COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

William Mauger,

Petitioner

v. CR-04-1053

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Ira Fader, Esq.

Massachusetts Teachers Association
20 Ashburton Place
Boston, Ma. 02108

Appearance for Respondent:

Robert Fabino, Esq.

Massachusetts Teachers' Retirement System
One Charles Park
Cambridge, Ma. 02142

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, William Mauger, is appealing the November 28, 2004 decision of the Respondent, Teachers' Retirement System, denying his request to purchase creditable service for the period of time between September 1, 1980 through June 30, 1981 when he was on an educational leave of absence (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on November 15, 2007 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 -13). The Petitioner's Pre-hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" for identification. The Petitioner testified in his own behalf. One cassette tape recording was made of the hearing.

FINDINGS OF FACT

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

1. The Petitioner, William Mauger, d.o.b. 8/26/48, was certified as a teacher in Massachusetts in 1971 (testimony of the Petitioner).

2. For the period of January of 1971 through December of 1971, the Petitioner was employed as an elementary school teacher in Cohasset, Ma. He became a member of the Teachers' Retirement System at that time (testimony of the Petitioner, Exhibit 4).

3. In January of 1972, the Petitioner commenced employment as an elementary school teacher with the East Bridgewater Public School System (testimony of the Petitioner).

4. He remained as a teacher with the East Bridgewater Public School System from January of 1972 through June of 2004 (Exhibit 4, testimony of the Petitioner).

5. The Petitioner took an educational leave of absence during the 1980-1981 school year to pursue a degree in physical therapy (testimony of the Petitioner).

6. He was paid $5,538 during that leave, representing approximately one-third of his annual salary rate (stipulation of the parties).

7. It has been the long-standing policy of the Teachers' Retirement System to credit paid leaves of absence in accordance with the percentage of full-time salary received by the member during those absences (Exhibit 9).

8. The long-standing policy is included in writing in the retirement brochures that are routinely provided to all members of the Teachers' Retirement System at retirement seminars and upon request. The policy states that "if you are granted a leave of absence with partial compensation, you will receive partial service credit" (Exhibits10, 11, & 12).

9. On or about 2000, the Petitioner began to contemplate retirement. He telephoned the Teachers' Retirement System and received information from a client service representative to the effect that he would receive a full-year creditable service for his paid leave of absence during the 1980-1981 school year (testimony of the Petitioner).

10. The Petitioner asked that this information be reduced to writing. On October 23, 2000, TJ Leenders, a client service representative of the Teachers' Retirement System, sent the Petitioner a letter regarding his request for a breakdown of his creditable service. In this letter, Mr. Leenders estimated that the Petitioner had 28 years of creditable service for his service with East Bridgewater Public Schools for the period of September 1, 1972 through June 30, 2000. However, Mr. Leenders stressed that this breakdown is only an estimate and noted that "creditable service is not verified until your actual time of retirement" (Exhibit 7).

11. In 2001, the Petitioner had another conversation with a client representative from the Teachers' Retirement System concerning his creditable service. That representative also indicated that the Petitioner would receive full-time creditable service for his leave of absence (testimony of the Petitioner).

12. In 2002 or 2003, the Petitioner attended a retirement seminar conducted by the Teachers' Retirement System held in Wrentham, Ma. (testimony of the Petitioner).

13. On April 22, 2004, the Petitioner filed an application for retirement benefits with the Teachers' Retirement System with an effective retirement date of August 26, 2004 (Exhibit 4).

14. On November 18, 2004, the Petitioner received formal notification from the Teachers' Retirement System that he was credited with 0.3372 years of service for the period of time that he was on a leave of absence during the 1980-1981 school year as he was paid on a reduced income for that year (Exhibit 1).

15. On December 2, 2004, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

Based on the testimony and evidence provided, I conclude that the Petitioner should be credited with 0.3372 of the full year for the leave of absence that he took during the 1980-1981 school year.

