COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

James Geller,

Petitioner

v. Docket No. CR-07-616

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Matthew D. Jones, Esq.

Mass. Teachers' Ass'n - Div. of Legal Services
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

James O'Leary, Esq.

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

Administrative Magistrate:

Kenneth J. Forton, Esq.


SUMMARY OF DECISION

Beverly public school teacher who was dismissed in 1996 was not eligible to purchase creditable service for out-of-state public teaching, where he filed two separate applications to purchase creditable service in 2001 and then again in 2007, because he was not a member in service on either occasion.

DECISION

The Petitioner, James Geller, appealed timely under G.L. c. 32, § 16(4) the August 8, 2007 decision of the Respondent, Massachusetts Teachers' Retirement System (MTRS), to deny his application to purchase creditable service for time he spent teaching in a public school in Detroit, Michigan because, at the time of the application, he was no longer a member in service. (Exs. 1, 2.)

I held a hearing on March 25, 2009 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

I admitted sixteen documents into evidence. (Exs. 1-16.) I marked the parties' pre-hearing memoranda for identification as A and B. The Petitioner testified on his own behalf. The Respondent called no witnesses. There is one cassette tape of the hearing.

FINDINGS OF FACT

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

1. James Geller, d.o.b. 6/17/42, worked as a teacher in the Beverly public schools from September 1, 1972 to October 29, 1996. (Exs. 9, 14, 15.)

2. On October 29, 1996, Mr. Geller was dismissed from his position for conduct unbecoming a teacher after it was determined that Mr. Geller had used physical force against students on three separate occasions. (Ex. 14.)

3. At no time after his dismissal did Mr. Geller return to work in the Beverly public schools or any other public school in Massachusetts. (Testimony.)

4. Mr. Geller petitioned the Commissioner of Education for arbitration of his dismissal, as provided under G.L. c. 71, § 42, fourth par., and the matter was heard by Arbitrator Mark M. Grossman, Esq. (Exs. 8, 14, 15.)

5. On August 8, 1997, Arbitrator Grossman issued an award reinstating Mr. Geller o his teaching position without back pay. (Ex. 11.)

6. The Beverly School District filed an appeal of the arbitrator's award with the Superior Court. The Superior Court affirmed the arbitrator's award on January 5, 1998. (Ex. 12.)

7. Thereafter, the Beverly School District filed an appeal of the Superior Court judgment with the Appeals Court. (Ex. 12.)

8. On October 23, 2000, the Appeals Court reversed the judgment of the Superior Court and vacated the arbitrator's award. (Ex. 14.)

9. Mr. Geller sought further appellate review from the Supreme Judicial Court, which was allowed. On October 5, 2001, the Court vacated the arbitrator's award and remanded the matter to Arbitrator Grossman for further proceedings. (Ex. 15.)

10. On remand, Arbitrator Grossman declined to reinstate Mr. Geller. (Testimony.)

11. From September 1971 until June 1972, Mr. Geller was employed as a teacher in a public day school in Detroit, Michigan. (Testimony.)

12. On April 9, 2001, Mr. Geller applied to purchase one year of creditable service for the time he spent teaching in Detroit. (Ex. 6.)

13. The Massachusetts Teachers' Retirement System issued a bill for $876.09 to Mr. Geller for the year of creditable service that he requested. The bill directed Mr. Geller to complete the purchase by paying the total amount due by June 1, 2001, or by entering into an installment plan if the amount due was more than one thousand dollars. (Ex. 7.)

14. Mr. Geller did not purchase the creditable service at that time. (Ex. 7; Testimony.)

15. Mr. Geller applied for superannuation retirement on April 10, 2007, when he again applied to purchase creditable service for his teaching in Detroit. (Exs. 8, 9, 10.)

16. On the 2007 application, above the signature line, the form states: "I understand that if I wish to purchase this service, I will have to pay the total amount due while I am either an active member of the MTRS or an inactive member on an authorized leave of absence . . . ." (Ex. 10.)

17. On August 8, 2007, the MTRS denied Mr. Geller's request to purchase creditable service on the grounds that he was an inactive member of the MTRS and not a member in service. (Ex. 1.)

18. Mr. Geller filed a timely appeal of the Board's decision on August 22, 2007. (Ex. 2.)


CONCLUSION AND ORDER

After careful consideration of the evidence presented in this case, the decision of the Massachusetts Teachers' Retirement Board is affirmed. James Geller was not eligible to purchase creditable service because he was not a member in service when he filed his application.

When a member retires from public service, he or she is entitled to a superannuation retirement allowance that is based on age, years of creditable service, the highest thirty-six consecutive months of regular compensation and group classification. G.L. c. 32, § 5(2)(a). The issue in this case has to do with creditable service, which G.L. c. 32, § 1 defines as "all membership service, prior service and other service for which credit is allowable to any member under the provisions of sections one to twenty-eight inclusive." (Emphasis added.) The vast majority of the time creditable service is accumulated by working in public service in Massachusetts, which is counted as membership service under chapter 32.

