COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Linda Rings,


Petitioner

v. CR-06-526
Dated: 12/10/09


Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Linda D. Rings

54 Kavanaugh Road
Old Orchard Beach, ME 04064

Appearance for Respondent:

James O'Leary, Esq.

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


Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION


The Teachers' Retirement System properly denied the Petitioner's request to purchase creditable service for her out-of-state service as her employment at Concord University did not meet the required statutory definition of teacher nor was the Lab School a "public school" as defined by G.L. c. 32, §1.


DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Linda Rings, is appealing the July 27, 2006 decision of the Respondent, Teachers' Retirement System, denying her request to purchase creditable service for the service she rendered as an Assistant Instructor in Education at Concord University during the period of September 8, 1968 through May 31, 1969. (Exhibit 1.) The appeal was timely filed in accordance with the provisions of G.L. c. 32, § 16(4).

Pursuant to the provisions of 801 CMR 1.01 (10)(c), the parties agreed to submit the case on written submissions and to waive a hearing. On May 27, 2009, the Petitioner submitted proposed exhibits as well as a written argument. On July 2, 2009, the Respondent also submitted proposed exhibits and written argument. The record was left open until October 30, 2009 to give the Petitioner additional time to secure documentation from Concord University relative to the status of the Lab School. No additional information was received and the record was closed on November 2, 2009.

The following exhibits are now marked into evidence:

1. Decision Letter dated 7/27/06
2. Appeal Letter dated 8/3/06
3. Letter from Petitioner to Respondent dated 8/3/06
4. Application to Purchase Out of State Service dated 4/30/06
5. Letter to DALA from Gary Hylton of Concord University dated 10/10/06
6. Email requests dated 4/11/08 through 4/15/08 for information from Respondent to Concord University and responses
7. Email requests dated 4/15/09 through 6/8/09 for information from Respondent to Concord University and responses
8. Petitioner's Retirement Application

FINDINGS OF FACT

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

1. The Petitioner, Linda Rings, d.o.b. 8/18/41, is a retired member of the Massachusetts Teachers' Retirement System, having worked as a teacher in both the Bedford, MA Public School System and the Cambridge, MA Public School System. The effective date of her retirement was August 19, 2006. (Exhibit 8.)

2. During the period of September 8, 1968 through May 31, 1969, the Petitioner worked as an "Assistant Instructor in Education" at a "Lab School" operated by Concord University, located in Athens, West Virginia. (Exhibits 2, 3, & 4.)

3. The Petitioner's position was not that of a professor as she did not possess a Master's Degree, a credential deemed necessary by Concord University to hold the position of professor. (Exhibits 2 & 3.)

4. Certification by the State Department of Education was not a requirement for the position of Assistant Instructor at the Lab School. (Exhibit 4.)

5. The Petitioner's position as an Assistant Instructor was to supervise college students who worked in the classroom as part of their education course as well as to teach both kindergarten and pre-kindergarten age children. (Exhibit 2.)

6. Ms. Rings was not eligible to participate in a retirement plan other than Social Security during her one year of employment as an "Assistant Instructor in Education" at the "Lab School" operated by Concord University. (Exhibit 4.)

7. On April 30, 2006, the Petitioner requested that she be permitted to purchase as creditable service, the one year, i.e., September 8, 1968 through May 31, 1969, that she worked as an Assistant Instructor at the Lab School of Concord University in West Virginia. (Exhibit 4.)

8. On July 27, 2006, the Respondent notified the Petitioner that her request to purchase this service had been denied. (Exhibit 1.)

9. By letter dated August 3, 2006, the Petitioner filed an appeal of this denial with the Contributory Retirement Appeal Board. (Exhibit 2.)


CONCLUSION

The Petitioner is not eligible to purchase her prior service as an Assistant Instructor at the Lab School of Concord University, as she was not considered to be a teacher of college students during the period of time in question. In addition, in her position of Assistant Instructor at the Lab School of Concord University, the Petitioner did not meet the statutory definition of teacher, as defined in Chapter 32, § 1 as the Lab School was not a "public school" as defined by the statute.
G.L. c. 32, § 3(4) permits teachers to purchase their prior, out of state service as a teacher.

