COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Robert Brennan,

Petitioner

v. Docket No. CR-06-405

Teachers' Retirement System and
Stoneham Retirement Board,

Respondents

Appearance for Petitioner:

Robert L. Brennan, Jr., Esq.

Brennan, Dain, LeRay & Wiest, PC
129 South Street
Boston, MA 02111

Appearance for Teachers' Retirement System:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park, 2nd Floor
Cambridge, MA 02142

Appearance for Stoneham Retirement Board:

Lane E. Hermann, Esq.

Law Offices of Michael Sacco
285 College Hwy.
P.O. Box 479
Southampton, MA 01073

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

Robert Brennan is appealing the June 12, 2006 decision of the Teachers' Retirement System that he is not eligible to purchase his Connecticut teaching service (Ex. 1). He appealed timely under the provisions of G.L. c. 32, § 16(4) (Ex. 2). On January 22, 2008, I allowed the Stoneham Retirement Board's motion to intervene. I heard the appeal on February 19, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

There are 10 documents in evidence (Exs. 1 - 10). I marked the joint, pre-hearing memorandum as "A" for identification, Petitioner's two supplemental memoranda as "B" for identification, and Teachers' Retirement System's pre-hearing memorandum as "C" for identification. Mr. Brennan testified; there is one tape of the hearing.

Findings of Fact

1. Robert Brennan, d.o.b. 7/7/46, was a 5th grade teacher in Waterbury, Connecticut between September 1, 1968 and July 27, 1970. During this period, he was a member of the Connecticut State Retirement System. When he left the 5th grade position, he was refunded his retirement contributions (Ex. 7, A and testimony).

2. Mr. Brennan worked as a teacher in Reading, Massachusetts from September 1970 to June 1973. As a result of this employment, he was a member of the Teachers' Retirement System (A).

3. On the enrollment form that he completed on July 24, 1970 for the Teachers' Retirement System, Mr. Brennan listed his Waterbury, Connecticut service in the following section: "State below all previous public day school service, including service in other states, for which you have not paid deductions into the Massachusetts Teachers' Retirement System…" (Ex. 7).

4. The back of the enrollment form states:

A member in service may establish credit for SERVICE IN OTHER STATES as a teacher…Service for which a member desires to establish credit must be verified on blanks furnished by the Retirement Board, and the member must pay the deductions which he would have paid if the service had been rendered in Massachusetts
with accumulated interest to date of payment (Ex. 7).

5. Mr. Brennan never received any other forms from the Teachers' Retirement System regarding his ability to purchase his Connecticut service (testimony).

6. Mr. Brennan left his Reading, Massachusetts teaching position in June 1973 without having purchased his Connecticut service. He entered the private sector and withdrew his accumulated retirement deductions (A and testimony).

7. On October 1, 2001, Mr. Brennan began working for the Town of Stoneham as a Kitchen Manager in a high school. As a result of this employment, he became a member of the Stoneham Retirement System. In or around December 2004, Mr. Brennan purchased his prior creditable service for his Reading, Massachusetts teaching service. This service amounted to three years and the Teachers' Retirement System accepted liability for this service pursuant to G.L. c. 32, § 3(8)(c) (A).

8. Mr. Brennan supervises nine staff members who prepare meals for the high school as well as six other schools in Stoneham. One of the people Mr. Brennan supervises drives a truck delivering meals to the other schools (testimony).

9. Mr. Brennan is currently a member of the Massachusetts Teachers Association, the Stoneham Teachers Association and the National Education Association (testimony).

10. On May 9, 2006, Mr. Brennan wrote to Gregory Zammuto, Administrator of School Finance in the Stoneham Public Schools, requesting help in purchasing his two years of teaching in Connecticut (Ex. 9).

11. On May 24, 2006, the Retirement Administrator of the Stoneham Retirement Board wrote to the Teachers' Retirement System about Mr. Brennan's request, stating that since Mr. Brennan was no longer a teacher and no longer a member of the Teachers' Retirement System, she had concerns about whether or not he could now purchase out-of-state service (Ex. 10).

