THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Robert V. McMullen,

Petitioner

v. Docket No. CR-08-36

Teachers Retirement System,

Respondent

Appearance for Petitioner:

Pro Se
38 School Street
Rehoboth, MA 02769

Appearance for Respondent:

James C. O'Leary, Esquire

Deputy General Counsel
Teachers Retirement System
One Charles Park
Cambridge, MA 02142-1206

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G.L. c 32 s. 16(4), the Petitioner, Robert V. McMullen, is appealing

from the January 9, 2008 decision of the Respondent, Teachers Retirement System

(TRS), denying his request to purchase non-public service from January 1975 through

March 1976. (Exhibit 1). The appeal was timely filed. (Exhibit 5). The Petitioner opted

to pursue his appeal without a hearing. (Exhibit 6). In lieu of a hearing at the Division of

Administrative Law Appeals (DALA), the parties submitted their respective cases on the

documents which have been marked as Exhibits 1-9. An Exhibit List has been provided

at page 4 of this Decision. The last of the submissions was received at DALA on

March 11, 2008, thereby closing the record.


FINDINGS OF FACT

Based upon the documents submitted in the above-entitled matter, I hereby render

the following findings of fact:

1. The Petitioner, Robert V. McMullen, is an active member of the Teachers'

Retirement System who intends to file for retirement in June 2008. (Exhibits 1 and 6).

2. From January 1975 through March 1976, the Petitioner was employed by

Helpmate, Inc. in the capacity of Youth Coordinator for the Town of Seekonk, MA.

(Exhibits 3, 5, 6 and 8).

3. Helpmate was a nonprofit community mental health agency funded by both

the Town of Seekonk and the Taunton Area Community Mental Health Program located

at Taunton State Hospital. The Petitioner's position was funded by a Division of Drug

Rehabilitation grant from the Commonwealth of Massachusetts Department of Mental

Health. The nonprofit corporation was established in the year 1971. The Certificate of

Incorporation was revoked on November 17, 1986. (Exhibits 3, 4, 8 and 9).

4. The Petitioner's wage and tax statements for the years 1975 and early 1976

reflect that Helpmate was his employer. (Exhibit 2).

5. The Petitioner first became a member of the TRS in October 1978.

6. In late 2007, the Petitioner requested to purchase his service as Youth

Coordinator in Seekonk in 1975 and 1976.

7. On January 9, 2008, the TRS denied the Petitioner's request. (Exhibit 1).

8. The Petitioner filed a timely appeal. (Exhibit 5).


CONCLUSION

The Petitioner is not entitled to prevail in this appeal. G.L. c. 32 s. 3(5) is

applicable to members of intra-state governmental units. The Petitioner's employer

from January 1975 through March 1976 was Helpmate, a private, non-profit corporation.

Notwithstanding the source of the grant, the Petitioner was an employee of a private

corporation. Helpmate's relationship to the Town of Seekonk was that of a private

contractor. This situation is in stark contrast to those cases where CETA workers and

other employees paid through grants have been allowed to purchase service. In those

cases, the governmental unit was the administrator of the grant. In this case, Helpmate

was the administrator of the grant under which the Petitioner was paid.

The TRS was correct in its decision letter that intra state service must have been

paid directly through a governmental body, not a private third party. The Petitioner

cannot avail himself of any provision of Section 3(5). The decision of the TRS is

affirmed.

So ordered.

Division of Administrative Law Appeals,

Judithann Burke
Administrative Magistrate

DATED: May 9, 2008

EXHIBIT LIST

Exhibit No. Document description

1 - Decision letter January 9, 2008
2 - 1975 and 1976 W-2 forms
3 - Nonconfidential statement December 24, 1976
4 - Helpmate incorporation
5 - Letter of Appeal January 14, 2008
6 - Letter waiving hearing February 2, 2008
7 - Letter from Administrative Magistrate to parties
February 7, 2008
8 - Letter from Philip Shea February 11, 2008
9 - 1975 and 1976 Seekonk Annual Reports


This information is provided by the Division of Administrative Law Appeals.