COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Jan Ryerson,

Petitioner

v. Docket No. CR-07-655

Boston Retirement Board/Teachers' Retirement
System/State Board of Retirement,

Respondents

Appearance for Petitioner:

Jan Ryerson

75 Clarendon Street, #405
Boston, MA 02116

Appearance for Respondent Boston Retirement Board:

Edward McKenna, Esq.

66 N Street
South Boston, MA 02127

Appearance for Respondent Teachers' Retirement System:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142-1206

Appearance for Respondent State Board of Retirement:

Dennis J. Kirwan, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G.L. c. 32, §16(4), the Petitioner, Jan Ryerson, is appealing the inaction of the Respondent, Boston Retirement Board, on her request to purchase her time working for an educational collaborative entity from June 29 - August 30, 1994. She filed her request on or about July 11, 2007. (Ex. 7) Her appeal was timely filed on September 6, 2007, based on inaction by the Boston Retirement Board. (Ex. 1) A hearing was held November 13, 2007, 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) The Respondents Teachers' Retirement System and the State Board of Retirement were joined as necessary parties by motions of the Respondent Boston Retirement Board of November 7 and 9, 2007, which were allowed. ("A") One tape was used. The Petitioner testified. The record was held open to December 14, 2007 to receive further information from the Petitioner, and to December 21, 2007 for post-hearing arguments from the parties. ("B")

FINDINGS OF FACT

1. Jan Ryerson, d.o.b. 7/24/44, is a teacher in the Boston Public Schools and a member of the Boston Retirement System. (Exs. 3, 4 & 9. Testimony)

2. Ms. Ryerson did substitute teaching in the Boston Public Schools in 1966 and 1967 before becoming a teacher in the Boston Public Schools in 1967. She became a member of the Boston Retirement System at that time. She held teacher certification from the Department of Education. She left teaching in 1981, and withdrew her accumulated deductions. She had 14 years of creditable service. Thereafter, Ms. Ryerson also did substitute teaching in the Boston Public Schools. She was paid a per diem rate, and did this work at different schools. (Ex. 9. Testimony) She worked the following times as a substitute teacher:

1966/1967 (30 days)
1989/1990 (1 day)
1990/1991 (7 days)
1991/1992 (88 days)
1992/1993 (85 days)
1993/1994 (153 days)
9/1/94 - 12/31/94 (70 days)
1/1/95 - 4/25/95 (66 days) (Ex. 9)

3. Between June 29 and August 30, 1994, Ms. Ryerson worked as a teacher for an education collaborative which is now within the EDCO Collaborative for Greater Boston, Inc. (EDCO). She was paid by this entity, which received state and federal grant monies. She worked in a Lynn Public School Building teaching fifth grade students who were children of migrant workers. She worked daytime hours of 8:00 AM to 2:00 PM, Monday through Friday, totaling 30 days' worth of service. She was hired by EDCO employees and also supervised by them. EDCO gave her the assignment of what to teach. It was a structured teaching program. No job benefits came with this work. (Exs. 3 & 9. Testimony)

4. Ms. Ryerson did not return to EDCO teaching work again. (Ex. 9. Testimony)

5. After Ms. Ryerson resumed full-time teaching in the Boston Public Schools in the 1996-1997 school year, she became a member again of the Boston Retirement System. She had no further breaks in service. (Ex. 9. Testimony)

6. Ms. Ryerson has never been a member of the Teachers' Retirement System or of the State Retirement System. (Exs. 5, 6 & 9. Testimony)

7. Ms. Ryerson accomplished a buy back of her substitute teaching service within the Boston Public Schools for creditable service, receiving 2 years, 7 months and 14 days of creditable service. She also did a buy back of her prior 14 years of teaching service. She had a total of 29 years, 3 months and 14 days of creditable service by December 12, 2007 in the Boston Retirement System. (Ex. 9)

8. Ms. Ryerson sought to do a buy back for creditable service of her EDCO service from the summer of 1994. She filled out a form to do that and filed it in and
around late February 2007 with the Boston Retirement Board. The EDCO filled out her prior service information on the form, listing her pay as $2,090.55 based on 30 days at $12.67 per hour. (Ex. 3. Testimony)

9. The Boston Retirement Board in March 2007 asked the Teachers' Retirement System if it would accept liability for this 1994 EDCO service pursuant to G.L.c.32, §3(8)(c). The Boston Retirement Board wrote that Ms. Ryerson at the time "was enrolled in your retirement system while this service was performed." (Ex. 4)

10. The Teachers' Retirement System responded to the Boston Retirement Board that Ms. Ryerson has never been a member of the Teachers' Retirement System. (Ex. 5)

11. The Boston Retirement Board again raised the same issue, and by letter of June 21, 2007, the Teachers' Retirement System again responded that Ms. Ryerson had never been a member of the System, and that it would "not accept any liability for Ms. Ryerson's part-time service from June 29, 1994 through August 30, 1994." (Exs. 4 & 6)

