COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Kathleen Barry,

Petitioner

v. Docket No. CR-06-226

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Brian P. Barry, Esq.

671 Rogers St.
Lowell, MA 01852

Appearance for Respondent:

James O'Leary, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Kimberly A. Fletcher, Esq.


DECISION

Kathleen Barry is appealing the April 4, 2006 decision of the Teachers' Retirement System denying her creditable service for her service with the Lowell Cemetery Commission (Ex. 1). She appealed timely under the provisions of G.L. c. 32, § 16(4) (Ex. 2). I heard the appeal on December 18, 2007 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

There are eight documents in evidence (Exs. 1 - 8). I marked the pre-hearing memorandum of the Petitioner as "A" for identification and the pre-hearing memorandum of the Respondent as "B" for identification. Ms. Barry testified; there is one tape of the hearing.

Findings of Fact

1. Kathleen Barry was a teacher for the Lowell public schools between 1975 and 1983 and was a member of the Teachers' retirement system (testimony).

2. Ms. Barry returned to teaching in 1984 and taught into 1986. She then left teaching service and returned in the fall of 1998. She is currently employed as a special education teacher for the Lowell public schools (testimony).

3. In 1996, Ms. Barry applied to become a member of the Lowell Cemetery Commission. She was interested in serving because she knew that 75% of her medical and dental insurance would be paid by the City. She would not have applied without this inducement (testimony).

4. In June 1996, Ms. Barry was appointed Commissioner of the Lowell Cemetery Commission by the City Manager. She served until sometime in the fall of 1998 (Ex. 3 and testimony).

5. Ms. Barry attended monthly meetings of the Lowell Cemetery Commission. On occasion, she went to City cemeteries to oversee work being done. She had no set hours and her time spent on cemetery business varied. Some weeks she did not work at all (testimony).

6. The Lowell Cemetery Commission is within the Department of Parks and Recreation (testimony).

7. At the beginning of her service on the Lowell Cemetery Commission, Ms. Barry was given a coupon book for her insurance payments. Each month she would write a check representing 25% of the total monthly premium owed for Master Medical Blue Cross Blue Shield insurance and send the check to the City of Lowell. The City would then pay the total premium (testimony).

8. Ms. Barry's 25% contribution for medical and dental totaled $118.23 from June 1996 through May 1997. From June 1997 through the end of her service, her 25% contribution for medical and dental totaled $148.77 (Ex. 8).

9. Ms. Barry did not receive a W-2 form or a 1099 for her Cemetery Commission service (testimony).

10. On July 28, 2004, Ms. Barry wrote to the Teachers' Retirement Board asking to purchase credit for serving on the Cemetery Commission (Ex. 4).

11. On July 1, 2005, the Lowell Retirement Board advised the Teachers' Retirement Board that it denied creditable service for Ms. Barry for her Cemetery Commission service (Ex. 7).

12. On April 4, 2006, the Teachers' Retirement Board advised Ms. Barry that it was denying her request to purchase her Cemetery Commissioner service and she appealed (Exs. 1 and 2).

Conclusion and Order

The decision of the Teachers' Retirement System denying Ms. Barry's request to purchase her service as a Lowell Cemetery Commissioner is affirmed. Ms. Barry is not eligible to purchase her service because she was not an "employee" while serving as a Cemetery Commissioner.

The word "employee" is defined in Chapter 32, § 1 as follows:

'Employee', as applied to persons whose regular compensation… is paid by any political subdivision of the commonwealth…shall mean any person who is regularly employed in the service of any such political subdivision…(emphasis added).

Ms. Barry was not "regularly employed" in the service of Lowell while serving on the Lowell Cemetery Commission. She attended monthly meetings but had no set hours and her time spent on cemetery business varied with no time spent during some weeks. The term, "regularly employed," is not expressly defined but its meaning was discussed in Burnside v. Bristol County Board of Retirement, 226 N.E. 2d 234 (1967). In that case, the plaintiff worked as a deputy sheriff for which service he was paid compensation based on a per diem basis for each day he served in court. During his years as a deputy sheriff, he worked approximately 52 to 150 days per year. The Supreme Judicial Court held that the plaintiff was not an "employee" for the purposes of G.L. c. 32, § 3(2)(f) because he was not "regularly employed."

In order to purchase creditable service under the provisions of G.L. c. 32, § 3(5), a member of a retirement system must have rendered service "as an employee."

Based on the foregoing, the decision of the Teachers' Retirement System denying Ms. Barry's request to purchase her time on the Lowell Cemetery Commission is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kimberly A. Fletcher
First Administrative Magistrate

DATED: 2/6/08


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