COMMONWEALTH OF MASSACHUSETTS


DIVISION OF ADMINISTRATIVE LAW APPEALS

Nancy Levine-Wilson,

Petitioner

V Docket No. CR-06-216

Massachusetts Teachers' Retirement System,

Respondent

For the Petitioner:

Americo A. Salini, Jr.

Massachusetts Teachers Association
Division of Legal Services
20 Ashburton Place
Boston, MA 02108

For the Respondent:

James O'Leary, Esq.

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

Francis X. Nee

Administrative Magistrate

SUMMARY OF DECISION

I deny petitioner's request to purchase her out of state teaching service. G. L. c. 32, sec. (3)(4). I do so because the teaching position she held in Ohio did not require certification from the Ohio Department of Education and, thus, does not meet the definition of teacher in 807 CMR 4.02. Consequently, I do not decide whether her teaching in an "other day school under exclusive public control and supervision" meets the statutory definition of "teacher." G. L. c. 32, sec. 1.

DECISION

On March 30, 2006, the Massachusetts Teachers' Retirement System denied Nancy Levine-Wilson's request to purchase out of state teaching service. G. L. c. 32, sec. 3(4). Ms. Levine-Wilson appealed. G. L. c. 32, sec. 16(4). On October 12, 2007, the parties filed a joint prehearing memorandum that included stipulations of fact.

I held a hearing on October 15, 2008, at the Division of Administrative Law Appeals, 98 North Washington Street Boston. Prior to the hearing, Ms. Levine-Wilson filed a prehearing memorandum and proposed exhibits. During the hearing, I marked 16 proposed exhibits for identification and accepted 14 into the record. Ms. Levine-Wilson was the sole witness. I recorded the hearing on one tape cassette. I closed the record after receiving the parties' post-hearing briefs on December 15, 2008.

FINDINGS OF FACT

Based on the stipulations of fact, the testimony of Ms. Levine-Wilson, the exhibits, and reasonable inferences drawn from the evidence, I make the following findings of fact:

1. Nancy Levine-Wilson was an active member of the Teachers' Retirement System when in June 2005 she submitted a request to purchase out of state teaching service (Testimony of Levine Wilson and Stipulations of Fact).

2. Ms. Levine-Wilson's request covered the period from September 1974 to June 1976, when she worked full-time at the Weaver Learning Center in Tallmadge, Ohio (Testimony of Levine-Wilson, Ex. 3, Ex. 4, Ex. 5 and Ex. 12).

3. During her two years at the Weaver Learning Center, Ms. Levine-Wilson was a public employee. She contributed to the Ohio Public Employee Retirement System and was excluded from the Social Security System (Ex. 12).

4. When Ms. Levine-Wilson left the Weaver Learning Center, she withdrew her contribution to the Ohio retirement system and she is not entitled to a pension from that system (Testimony of Levine-Wilson).

5. The Weaver Learning Center was and is still operated by the County of Summit Board of Mental Retardation and Developmental Disabilities (Stipulations of Fact).

6. The Weaver Learning Center provided educational and other services to mentally retarded students, ages 6 to 21. It was reimbursed by the Ohio Department of Education for some of the educational services it provided (Ex. 12).
7. The Weaver Learning Center operated on the ten month public school calendar and provided its students a six hour school day.

8. Each day, all the students were transported to and from the Weaver Learning Center on buses provided by Summit County (Ex. 12).

9. At the Weaver Learning Center, Ms. Levine-Wilson performed traditional teaching duties including: supervision of her class, preparation of lesson plans, assessing and scoring student performance, planning and teaching daily lessons, scheduling and conducting parent-teacher conferences, supervising students in the lunchroom and playground, and developing individual education plans to address the special educational needs of her students (Testimony of Levine-Wilson and Ex. 12).


10. At the Weaver Learning Center, Ms. Levine-Wilson served as an "Instructor III". A prerequisite for this position was certification from the Ohio Department of Mental Retardation and Developmental Disabilities (Ex. 3).

11. While employed at the Weaver Learning Center, Ms. Levine-Wilson held certificates from both the Ohio Department of Education and the Ohio Department of Mental Retardation and Developmental Disabilities (Testimony of Levine-Wilson and Ex. 8).

12. Certification from the Ohio Department of Education was not a prerequisite for the "Instructor III" position (Ex. 3).

13. In 1976, when Ms. Levine-Wilson was hired to teach in the Natick Public Schools, Natick placed her at the third year of the salary scale based on her two years of teaching at the Weaver Learning Center (Testimony of Levine-Wilson).

14. The children that Ms. Levine-Wilson was hired to teach in Natick had the same disabilities as the children she had taught at the Weaver Learning Center (Testimony of Levine-Wilson).

DISCUSSION

Ms. Levine-Wilson's application meets many of the criteria for purchasing credit for out of state teaching service found in the Retirement Statute. She is an active member of the Teachers' Retirement System (Finding 1). She is not entitled to a retirement allowance from Ohio for her work at the Weaver Learning Center (Findings 3 and 4). Her duties at Weaver were those of a teacher (Finding 9). Ms. Levine-Wilson, however, may purchase credit for her time working in Ohio only if she can establish two more things. First, that Weaver was either a "public day school" or "other day school under exclusive public control and supervision". G. L. c. 32, sec. (3)(4). Second, that her Instructor III position was that of a teacher as defined in both G. L. c. 32, sec. 1 and 807 CMR 4.02.

