COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Gail Ruocco,

Petitioner

v. CR-05-298

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Gail Ruocco, pro se

5 Sherwood Drive
Bradford, MA 01835

Appearance for Respondent:

Aaron Morrison, Esq.

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

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Gail Ruocco, is appealing the April 13, 2005 decision of the Respondent, Teachers' Retirement System, denying her request to purchase creditable service for the period of time that she served as a teachers' aide in the Danvers Public School System as a Northeastern University Cooperative Education Program student (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on May 6, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA Various documents were entered into evidence at the hearing (Exhibits 1 -10). The Respondent's Pre-hearing Memorandum was marked as "A" for identification. The Petitioner testified in her own behalf. One cassette tape recording was made of the hearing.

FINDINGS OF FACT

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

1. The Petitioner, Gail Ruocco, d.o.b. 7/20/47, graduated from Northeastern University in Boston, MA in June of 1970 with a degree in education (testimony of the Petitioner).

2. While a student at Northeastern University, the Petitioner participated in the Cooperative Education Program, a five year program combining work with classroom instruction. During four separate three month periods in 1967 and 1968, the Petitioner worked as a teachers' aide in Danvers, MA Public School System as part of the Northeastern University Cooperative Education Program (Exhibit 3, testimony of the Petitioner).

3. The Petitioner received compensation for this work as a teachers' aide in the Danvers Public School System. Her paychecks were issued by Northeastern University (testimony of the Petitioner).

4. While she was working as a teachers' aide, Northeastern University Professors visited the schools in Danvers where she worked in order to evaluate her performance (testimony of the Petitioner).

5. The Petitioner could not have graduated from Northeastern University without successfully having completed these four periods of work in the Cooperative Education Program (testimony of the Petitioner).

6. After graduation from Northeastern University in June of 1970, the Petitioner accepted employment as an elementary school teacher in the Lowell, MA Public School System commencing in September of 1970. She became a member of the Teachers' Retirement System at that time (testimony of the Petitioner).

7. The Petitioner taught in the Lowell, MA Public School System for the next thirty-four years (testimony of the Petitioner).

8. On September 7, 2004, the Petitioner filed with the Teachers' Retirement System a request to purchase her service as a teachers' aide in Danvers in 1967 and 1968 (Exhibit 3).

9. The Petitioner applied for superannuation retirement benefits and was retired effective September 30, 2004 (stipulation of the parties).

10. On December 9, 2004, the Teachers' Retirement System wrote to the Town of Danvers inquiring as to whether it would accept liability for the Petitioner's service as a teachers' aide in the Danvers Public School System during 1967-1968 (Exhibit 6).

11. On March 10, 2005, the Town of Danvers sent the Teachers' Retirement Board a response indicating that it would not accept liability for Ms. Ruocco's service as a teachers' aide as she "did not contribute deductions and was not a member of the Danvers Contributory Retirement System" (Exhibit 7).

12. On April 13, 2005, the Teachers' Retirement System sent the Petitioner formal notification that her request to purchase creditable service for her service as a teachers' aide in Danvers, MA during 1967 and 1968 had been denied (Exhibit 1).

13. On April 20, 2005, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

In this case, the Petitioner, as a member of the Teachers' Retirement System, sought to purchase creditable service for her teachers' aide work with the Danvers Public School System (work that would have come under the Danvers Retirement System and not the Teachers' Retirement System) in accordance with the provisions of G.L. c. 32 §3(5).

G.L. c. 32 §3(5) provides in pertinent part that:

Any member of any system who had rendered service as an employee of 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, or most recent portion thereof, as he may elect,…had such service been rendered in the governmental unit by which he is presented employed and in a position subject to the provisions of this chapter, or to corresponding provisions of earlier laws (emphasis supplied).

In order to be eligible to purchase such prior service pursuant to G.L. c. 32 §3(5), the intended service must have been rendered as an employee, as defined by the statute. G.L. c. 32 §1 defines employee as "persons whose regular compensation …is paid by any political subdivision of the commonwealth." Regular compensation as defined by G.L. c. 32 §1 includes "salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority." In this case, the Petitioner was paid directly by Northeastern University, a private university, and not by a political subdivision of the commonwealth. Thus, at the time that she rendered service as a teachers' aide in the Danvers schools in 1967 and 1968, Ms. Ruocco was not employed by a governmental unit as required by Section 3(5) for eligibility for purchase of such service.

This determination is fully supported by case law. In McKeon v. Teachers' Retirement System, CR-05-572 (DALA dec. 8/7/07; no CRAB dec.), a Northeastern University Cooperative Student, like Ms. Ruocco, who had worked periodically as a teachers' aide in the Brookline Public School System, was deemed ineligible to purchase this service since Northeastern University and not the Town of Brookline paid the wages. Similarly in Benham v. Teachers' Retirement System, CR-01-679 (DALA dec. 5/10/02, no CRAB dec.) a Northeastern University Cooperative Student performing duties in the Weston Public School System was deemed ineligible to purchase this prior service as Northeastern University, and not the Town of Weston, paid her wages. Based on the foregoing, the decision of the Respondent, Teachers' Retirement System, denying the Petitioner's request to purchase her prior service with the Danvers Public School System while she was a Northeastern University Cooperative Student is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 6/27/08


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