The statute provides that:

Any member in service … who is employed in a teaching position or as a principal, supervisor or president in a school or college, or employed in the department of education as supervisor of teachers or of educational methods, who had rendered service in any other state for any previous period as a teacher, principal, supervisor or superintendent in the public day schools or other day school under exclusive public control and supervision, or in a public academy, or as a teacher, principal, supervisor or president in a state normal school, state teachers college, or like institution … 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 … had such service been rendered in the public school of the commonwealth and had he been a member of the teachers' retirement system during the period the service was rendered … such member shall receive the same credit for such period of his previous out-of-state service … would have been allowed if such service had been rendered by him in a public school of the commonwealth ….

G.L. c. 32, § 1 defines teacher as:

Any person who is employed by one or more school committees or boards of trustees or by any combination of such committees and boards on a basis of not less than half-time service as a teacher, school psychologist, school psychiatrist, school adjustment counselor or school social worker … director of occupational guidance … principal, supervisor, or superintendent in any public school as defined in this section, or as a supervisor or teacher of adult civic education …."

The positions eligible for purchase in accordance with the provisions of G.L. c. 32, § 3(4) are the same as the positions listed in the definition of teacher as outlined in G.L. c. 32, § 1. As such, the work must either have been actual classroom teaching or a job that is equivalent in both duties and qualifications. Mackay v. CRAB, 56 Mass. App. Ct. 924 (2000). See also Squeglia v. Teachers' Retirement Board, Suffolk Superior Court, Civil Action No. 00-214 (May 2, 2001).
Had the Petitioner been employed in an equivalent position in Massachusetts to the position that she held as an Assistant Instructor at the Lab School, she would not have been entitled to membership in the Teachers' Retirement System as she did not hold the title of "teacher," nor was she the teacher of public college students. Moreover, she did not have the qualification to be a professor or an instructor at Concord University. She did not possess a Master's degree, a qualification deemed essential by Concord University for those holding the position of professor or instructor. In addition, the position of Assistant Instructor did not require that the individual employed in that capacity hold a valid teaching certification.

Rather, in her position as Assistant Instructor, the Petitioner merely ran the lab section of the college course that the students attended. In the case of Lachance v. CRAB, 62 Mass. App. Ct. 1118 (2005) Memorandum and Order Pursuant to Rule 1:28, A.C. No. 2004-P-81, a Massachusetts teacher sought to purchase time he had worked during the 1960's as a Research Assistant to a professor at the University of Rhode Island. Similar to Ms. Rings, Mr. LaChance ran the lab portion of the professor's course and was even responsible for teaching some sessions of the course when the professor was unavailable. In seeking to purchase his service as a Research Assistant, Mr. Lachance argued that since he served as a "teacher," he was entitled to creditable service for the period of time that he worked at the University of Rhode Island. The Appeals Court in rejecting Mr. Lachance's claim, found that CRAB was correct in concluding that the duties that he performed were not equivalent to those of a teacher or a professor; rather, the Court determined that Mr. Lachance was essentially only an assistant to a college professor.

In the present case, Ms. Rings' interaction with students at Concord University was even more limited than that of Mr. Lachance's as she simply maintained a laboratory environment for the education students to observe. No evidence was presented to demonstrate that she provided direct instruction to the college students as to how to interact with children, or that she evaluated the college students, or had any input into the grades the college students received in the course.

Having concluded that the Petitioner was not a teacher to the Concord University students, I now turn to the issue as to whether the Petitioner could be considered a teacher of the young children who attended the Lab School. In order to allow Ms. Rings to purchase this service, the Lab School is required under the provisions of G.L c. 32, §§ 1 and 3(4) to be a public school run under the supervision of a local school committee or board of trustees.

Although Teachers' Retirement System attempted to contact Concord University on several occasions concerning the nature of the Lab School, it was not able to secure any information about the school. The record in this case was left open for many months in order to afford the Petitioner ample opportunity to attain any information concerning whether the Lab School had any of the characteristics of a public school, i.e., operation under the supervision of a school committee or board of trustees, or other locally controlled education and whether the student body was drawn from the local surrounding community etc. However, the Petitioner did not present any information whatsoever concerning the nature of the Lab School nor any information concerning the student body.

Since the Petitioner did not meet her burden of proof to establish that the Lab School was a public day school, she is not entitled to purchase her prior out-of-state service in the Lab School under the provisions of G.L. c. 32, § 3(4).
For the foregoing reasons, the decision of the Teachers' Retirement System denying the Petitioner's request to purchase her out-of-state service as an Assistant Instructor at the Lab School of Concord University is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/

Joan Freiman Fink
Administrative Magistrate


Dated: 12/10/09