COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Stephen Rowell,

Petitioner

v. Docket No. CR-05-213

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Matthew D. Jones, Esq.

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

Appearance for Respondent:

Robert G. Fabino, Esq.

Teachers' Retirement Board
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G. L. c. 32, § 16(4), the Petitioner, Stephen Rowell, is appealing the March 10, 2005 decision of the Respondent, Teachers' Retirement System, denying his request to purchase for creditable service through G. L. c. 32, § 3(4), his employment out of state between 1974-1976. (Ex. 2) The appeal was timely filed. (Ex. 1) Pursuant to 801 CMR 1.01(10)(c), Mr. Rowell waived his right to a hearing, and the case has been submitted on documents and legal arguments filed by the parties. (Exs. 1 - 19. "A" & "B") The parties filed briefs. ("C" & "D") The record closed January 22, 2008.

EXHIBITS

Exhibit 1 - Letter of appeal.

Exhibit 2 - Letter of Decision of Teachers' Retirement System.

Exhibit 3 - Out-of-State Service Purchase Form Mr. Rowell filed.

Exhibit 4 - Affidavits of Mr. Rowell of 11/14/07 and 12/21/07.

Exhibit 5 - Job description for Rockport High/Middle School
Athletic Director.

Exhibit 6 - Job description for Rockport High School Dean.

Exhibit 7 - Letter of recommendation by Dr. Mottola of 5/15/79.

Exhibit 8 - Employment card on Mr. Rowell for his 1974-1976
Rhode Island employment.

Exhibit 9 - W-2 Form for Mr. Rowell for 1976 issued by State of
Rhode Island.

Exhibit 10 - Mr. Rowell's teacher certification from Rhode Island
Department of Education.

Exhibit 11 - Cover sheet of Mr. Rowell's submission from 1976 for his
masters of science degree from University of Rhode Island.

Exhibit 12 - Mr. Rowell's 6/22/06 letter to Mr. Bohan and Mr. Bohan's
7/6/06 response letter.

Exhibit 13 - 11/30/07 emails between Mr. Golembeske and Teachers'
Retirement System.

Exhibit 14 - 12/4/07 emails between Ms. Chorney and Teachers'
Retirement System.

Exhibit 15 - Affidavit of Joseph Cardin of 1/6/08.

Exhibit 16 - General Laws of Rhode Island Ch. 25, §11-25-16 & 25.

Exhibit 17 - Description of the Rhode Island Alternative Education
Program's Training Program from website.

Exhibit 18 - Affidavit of Richard Probert of 1/18/08.
Exhibit 19 - Description of educational and vocational services of the
Massachusetts Department of Youth Services from website.

FINDINGS OF FACT

1. Stephen Rowell, d.o.b. 5/2/51, is currently a member of the Teachers' Retirement System in his position as Dean of Students at Rockport High School and Director of Health, Physical Education and Athletics for the Rockport Public Schools. He has worked with membership in the Rockport Public Schools from July 1981. (Ex. 4)

2. As Director of Health, Physical Education and Athletics, Mr. Rowell's general responsibility "is to supervise and provide leadership in all areas of the athletic department by interpreting and implementing policies/procedures as dictated by the Rockport Public Schools through the superintendent, principal and school committee, the Cape Ann League, and the Massachusetts Interscholastic Athletic Association." He is "responsible for the general organization of the coaching staff, and for providing them with guidance in pursuit of all departmental goals and objectives." There are "34 separate high school programs in 11 different sports … approximately 265 athletic contests … annually … at the high school and 72 at the middle school." (Ex. 5)

3. As Dean of Students at Rockport High School Mr. Rowell works "closely with the Principal and Guidance Director to assure maximum student achievement and performance." He has to monitor "student attendance and behavior and compliance of students with existing rules and regulations." He answers "ultimately" to the Superintendent. Requirements he has to have for the job include "legal teaching certification in the Commonwealth of Massachusetts … experience as a successful teacher … Master's Degree preferred." (Ex. 6)

4. Mr. Rowell holds a teacher certification issued by Massachusetts Department of Education in Health and Physical Education. (Ex. 4)

5. From January 6, 1974 through August 28, 1976, Mr. Rowell was employed by the State of Rhode Island's Training School in the job of "Teacher Academic." He worked full-time. The school gave instruction to minors who were sent to the school through a court order as they were either awaiting trial or had been adjudicated juvenile delinquents. Students could only be released from the facility through a court order. (Exs. 1, 4, 7, 8, 9, 12 & 15)

