COMMONWEALTH OF MASSACHUSETTS


DIVISION OF ADMINISTRATIVE LAW APPEALS

January 8, 2010

Suffolk, ss.


JULIANNE KINSMAN,

Petitioner

v. Docket No. CR-07-470

STATE BOARD OF RETIREMENT,

Respondent


Appearance for Petitioner:

Susan Lee Weissinger, Esq.

Massachusetts Teachers Association
20 Ashburton Place
Boston, MA 02108

Appearance for Respondent:

Emily J. Robbins, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108

Administrative Magistrate:

Sarah H. Luick, Esq.


Summary of Decision

Petitioner, a current member of respondent retirement system with at least ten years of creditable service, seeks creditable service through G.L. c. 32, § 4(1)(s) for immediately prior non-membership part-time service as an instructor at the same community college where she now works full-time as a professor-instructor. She had been hired to work one-fourth the course load of a full-time instructor one semester at a time, and worked six consecutive semesters, 1980-1983. This is the equivalent of working three academic years as no work is done by full-time professors for more than two semesters a year. Respondent prorated her creditable service but erroneously used a twelve month calendar year and not the nine month academic year that pertained to her work. Case is remanded to make this correction to the calculation. Because this was non-membership prior service, she cannot receive three full years of creditable service.

Decision

Pursuant to G.L. c. 32, § 16(4), the petitioner, Julianne Kinsman, is appealing the June 11, 2007 decision of the respondent, State Board of Retirement, using a calendar year and not an academic year in prorating her part-time creditable service she is entitled to under G.L. c. 32, § 4(1)(s). (Ex. 2.) The appeal was timely filed. (Ex. 1.) A hearing was held November 10, 2009, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G.L. c. 7, § 4H.

Various documents are in evidence. (Exs. 1 - 9.) Both parties filed pre-hearing memoranda (Exs. A & B.) One tape was used. Petitioner testified and presented the testimony of Katie Durso, of the union organization, the Massachusetts Teachers Association's (MTA), who works with the instructors-professors in the Massachusetts community college system. Petitioner also presented the testimony of Sandra Fallon, manager at respondent board who determined petitioner's creditable service for her prior non-membership service. Both parties made arguments on the record.

Findings of Fact

1. Julianne Kinsman, d.o.b. 12/12/46 worked part-time, 1980-1983, at the Springfield Technology Community College (STCC) which is within the Massachusetts community college system. In this job she was not eligible for membership in any contributory retirement system. (Exs. A, B, 3, 5, 7 & 8. Testimony.)

2. Ms. Kinsman was hired to work a semester at a time as an instructor at STCC, teaching one-three credit course. She worked part-time in this job for six consecutive academic semesters. An academic year is a fall and a spring semester each year covering nine months, so Ms. Kinsman worked three consecutive academic years. A full-time faculty member at STCC at the same time worked two semesters a year teaching four-three credit courses each semester. A fall and spring semester is a full-time academic year for professors-instructors at all the Massachusetts community colleges. (Exs. A, B, 3, 5, 6, 7 & 8. Testimony.)

3. Ms. Kinsman was paid from an "03" state account other than for a brief time period during the 1981 spring semester when she was paid out of an "02" account. (Exs. A, B, 3, 5, 7 & 8. Testimony.)

4. During the 1980 fall semester from September 2 through December 23, 1980, Ms. Kinsman worked as a laboratory instructor in the radiation therapy technology department. During the 1981 spring semester from January 18 through April 25, 1981, she was paid as an instructor from an "03" account other than between February 1 and March 18, 1981 when she was paid as an emergency temporary employee out of an "02" account. (Exs. 3, 5, 7 & 8. Testimony.)

5. During the 1981 fall semester from September 8 through December 26, 1981, Ms.Kinsman was appointed a radiation therapy instructor. She held this same kind of instructor position during the 1982 spring semester from January 17 through May 15, 1982, during the 1982 fall semester from September 5 through December 25, 1982, and during the 1983 spring semester from January 16 through May 14, 1983. (Exs. 3, 5, 7 & 8. Testimony.)