PUBLIC DAY SCHOOL


The Retirement Statute defines "public school" as "any day school conducted in the commonwealth under the superintendence of a duly elected school committee….". G. L. c. 32, sec. 1. Applied literally, this definition would restrict purchase of out-of-state teaching to work performed at public schools in the Commonwealth of Massachusetts. The Teachers' Retirement System (TRS) does not argue for this literal application of the definition.

While TRS recognizes that other states may not have locally elected school committees, it contends that to be eligible for purchase, out of state teaching must have occurred in a day school, which like Massachusetts public schools, is under the superintendence of a public entity entrusted with providing free public education to all students in a geographic area who meet age and qualification requirements.

Weaver was and is still operated by the County of Summit Board of Mental Retardation and Developmental Disabilities (Finding 5). The Board's mission is to provide services to the retarded and developmentally disabled residents of Summit County; and, it is not entrusted with providing free public education to all students in a geographic area who meet age and qualification requirements. Thus, Weaver is not a "public day school".


OTHER DAY SCHOOL UNDER EXCLUSIVE PUBLIC CONTROL AND SUPERVISION

Ms. Levine-Wilson argues that Weaver is an "other day school under exclusive public control and supervision," and, she is, therefore, eligible to purchase credit for her work there.

Weaver operates on a public school calendar and provides six hours of instruction each day (finding 7). There are no resident students; buses transport all the students to and from the Weaver each day (finding 8). Thus, Weaver is a day school. Additionally, Weaver is operated by the Summit County Board of Mental Retardation and Developmental Disabilities, which is part of county government. Therefore, Weaver is a day school under exclusive public control and supervision.

"TEACHER"

TRS contends that even if Ms Levine-Wilson taught in a day school under exclusive public control and supervision, she is not entitled to purchase credit for her time because she was not working as a "teacher" as defined in either the Retirement Statute, G. L. c. 32, sec. 1, or TRS's regulations, 807 CMR 4.02.

TRS asserts that the word "teacher" is limited to those teaching in a public school, which like Massachusetts public schools, is under the superintendence of a public entity entrusted with providing free public education to all students in a geographic area who meet age and qualification requirements (See above discussion of public day schools).

TRS argues that a person engaged in teaching at Weaver does not meet the definition of "teacher" because the mission of the Summit County Board of Mental Retardation and Developmental Disabilities, the public entity overseeing Weaver, is limited to providing services to those who are mentally retarded or developmentally disabled. The Board is not entrusted with providing free public education to all students in a geographic area who meet age and qualification requirements

In response, Ms. Levine-Wilson relies on the preface to the definition section of the Retirement Statute. It states that the definitions are applicable to the entire statute "unless a different meaning is plainly required by the context." G. L. c. 32, sec. 1. She argues that in the context of a request to purchase credit for out of state teaching service in a "day school under exclusive public control and supervision," a different meaning of "teacher" is plainly required. She contends that applying the statutory definition of "teacher" to require that only teaching performed in a public day school is eligible for purchase renders the words "other day school under exclusive public control and supervision" meaningless and superfluous.

TRS replies that it has consistently applied the definition of teacher in G. L. c. 32, sec. 1 while reviewing requests to purchase out of state teaching and its approach has been sustained on appeal. TRS relies primarily on the case of Rodney Weston, who sought to purchase credit for out-of-state teaching service at the Daytime Development Center, a facility for the developmentally disabled in Fairfax, Virginia. The TRS denied Mr. Weston's request because the Daytime Developmental Center was operated by the Fairfax County Department of Health, whose mission does not include providing free public education to all students in a geographic area who meet age and qualification requirements.

Weston appealed and the Division of Administrative Law Appeals upheld the TRS's decision. Rodney Weston v. Teachers' Retirement System, CR-05-33 (September 6, 2006). Weston appealed the DALA decision to the Contributory Retirement Appeal Board, which adopted the DALA decision. Rodney Weston v. Teachers' Retirement System, CR-05-33 (CRAB 2007). Weston appealed to Superior Court, which affirmed the CRAB decision. Rodney Wilson v. Contributory Retirement Appeals Board & another, Civil Action No. 07-3133 (Suffolk Superior Court September 24, 2008) (Hines J.).

It is not necessary to decide whether Ms. Levine-Wilson's position meets the statutory definition of teacher because her position does not meet the regulatory definition of teacher.


TRS's regulations define a teacher as a person who (1) has an employment contract with a school, (2) works at least half-time, (3) has a certificate granted by the relevant board of education, and (4) the certificate is a prerequisite for the position they hold. 807 CMR 4.02.

Ms Levine-Wilson had a contract to work full-time as a teacher at Weaver and she was certified by the Ohio Department of Education. That certification, however, was not a prerequisite for the position she held (Finding 12). Thus, while working at Weaver, Ms. Levine-Wilson did not meet the regulatory definition of teacher.

CONCLUSION

Certification from the Ohio Board of Education was not a prerequisite for the position Ms. Levine-Wilson held at the Weaver Learning Center. Thus, that position did not meet the regulatory definition of "teacher" found at 807 CMR 4.02. Consequently, Ms. Levine-Wilson may not purchase credit for the time she worked at Weaver.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/S/ August 11, 2009


Francis X. Nee
Administrative Magistrate