the board determines that he has become regularly employed in that job. In Manning v. CRAB, 29 Mass. App. Ct. 253 (1990), a member's prior state paid service of summer work as a lifeguard was found to have been properly excluded from being membership service pursuant to Section 3(2)(d), and no retroactive membership back to that time period could occur. But, the member was able to purchase that prior non-membership service for creditable service. Once membership is established, as it was for Mr. Younis by 1976 and continuing during the time at issue when he worked for Camp Joy, he has the right to purchase the Camp Joy service for creditable service. This is his right so long as this service was City of Boston employment for which he received regular compensation, and so long as it was not work performed as an independent contractor. See, Crowley v. Contributory Retirement Appeal Bd., 2008 WL 4754841, 4 (Mass.App.Ct. 2008)(Unpublished decision pursuant to Rule 1:28).

The record shows Mr. Younis worked during the time period at issue, two separate jobs for the City of Boston for two distinct City Departments. His teaching work was performed for the Boston Public Schools subject to terms and conditions in a union contract. His part-time work as Co-Director for Camp Joy from 1985-1996 for Camp Joy, was always performed for a City Department. He was hired each year by the City through an annual non-union contract. The records kept by the City of Boston on his Camp Joy employment show Mr. Younis received weekly wages and an annual set salary directly from the City for doing this work. By the terms of these annual contracts no Boston Retirement System deductions were taken from these wages. The contracts never provided him with any job benefits.

The Boston Retirement Board contends that Mr. Younis was not hired as a regular City employee when he worked for Camp Joy, but as a vendor or independent contractor due to the kind of contract the City used to hire him. The basic contract he had was not unique to Mr. Younis's employment with Camp Joy, but was a contract form used when the City wanted to ensure the work done would not be membership service. See, Moynihan v. Methuen Retirement Bd., CR-99-606 (CRAB 2001) (position paid by federal funds through annual appointments with no employment contract with pay earned per diem without basic job benefits, was a non-membership work even though it was performed for full-time hours).

Despite performing part-time work through annual contracts, I conclude that Mr. Younis was regularly employed in this job. He worked year round at least twenty hours a week as Co-Director. Each week he earned a consistent wage paid by the City under the terms of his annual contract. Although none of the annual contracts or paystubs and no W-2 Forms or 1099 Forms were produced, no evidence shows Mr. Younis had to submit invoices to receive his wages. I credit his testimony that his employment with Camp Joy was neither sporadic or intermittent, and was regular and continual throughout each year. Although not defined in G.L. Chapter 32, what it means to be regularly employed was discussed in Concord v. Colleran, 34 Mass. App. Ct. 486, 489 (1993). Mr. Colleran worked part-time for three hours a day. He was found to be regularly employed. The Appeals Court explained that being regularly employed according to its usual meaning connotes "continuous employment as distinguished from sporadic, intermittent, or temporary employment." In contrast, in Burnside v. Bristol Cty. Bd. of Retirement, 352 Mass. 481, 484 (1967), Deputy Sheriff Burnside was not found to be regularly employed. He was paid on a per diem basis, and during the time period he performed the particular work, his pay varied based on between fifty-two and one hundred fifty days per year. See also, Nardi v. Hampton Cty. Retirement Bd., CR-91-1367 (DALA 1993) (auxilary police work performed without retirement system membership for about eighty hours per year and worked prior to a permanent police officer appointment was not being regularly employed to permit retroactive membership back to the start of the auxiliary police work).

I further conclude that Mr. Younis was not a vendor or independent contractor
while he performed this work. Everything about his work for Camp Joy was controlled and directed by the City Department that ran this program. Camp Joy had been operating as a recreation program for special needs children and young adults from about the mid-1940's. It was not independently operated by some outside organization or company who was hiring Mr. Younis. Mr. Younis was not hired as a consultant based on an independent occupation or business he operated. He used City supplies and equipment on tasks the City assigned him, including work on City budget matters for Camp Joy. He engaged in the hiring process for Camp Joy. This is what he credibly testified were his duties and working conditions. His account was consistent with what his immediate supervisor and co-worker wrote in a statement about Mr. Younis's employment with Camp Joy. (Ex. 8) I conclude that he was regularly employed as an employee of the City of Boston receiving regular compensation in satisfaction of the G.L. c. 32, § 1 definitions for employee, political subdivision, and regular compensation.

The record shows that the Boston Retirement Board had no rule or regulation during the time period at issue on how much creditable service could be obtained by existing members performing part-time work not subject to membership. (Ex. 9) Therefore, G.L. c. 32, § 4(1)(a) is controlling on the amount of creditable service Mr. Younis can receive for his Camp Joy work. It calls for the member-in-service of a local retirement system to receive all the creditable service he is entitled to upon becoming a member of the retirement system, although no member can earn more than one year of creditable service per calendar year. In Gallagher v. CRAB, 4 Mass. App. Ct. 1, 11 (1964), the creditable service Mr. Gallagher received for the purchase of his prior non-membership part-time service could not be prorated because the local retirement board had no creditable service rule promulgated pursuant to G.L. c. 32, § 4(2)(b). Likewise, Mr. Younis's creditable service for the Camp Joy work cannot be prorated.
Against this background, Mr. Younis's request for creditable service for the
years of his Camp Joy service between 1984-1996, can be allowed, but with significant restrictions.

Because of G.L. c. 32, § 4(1)(a), Mr. Younis can only receive one year of creditable service per calendar year. Due to his teaching service, he already received full years of creditable service for each of the years in question, 1984-1996, other than for the one school year he was on an approved leave of absence without pay, 1985-1986. As to that time period, by purchasing his Camp Joy work, he can make up for that lack of creditable service, and secure a full year of creditable service. If he chooses to purchase the Camp Joy service, he can add the salaries he received for his Camp Joy work from the July 1, 1984 - June 30, 1996 annual contracts to his teaching salaries during the same years. When he seeks to retire, if for any reason such prior service years would include his three highest years of regular compensation, making this creditable service purchase could make sense as those salaries would be used in calculating his retirement allowance.

Unfortunately for Mr. Younis, if he seeks to do this purchase of his prior Camp
Joy service, he must start by purchasing his latest Camp Joy service and make his way back in time. He cannot simply decide to purchase the time he was out on the approved leave of absence from his teaching position. This is because of the regulation of the Public Employee Retirement Administration Commission (PERAC) found at 840 CMR 15.02(2). In pertinent part it states:
[T]o purchase creditable service for periods of non-membership employment …
[t]he member may purchase less than all non-membership service available for
purchase; provided, however, that in such event the member must purchase the
most recent time first.

That would mean for Mr. Younis, starting the purchase with the time period ending June 30, 1996 and purchasing his service back to the July 1, 1985-June 30, 1986 annual contract to gain his missing full year of creditable service.


Based on the foregoing determinations, the decision of the Boston Retirement Board is rescinded. Mr. Younis is eligible to purchase his prior service with Camp Joy, done while he was a member-in-service of the Boston Retirement System, so long as he starts purchasing his most recent Camp Joy service, and so long as he does not receive additional creditable service time during the years when he received full years of creditable service due to his full-time teacher work.

SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS


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

DATED: June 16, 2009