12. On June 12, 2006, the Teachers' Retirement System wrote to the Stoneham Retirement Board stating that Mr. Brennan was not eligible to purchase his Connecticut teaching service. The letter contained Mr. Brennan's appeal rights and a copy was sent to him. The Stoneham Retirement Board received the letter on June 13, 2006 (Ex. 1).

13. Mr. Brennan received his copy of the decision of the Teachers' Retirement System on June 15, 2006 (testimony).

14. On June 30, 2006, Mr. Brennan filed his appeal. His appeal letter states that his mailing address had recently changed due to recent New Hampshire emergency response regulations (Ex. 2).

Conclusion and Order

Timeliness of Appeal.

General Laws, c. 32, § 16(4) provides that a person aggrieved by a decision of a retirement board may appeal "in writing within fifteen days of notification of such action or decision…" The Teachers' Retirement System raised the issue of timeliness of appeal since the letter of decision was apparently mailed on June 12, 2006 but the appeal was not filed until June 30, 2006. Mr. Brennan received his copy of the decision of the Teachers' Retirement System on June 15, 2006 and filed his appeal on June 30, 2006; his appeal is therefore timely.

Merits of the Appeal.

Mr. Brennan argued that he is entitled to purchase his Connecticut teaching service because 1) he is currently eligible under the provisions of G.L. c. 32, § 3(4) and/or 2) by completing the enrollment form for the Teachers' Retirement System on July 24, 1970 and listing his Connecticut teaching service, the Teachers' Retirement System was obligated to verify the prior service and determine its eligibility as creditable service under § 4(2)(d). There is no merit to either argument.

G.L.c. 32 § 3 (4) states in pertinent part:

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…may, before the date any retirement allowance becomes effective to 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…(emphasis added).

Mr. Brennan argued that since as a Kitchen Manager he supervises employees, he is entitled to purchase his out-of-state service under this provision. He noted that "supervisor" is used without qualification in contrast to the more narrow use with respect to employees of the Department of Education where qualifying supervisory positions are limited to "supervisors of teachers or of educational methods…" I decline to adopt the broad meaning to the word supervisor that Mr. Brennan urges. The fact that the word is contained in the clause, "as a principal, supervisor or president" connotes that it is being used as a job title. Mr. Brennan's job title is Kitchen Manager.
Mr. Brennan further argues that under various provisions of G.L. c. 32, § 4, he is now entitled to purchase his Connecticut service.

Section 4(2)(a) provides, in pertinent part:

Each person becoming a member of the system shall…file a detailed statement of any other service rendered by him as an employee prior to the date of his becoming a member for which he may claim credit as provided for in subdivisions (3) to (8) inclusive, of section three, or in paragraph (c) of this subdivision.

Mr. Brennan claims that by completing the enrollment form for the Teachers' Retirement System on July 24, 1970, the Teachers' Retirement System was then obligated to "verify as soon as practicable after the filing of any such statement of service, the service [Brennan] claimed, and [to] verify as creditable service all or such part of the service claimed as may be allowable under [the Board's] rules and regulations."

The problem with Mr. Brennan's argument is that he never claimed his Connecticut teaching service as prior creditable service while he was a member of the Teachers' Retirement System. Nothing required him to purchase the time. Section 3(4) is a benefit that allows certain members to purchase out-of-state service. As the back of the enrollment form states, "Service for which a member desires to establish credit must be verified on blanks furnished by the Retirement Board…" If Mr. Brennan had desired to purchase his Connecticut teaching service between 1970 and 1973, it was incumbent upon him to apply while a member of the Teachers' Retirement System.

Based on the foregoing, the decision of the Teachers' Retirement System denying Mr. Brennan's request to now purchase his Connecticut teaching service is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kimberly A. Fletcher
First Administrative Magistrate

DATED: 3/12/08


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