6. At the time Mr. Rowell worked there the Rhode Island Training School (RITS) was within the Rhode Island Department of Social and Rehabilitation Services. RITS provided the juveniles in residence with educational and rehabilitative services. Their ages were from twelve to twenty-one years old. The students took courses during regular daytime public school hours. The students earned education credits at the school which were fully transferable to public schools. The school did not issue high school diplomas or GED certificates. The teachers at the school were employees of the State of Rhode Island. Social Security deductions were taken from their pay. Mr. Rowell taught health and physical education to students at the middle and high school levels. While in this job, Mr. Rowell received a Rhode Island Department of Education teacher certification, provisional, for health and physical education. He also oversaw the entire physical education program at RITS. (Exs. 1, 4, 9, 10, 12, 13, 14 & 15)

7. Under Rhode Island law the RITS students were defined as prisoners.
(Ex. 16)

8. The RITS education program is still functioning like it had been when Mr. Rowell was a teacher there. It is now within the Rhode Island Department of Children, Youth and Families as a juvenile corrections facility. The teachers continue to be state employees. The system continues to operate like a public school within a correctional facility. The teachers all continue to be required to hold Rhode Island Department of Education teacher certifications; and curriculum requirements for courses taught continue to be comparable to those taught in a public middle and high school in Rhode Island. (Exs. 13, 14, 15, 16 & 17)

9. The Massachusetts Department of Youth Services (DYS) has a similar education program for the court adjudicated juvenile delinquents residing in its facilities. This is operated through the DYS Education, Job Training and Employment Services Unit. Its education programs satisfy all the education policies and procedures public middle and high schools are held to. All its teachers hold required teacher certifications through the Massachusetts Department of Education. DYS education program teachers are members of the State Retirement System. They are not found by the Teachers' Retirement System to be eligible for membership. (Exs. 18 & 19)

10. Mr. Rowell received a masters degree from the University of Rhode Island in 1976. His work at RITS partially fulfilled some course requirements towards this degree because while he was there he developed a health curriculum. Mr. Rowell also developed athletic teams to compete with public school teams which helped the RITS juveniles "learn team work and sportsmanship." (Exs. 4, 7 & 11)

11. Mr. Rowell is not entitled to any pension or retirement allowance from the State of Rhode Island. He does have sufficient social security quarters now to qualify for social security retirement benefits. (Exs. 4 & 9)

12. Mr. Rowell sought to purchase out-of state creditable service under G. L. c. 32, § 3(4) for his work in Rhode Island between January 1974 and August 1976. He filed the appropriate form with the Teachers' Retirement System in 2004. (Ex. 3)

13. By letter of March 10, 2005, the Teachers' Retirement System denied Mr. Rowell's request. He was informed:

Unfortunately, your service in Rhode Island as a Teacher Academic is ineligible for purchase because it does not meet the criteria set forth in … Section 3(4). In order for a member to purchase service credit from outside of Massachusetts it must have been rendered "as a teacher, principal, supervisor or superintendent in the public day schools or other day school under exclusive public control and supervision …." (Ex. 2)

14. Mr. Rowell filed a timely appeal. (Ex. 1)

Conclusion

Mr. Rowell's request for creditable service under G. L. c. 32, § 3(4) must fail. This is because he has not satisfied the G. L. c. 32, § 1 definition of teacher, and he did not perform the prior service in a public day school as defined in Section 1. His prior service must satisfy these definitions. This was made clear in the case of Mackay and Manning v. Contributory Retirement Appeal Board (CRAB), 56 Mass. App. Ct. 924, 925 (2002) ("The definition of 'teacher' for purposes of s. 3(4), and all other provisions of c. 32, is contained in G. L. c. 32, s. 1."). In pertinent part, Section 3(4) reads:

Any member in service, … who is employed in a teaching position … 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, or other college under exclusive public control and supervision, or in a public academy, or who was employed in a state department of education as supervisor of teachers or of educational methods, 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 as regular deductions from his regular compensation for such previous period, …, as he may elect, had such service been rendered in a public school of the commonwealth and had he been a member of the teachers' retirement system during the period the service was rendered; … provided, that no credit shall be allowed and no payment shall be accepted for any service for which the member shall be entitled to receive a retirement allowance from any other state …. Upon the completion of such payments, such member shall receive the same credit for such period of his previous out-of-state service, or portion thereof elected, as would have been allowed if such service had been rendered by him in a public school of the commonwealth ….