6. Ms. Kinsman was appointed to the full-time position of staff assistant in the radiation therapy department with duties as a professor-instructor, starting with the 1983 fall semester and covering the full academic year. With this appointment, she became a STCC faculty member and a member of the State Retirement System. She became a member of the union and her employment has been subject to collective bargaining agreements since then. She continues as a full-time faculty member at STCC. (Exs. A, B, 4, 5, 6 & 7. Testimony.)

7. Ms. Kinsman sought to purchase for creditable service through G.L. c. 32, § 4(1)(s) her part-time prior non-membership service at STCC. On March 27, 2007, with full-time years of creditable service from the 1983-1984 academic year, she filed a Contract Service BuyBack form with the State Board of Retirement to purchase for creditable service her immediately preceding part-time instructor employment covering six separate but consecutive semesters over three academic years at STCC. (Exs. A, B, 5 & 7. Testimony.)

8. In connection with this request for creditable service, STCC informed the State Board of Retirement that between 1980 and 1983, Ms. Kinsman always worked within the two academic semesters each year that full-time faculty work to gain one year of creditable service. STCC informed the State Board of Retirement that each semester involved a separate appointment for Ms. Kinsman. STCC also informed the State Board of Retirement that Ms. Kinsman began full-time employment as a STCC faculty member starting with the 1983-1984 academic year listed as from July 19, 1983 through July 16, 1984. (Exs. 3, 4, 5, 6 & 7. (Testimony.)

9. The method used by the State Board of Retirement to determine the amount of creditable service Ms. Kinsman was entitled to receive involved use of a calendar year or a twelve month time period and not the nine month academic year of a full-time equivalent professor-instructor at STCC. This calculation provided her with four months and fourteen days of creditable service. (Exs. 8 & 9. Testimony.)

10. Ms. Kinsman had sought full-time creditable service for each of the six semesters she worked as a part-time instructor. The State Board of Retirement treated her work as a contract employee entitled to receive only the time she actually worked. Referencing G.L. c. 32, § 4(1)(s), the Board explained in its June 11, 2007 to her:

[E]ligible members of the State Retirement System who worked part-time as
contract employees shall be eligible for creditable service proportionately equal to their part-time service.

(Ex. 2.) Ms. Kinsman was provided with her appeal rights and she timely appealed this decision. (Exs. 1 & 2.)

11. The State Board of Retirement issued guidelines for members seeking creditable service through G.L. c, 32, § 4(1)(s). At number 3 and referenced also within number 4, the guidelines explain that the prior contract service that "immediately preceded" the membership service means it last occurred "within 180 calendar days" prior. At number 8, the guidelines make clear that part-time contract service will "be credited on a proportional basis." At number 9, the guidelines explain that the "cost to purchase contract service is the amount equal to that which would have been withheld as regular retirement deductions for the contract service as if the service had been rendered as a state employee, and the individual had been a member … plus buyback interest on that amount." No provision in the guidelines addresses specifically, a situation where academic years are involved in the prior contract service. (Ex. 9. Testimony.)

12. The State Board of Retirement has a rule on creditable service for prior part-time membership service performed prior to January 28, 1993 based on the ruling in Madden v. CRAB, 431 Mass. 697 (2000) that permits the member the option to receive full-time creditable service using the actual earnings received, or pro-rated creditable service using the full-time salary equivalent. (Ex. 9)


Conclusion

G.L. c. 32 s.4(1)(s), effective as of October 17, 2006, authorizes eligible members in-service of the State Retirement System to purchase up to four years of state contract service as creditable service if the prior service was contract service, if the prior service immediately preceded the establishment of membership in the State Retirement System, if the member already has ten years of creditable service with the State Retirement System, and if the job description for the prior service was substantially similar to the job description of the job that established membership. Ms. Kinsman circumstances satisfy these criteria.

Ms. Kinsman is not entitled to full-time creditable service for her prior part-time service at STCC because it was non-membership service. The State Board of Retirement's rule on part-time creditable service based on the case of Madden v. CRAB, 431 Mass. 697 (2000) is only available for prior part-time membership service performed prior to January 28, 1993. Ms. Kinsman was paid on a contract basis, semester by semester out of a state "03" account, and even for the brief time period she was paid out of an "02" account, that time period did not make her eligible for membership. Accordingly, that service was also non-membership service. She cannot use this pre-1993 part-time service rule to secure full-time creditable service.