The Teachers' Retirement System relies on its long-standing policy (included in writing in its retirement brochures) to pro-rate creditable service for leaves of absence based on the rate of salary paid. The Teachers' Retirement System refers to of G.L. c. 32 §4(1)(c) as justification for its policy concerning pro-ration of leaves of absence depending on the rate of annual salary paid.

G.L. c. 32 §4(1)(c) provides in pertinent part that:

Creditable service in the case of any member shall include any period of his continuous absence with full regular compensation, or in the event of his absence with partial regular compensation such period or portion thereof, if any, as the board shall determine (emphasis supplied).

Accordingly, the Teachers' Retirement System credited Mr. Mauger with partial creditable service for the year that he spent on leave of absence as he was paid approximately one-third of his annual salary during that period of time. The Petitioner argues that he relied on the representations of the counselors at the Teachers' Retirement System concerning his creditable service when he made the determination to retire in August of 2004 and that, had he known that his leave of absence time would be pro-rated, he would not have retired at that time. The Petitioner further argues that since he relied to his detriment on the representations of the Teachers' Retirement System, he should be afforded the equitable remedy outlined in the case of Hembrow v. State Board of Retirement CR-1229 (DALA dec.2/28/78; CRAB decision 1978) and successor cases.

In Hembrow, supra, the Petitioner, a social worker, told her supervisor that she wished to retire at the end of July 1974. Her supervisor then gave her the necessary forms to complete. Ms. Hembrow completed those forms and returned them to the supervisor. She stopped working at the end of July of 1974. Although many months went by without her receiving any retirement benefits, Ms. Hembrow did not realize that there was a problem as she believed that it was common for retirees to wait a substantial period of time before retirement benefits commenced. In March of 1975, Ms. Hembrow went to the Retirement Board and inquired why her application was taking so long to process. The Board informed her that it had not received her application and gave her a second application to complete. Ms. Hembrow completed this second application and the Board determined her effective date of retirement to be April 14, 1975, or 15 days from the date the Board had received her application. Ms. Hembrow appealed the effective date. In reversing the State Board determination as to the effective date, CRAB stated that Ms. Hembrow believed that she had done all that was required of her to initiate retirement benefits and that the State and the State Board of Retirement must assume responsibility for failures of the system such as this.

Notwithstanding her argument, the Petitioner cannot rely on the holding in the Hembrow case, supra, to argue that he should be entitled to full-time creditable service for his leave of absence during the 1980-1981 school year. Although the Petitioner testified that he had discussions with various employees of the Teachers' Retirement System concerning the amount of creditable service to be awarded for his leave of absence during the 1980-1981 school year, it is not clear from the record that the Petitioner explained to those employees that his salary for that year was pro-rated and that he received only one-third of his annual rate of compensation during that period of time. Thus, those employees of the Teachers' Retirement System with whom the Petitioner conversed may not have been supplied with all the information necessary to make a proper determination as to the amount of creditable to be awarded for his leave of absence.

Moreover, the Petitioner attended a retirement seminar sponsored by the Teachers' Retirement System sometime in either 2002 or 2003. Although he does not recall receiving any brochures concerning retirement benefits, these brochures printed by the Teachers' Retirement System for retirement seminars contain a provision stating that if a member is granted a leave of absence with partial compensation, that member will receive partial service credit.

Finally, in his letter of October 23, 2000 to the Petitioner, client services representative, TJ Leenders, stressed that he was supplying only an estimate of the creditable service based on the information that the Petitioner had supplied and that the amount would be verified at the time of retirement. There is nothing in the record that reflects that the Petitioner contacted the Teachers' Retirement System in April of 2004 to verify the amount of his credible service that he would be awarded for the period of time that he was on a leave of absence.

Based on the foregoing, the decision of the Respondent, Teachers' Retirement System, pro-rating the Petitioner's creditable service during the period of time that he was on a leave of absence during the 1980-1981 school year is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink
Administrative Magistrate

Dated: 12/31/07


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