12. By letter of July 11, 2007, Ms. Ryerson sought a decision from the Boston Retirement Board about her request to purchase creditable service for her work for the EDCO in 1994. She acknowledged that the Teachers' Retirement System would not accept liability for that service. (Ex. 7)

13. Ms. Ryerson met with the Public Employee Retirement Administration Commission (PERAC) on July 19, 2007 about her request to the Boston Retirement Board and about how she was seeking a decision from the Board. By letter of July 27, 2007, the Teachers' Retirement System sent to PERAC the DALA decision of McCarty v. Taunton Retirement Board and Teachers' Retirement System, CR-89-828 (DALA, 4/15/1993) (No CRAB Decision) in support of its determination that Ms. Ryerson would not have recourse for creditable service through the Teachers' Retirement System, leaving her with a claim through G.L.c.32, §3(5) with the Boston Retirement System where she is a member. (Exs. 2 & 8)

14. PERAC wrote Ms. Ryerson on August 30, 2007. PERAC remarked how it sent the Boston Retirement Board a copy of the McCarty, supra decision on July 30, 2007 along with a request that the Board make a decision on Ms. Ryerson's claim. In the letter, PERAC informed Ms. Ryerson that it had not received a response from the Boston Retirement Board. PERAC provided Ms. Ryerson with information on how to appeal to the Contributory Retirement Appeal Board for further relief. (Ex. 2)

15. Ms. Ryerson never received a response from the Boston Retirement Board on her request for purchasing creditable service for the 1994 summer service, and she filed a timely appeal on September 6, 2007 by letter of September 3, 2007 based on the Board's inaction. (Ex. 1. Testmony)

Conclusion

Although the State Board of Retirement was joined as a party Respondent, the Board did not file any legal arguments or question Ms. Ryerson at the hearing. The Teachers' Retirement System did not appear at the hearing, but did provide its legal argument post hearing. The Teachers' Retirement System finds that Ms. Ryerson was never a member of their System at the time she worked for the EDCO for two months in 1994, and that she would not have qualified for membership at the time due to the temporary nature of the teaching work she did, citing to G.L. c. 32, §3(2)(a)(iv) (a Board can determine policies and procedures regarding how it will treat temporary and seasonal employment in terms of eligibility for membership and creditable service) and the case of Evans v. CRAB, 46 Mass. App. Ct. 229 (1999) (pay for summer school teaching done apart from the work under the teacher's regular contract was not pay that was included in the teacher's retirement allowance calculation). The Boston Retirement Board argues that Ms. Ryerson has the burden of proof to demonstrate entitlement to do a buy back for creditable service for this EDCO service by providing sufficient support through documentation and other evidence, which she has failed to do.

EDCO is addressed by G.L. c. 40, §4E, which explains:

… two or more school committees of cities, towns and regional school districts may enter into a written agreement to conduct education programs and services which shall complement and strengthen the school programs of member school committees and increase educational opportunities for children. The school committees shall collaborate to offer such programs and services, and the association of school committees which is formed pursuant hereof to deliver such programs and services shall be known as an education collaborative.

The statute also makes the EDCO's Board of Directors,

a public employer … [with] the authority to employ personnel, including teachers, to carry out the purposes and functions of the education collaborative. … The education collaborative shall be deemed to be a public entity ….

This statutory provision shows that during those two months in the summer of 1994 Ms. Ryerson worked for a public entity and a public employer of employees, including teachers. The statutory provision shows this was an educational program that enhanced the education programs offered by the member school committees of the educational collaborative. In light of the EDCO being a public employer who can hire teachers to carry out education programs under G.L. c. 40, §4E, it was a political subdivision under the G.L. c. 32, §1 definition. Once it was a political subdivision, it satisfied the Section 1 definition of being an employer by being, "any person, board, or commission with the power to appoint or employ personnel as employees of the commonwealth or any political subdivision subject to this chapter." Ms. Ryerson satisfied the definition of employee in Section 1, which in pertinent part covers: "persons whose regular compensation … is paid by any political subdivision of the commonwealth … [and] shall mean any person who is regularly employed in the service of any such political subdivision." Her work was service under the Section 1 definition of service since it was "service as an employee in any governmental unit for which regular compensation is paid." She received regular compensation as defined by Section 1 which includes "the salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority." By G.L. c. 32, §28(4)(c), the non-teacher EDCO employees, otherwise eligible, are made members of the State Retirement System, once the EDCO accepts the provisions of G.L. c. 32, §§1-28 inclusive. The EDCO of Greater Boston, Inc., did accept the provisions of Sections 1-28 inclusive in and around 1988 according to the case of Middlesex Retirement Board v. PERAC & State Board of Retirement, CR-04-19 (DALA, 5/24/05) (CRAB, 2/6/06), Suffolk Superior Court Civil Action No. 06-0946-A (Fahey, J., 3/2/07). Since Ms.Ryerson was a teacher, she would not have been a member of the State Retirement System if her work had qualified for Teachers' Retirement System membership. The pertinent retirement system for her work was the Teachers' Retirement System. Although this summertime service Ms. Ryerson performed satisfied the above G.L. c. 32, §1 definitions, it was performed on only a temporary basis as a teacher. It was never going to be service that was eligible for membership in the Teachers' Retirement System. 807 CMR 4.02, the eligibility for membership criteria of the Teachers' Retirement System, does not permit membership without a contractual agreement for employment with school committees. See 807 CMR 4.02(1)(a). If she had such a written employment agreement with the EDCO she did not provide any evidence of such a document. The regulation also requires that the employment cover at least half time service. See 807 CMR 4.02(1)(b). She only worked 30 days over a two-month time period. That is not at least half time of a ten-month teacher year of service. Creditable service for non-membership prior service is addressed in 807 CMR 3.03, but it addresses someone who has membership in the Teachers' Retirement System. Evans, supra, is further support for finding Ms. Ryerson was not eligible for Teachers' Retirement System membership.