There are other ways to accumulate creditable service, however.
One form of "other service" that can qualify as creditable service is out-of-state public school teaching. G.L. c. 32, § 3(4) allows qualified education professionals the ability to purchase creditable service based on qualified out-of-state education employment. Section 3(4) provides, in relevant part:
Any member in service, or any member inactive on authorized leave of absence of the teachers' retirement system, or any member in service, or any member inactive on authorized leave of absence of any other contributory retirement system who is employed in a teaching position . . . who had rendered service in any other state for any previous period as a teacher . . . in the public day schools or other day school under exclusive public control and supervision . . . may, before the date any retirement allowance becomes effective for him, pay into the annuity savings fund of the system in one sum, or in installments, upon such terms and conditions as the board may prescribe, 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 a public school of the commonwealth and had he been a member of the teachers' retirement system during the period the service was rendered . . . .

(Emphasis added.) A "member in service" is
[a]ny member who is regularly employed in the performance of his duties . . . . In any event the status of a member in service shall continue as such until his death or until his prior separation from the service becomes effective by reason of his retirement, resignation, failure of re-election or reappointment, removal or discharge from his office or position, or by reason of an authorized leave of absence without pay other than as provided for in this clause.

G.L. c. 32, § 3(1)(a)(i) (emphasis added).
Although this appeal concerns only his appeal from the MTRS's 2007 decision denying his application to purchase creditable service, Mr. Geller applied to purchase the same creditable service twice, once in April 2001 and again in April 2007. In 2001, Mr. Geller was issued a bill to purchase the creditable service, but Mr. Geller did not complete the transaction by paying for it. When he applied again in 2007, the MTRS denied his request because he had not been a member in service since 1996, when he was dismissed from his teaching position.
At the time Mr. Geller sought to purchase creditable service for the year he spent teaching in the Detroit, Michigan public schools he was not a member in service nor was he on an authorized leave of absence. Mr. Geller was dismissed from his teaching position in October 1996. At that time, therefore, he ceased to be a member in service. See G.L. c. 32, § 3(1)(a)(i).

Mr. Geller argues, though, that he was a member in service for the period that he was challenging his discharge, first in arbitration in 1996, then in the Superior Court in 1998, Beverly School Dist. v. James Geller, No. 97-4739-A, slip op. at 7 (Mass. Super. Ct. Jan. 5, 1998), then at the Appeals Court in 2000, School Dist. of Beverly v. James Geller, 50 Mass. App. Ct. 290, 298 (2000), and finally at the Supreme Judicial Court in 2001, School Dist. of Beverly v. James Geller, 435 Mass. 223, 224 (2001). This argument could only theoretically apply to Mr. Geller's first attempt to purchase creditable service in April 2001, six months after the Appeals Court reversed the Superior Court's judgment and vacated the arbitrator's award (including Mr. Geller's reinstatement), 50 Mass. App. Ct. at 298, and six months before the Supreme Judicial Court affirmed the Appeals Court's reversal and decision vacating the arbitrator's award, 435 Mass. at 224. Clearly, Mr. Geller was not a member in service in 2007 because the arbitrator's award and reinstatement of Mr. Geller had been finally vacated by the Supreme Judicial Court in 2001.

As for the 2001 attempt to purchase creditable service, Mr. Geller never completed the purchase while he was a member in service. In fact, Mr. Geller ceased to be a member in service when he was discharged from his position in 1996 because Mr. Geller never returned to work for the Beverly schools or any other qualifying school in Massachusetts. A member in service is any "member who is regularly employed in the performance of his duties." Though Mr. Geller was temporarily reinstated by the arbitrator, he was no longer regularly employed in the performance of his duties as a teacher in 2001, when he made his first application to purchase creditable service.

Mr. Geller gave vague and unconvincing testimony that he attempted to return to work as ordered by the arbitrator but that Beverly school officials stopped him from reporting to work, citing to him their appeal of the arbitrator's award to the Superior Court. Mr. Geller offered no documentary evidence at the hearing to support his assertions. Nor did Mr. Geller seek to have his reinstatement enforced by the Superior Court. Geller, No. 97-4739-A, slip op. at 3 n.2. Without having returned to work to perform the duties of a teacher on a regular basis, Mr. Geller's claim that he was a member in service at any time after he was discharged in 1996 must fail. Because he was not a member in service when he sought to purchase creditable service, Mr. Geller was ineligible to make the purchase.

The MTRS properly denied the Petitioner's application to purchase creditable service for his teaching in Detroit. The decision of the Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

______________________________________________
Kenneth J. Forton, Esq.
Administrative Magistrate


DATED: 9/25/09