The Section 1 definition of teacher reads in pertinent part as follows:

… any person who is employed by one or more school committees or boards of trustees … on a basis of not less than half-time service as a teacher … in any public school as defined in this section ….

Public day school is defined in Section 1 as follows:

… any day school conducted in the commonwealth under the superintendence of a duly elected school committee and also any day school conducted under the provisions of sections one to thirty-seven inclusive of chapter seventy-four.

The findings show that the teaching work Mr. Rowell performed in the RITS education program was similar to what a physical education teacher working in a Massachusetts public school would carry out, including having his RITS students play games with public school students. He even held Rhode Island Department of Education teacher certification in performing his teaching work. But the school was not run the way a local public school is run because it was a school within a state correctional facility for court-adjudicated juvenile delinquents. There is no evidence that the education program Mr. Rowell worked in was a state-required compulsory education program. The RITS student then and now gains academic credit that can go toward requirements for a high school diploma or for a GED certificate, but RITS did not and does not grant the diploma or GED certificate. No school committee or board of trustees of an educational institution is involved in the governance of the RITS school even if the academic program did and does now meet the Rhode Island Department of Education requirements for middle and high school academic programs.

Mr. Rowell's arguments focus on the similarities of the academic program at RITS and at a Rhode Island public school, and he contends that even if the RITS academic program would not satisfy the definition in G. L. c. 32, § 1 for a public day school, it does satisfy the requirements of Section 3(4) for being a public school or public academy "under exclusive public control and supervision." This argument is countered by the fact that the Teachers' Retirement System has not found eligible for membership the DYS teachers doing just what Mr. Rowell was doing with incarcerated juvenile delinquents. G. L. c. 119, § 58(c) obligates DYS to provide care, custody and training to the juvenile delinquents, but does not call for a compulsory public school education for each juvenile delinquent.

Case law does not support Mr. Rowell's arguments. In Weston v. Teachers' Retirement System, CR-05-33 (DALA, 9/6/06) (CRAB, 4/2/07), prior out-of-state service as an employee of a county health department teaching children with mental retardation and/or severe handicaps with activities of daily living, was not found to be service eligible for purchase through Section 3(4) even though Mr. Weston's work with the children frequently led to their transfer into public schools. He was not found to have been a Section 1 teacher, and was not found to have taught in a Section 1 public day school. In Jennings v. Teachers' Retirement System, CR-06-564 (DALA, 12/1/06) (No CRAB Dec.), prior service out-of-state as an teacher at a child development center under the auspices of a state agency for child development was not found to meet the definitions of teacher and public day school found in Section 1 to be service eligible for purchase through Section 3(4). The program was also found not to be a school but an ineligible day care center. In Anderson v. Teachers' Retirement System, CR-03-474 (DALA, 11/18/03) (CRAB, 8/19/04), a case involving the RetirementPlus law for teachers, service as an adult education instructor at the Worcester County House of Correction was found not to satisfy the Section 1 definition of teacher to permit Ms. Anderson to gain RetirementPlus benefits since she was not an employee of a school committee or board of trustees of an educational institution. CRAB noted that her reliance on the case of Bigwood v. CRAB, Worcester Superior Court C.A. # 99-2023B, Toomey, J., (1/5/01) was misplaced. That case addressed what can be a "teaching position" for Section 3(4) purposes. That phrase deals with the current job the member has to hold, and the Superior Court found it does not have to fit the definition of teacher in Section 1. In Bigwood, teaching in an education program for inmates in a correctional institution was found to be a "teaching position." In Varella v. CRAB and Teachers' Retirement System, 56 Mass. App. Ct. 384 (2002), a case about regular compensation, the Appeals Court found that stipends received by a teacher for his work as the co-director of an evening education program at the public school where he was teaching was not Section 1 teacher service because the work did not affect the educational experiences of students enrolled in the regular public school program.

I conclude in light of this case law that Mr. Rowell cannot prevail because his prior service does not satisfy the Section 1 definitions of teacher and public day schools; criteria he must satisfy to gain Section 3(4) creditable service. Mackay and Manning, 56 Mass. App. Ct. at 925. For these reasons, the decision of the Teachers' Retirement System is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate

DATED: April 14, 2008


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