No Boston Retirement Board regulations, policies or rules were presented at the
hearing as impacting on Ms. Ryerson's ability to buy back these two full-time months of service that was non-Boston Retirement System membership prior service. In any case, such rules would be pertinent only if the prior service had been service for the City of Boston, which it was not. Had she been eligible, the service would have pertained to the Teachers' Retirement System.

G.L.c.32, §3(5) permits an active member in one system to accomplish a purchase of creditable service for prior non-membership service through her current retirement system even though the prior service was pertinent to a different retirement system. In pertinent part it states:

[A]ny member of any system who rendered service in 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, … had such service been rendered in the governmental unit by which he is presently employed and in a position subject to the provisions of this chapter, …. Upon the completion of such payments such member shall receive the same credit for such period of his previous intrastate service … as would have been allowed if such service had been rendered by him in the governmental unit by which he is presently employed. Such member shall furnish the board with such information as it shall require to determine the amount to be paid and the credit to be allowed under this subdivision.

The Boston Retirement Board could try to gain reimbursement from the other
pertinent retirement system, the Teachers' Retirement System, for the outlay of funds for having provided this buy back to its member. In pertinent part G.L. c. 32, §3(8)(c) provides:

Whenever any retired member or beneficiary receives a pension or survivor's allowance from a system pertaining to one governmental unit in a case where a portion of such pension or survivor's allowance is attributable to service in a second governmental unit to which another system pertains, the first governmental unit shall be reimbursed in full, in accordance with the provisions of this paragraph, by the second governmental unit for such portion of the pension as shall be computed by the actuary ….

In the case of McCarty, supra, the Teachers' Retirement System sought Section
3(8)(c) reimbursement from the Taunton Retirement Board when it provided creditable service through a buy back of non-membership service done under Section 3(5). The service had been performed for the City of Taunton without membership eligibility within the Taunton Retirement System. Ms. McCarty was now a member of the Teachers' Retirement System. No reimbursement was allowed through Section 3(8)(c).

This situation is the same as the one faced by the Boston Retirement Board with Ms.
Ryerson's request. The pertinent other retirement system is the Teachers' Retirement
System. Ms. Ryerson was not eligible for membership with Teachers' Retirement
System for her temporary/seasonal work during the summer of 1994. Based on the
reasoning in McCarty, the Boston Retirement System is not allowed reimbursement for its outlay of funds for providing creditable service for that work through Section 3(5). The Boston Retirement Board contends Ms. Ryerson failed to provide sufficient proof about her service in 1994 for the Board to take action upon her claim. I conclude that Ms. Ryerson has now been able to provide enough necessary proof regarding the entity for whom she worked for two months during the summer of 1994. The current director of Contract Management and Human Resources of the EDCO Collaborative for Greater Boston, Inc. confirms her employment with "the EDCO Collaborative from June 29, 1994 through August 30, 1994 as a Teacher in EDCO's Migrant Education Program at the Lynn, Mass. site." (Ex. 9) The information this Director provided in Ms. Ryerson's form requesting creditable service is sufficiently specific; $2,0990.55 based on working 30 days at $12.67 per hour. (Ex. 3)

I conclude that the Boston Retirement Board has to grant Ms. Ryerson the ability to accomplish a buy back for creditable service for her 1994 prior non-membership service through EDCO pursuant to G.L.c.32, §3(5), and that the Teachers' Retirement Board does not have to accept liability and reimburse the Boston Retirement Board pursuant to G.L.c.32, §3(8)(c) because of the holding in McCarty, supra.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate

DATED: March 10, 2008


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