In her arguments at the hearing concerning the calculation of her creditable service, Ms. Kinsman seeks to use an academic year of two semesters or nine months, and not a calendar year as used by the State Board of Retirement. This is correct. The findings demonstrate that a full-time faculty member at STCC, as is the case for a full-time faculty member at any of the Massachusetts community colleges, works only two semesters per year, fall and the spring semesters, to gain a full year of creditable service. While the Board does have substantial discretion adopting rules and regulations for determining the amount of creditable service to be allowed for part-time service (§ 4(2)(b)), no such rules have been adopted by the Board that are applicable to the Petitioner's case. The statutory requirement is that "[e]ligible members who worked part-time as contract employees shall be eligible for creditable service proportionately equal to their part-time service." G.L. c. 32, § 4(1)(s). Use of a twelve month calendar year is not appropriate for Ms. Kinsman's circumstances and is not required by either G.L. c. 32, § 4(1)(s), or by the State Board of Retirement guidelines interpreting Section 4(1)(s) as to part-time prior non-membership service. (See, Ex. 9.) While the Board's regulation relating to creditable service for prior part-time membership service is not applicable to Ms. Kinsman's situation, it is instructive. 941 CMR § 2.03(2)(b) provides that "[a]ny part-time employees eligible for membership in the State Retirement System who become full-time shall receive credit for their part-time service based on the number of hours worked in proportion to the regular hours of work of full-time employees (i.e. not less than 37.5 hours per workweek)." What this means is that under its part-time service regulation, the Board determines the appropriate amount of credit proportional to the time required for full-time credit of full-time employees. In Ms. Kinsman's case, the full-time equivalent is a 9-month year.

Ms. Kinsman is entitled to have her part-time service as an instructor for one-three credit course each semester performed over three consecutive academic years prorated against a full-time instructor's load during the same time period of four-three credit courses per semester. This means that she is entitled to ¼ of a year for three years, or ¾ of a calendar year or 9 months. Using this equivalent in the calculation is consistent with the State Board of Retirement guidelines on Section 4(1)(s) at number 9 discussing how the cost is determined for this purchase. It is because Ms. Kinsman was in the category of instructor that requires that the calculation of her creditable service employ nine months or two semesters as a full-time equivalent and not a calendar year.

At the hearing, Sandra Fallon of the State Board of Retirement explained why Ms. Kinsman's part-time service was prorated the way it was. She was treated as a contract employee for each of the specific time periods she was hired with no consideration of other than a calendar year. STCC reported her service with specific time periods. This was in contrast to the time period for a full-time faculty member at STCC which was set forth as covering a full calendar year as it was for Ms. Kinsman when she began this status, July 19, 1983 through July 16, 1984. But, a review of the evidence before the State Board of Retirement also showed that STCC provided information that a full-time professor-instructor, the full-time equivalent for Ms. Kinsman, worked only a fall and a spring semester, or a nine month time period. This information was not given consideration by the State Board of Retirement. 941 CMR 2.03, effective in 1993, states in pertinent part:

(3) Part-time employees shall receive credit for service based on the number of hours worked in proportion to a regular work week, i.e. - a person working 30 hours per week in an agency which has a regular work week of 40 hours, would
receive nine months service for each year employed.

Because STCC made it clear to the State Board of Retirement that a full-time year for professors-instructors at STCC is an academic year which is what Ms. Kinsman worked as a part-time instructor, I conclude the State Board of Retirement had sufficient evidence before it to use an academic year for calculating Ms. Kinsman's creditable service. This conclusion is bolstered by the conclusion that Ms. Kinsman was eligible to gain creditable service for her immediately preceding contract service because the job she did part-time was similar to the job she then did full-time into the present. That is one of the factors listed in Section 4(1)(s). The fact that Ms. Kinsman had no expectation that she would actually be able to work semester after semester the way she did does not prevent use of the academic year as a full-time equivalent in calculating her creditable service.

For these reasons, the case is remanded to respondent to recalculate Ms. Kinsman creditable service to grant her 9 months creditable service.

SO ORDERED.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

//s//
Sarah H. Luick, Esq.
Administrative Magistrate

DATED: January 8, 2010