COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Beverly Tramontana,

Petitioner

v. CR-06-592

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Beverly A. Tramontana, pro se

155 George Washington Blvd.
Hull, MA 02045

Appearance for Respondent:

Aaron Morrison, 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, Beverly Tramontana, is appealing the August 21, 2006 decision of the Respondent, Teachers' Retirement System, not to include certain payments made to her by the Hull Public School System as regular compensation in the calculation of her superannuation retirement benefit (Exhibit 1) . The appeal was timely filed pursuant to G.L. c. 32 §16(4).

hearing pursuant to G.L. c. 7 §4H was held on May 15, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. Washington, Boston, MA.
Various documents were entered into evidence at the hearing (Exhibits 1 - 8). The Respondent's Pre-hearing Memorandum was marked as "A" for identification. The Petitioner testified in her 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, Beverly Tramontana, d.o.b. 4/10/41, commenced employment as a school nurse with the Hull Public School System in 1984 (testimony of the Petitioner).

2. She became a member of the Teachers' Retirement System at that time (testimony of the Petitioner).

3. The Petitioner's duties as a school nurse included eye and ear testing, performing physicals on children, and caring for sick children (testimony of the Petitioner).

4. In or about 2003, the Petitioner notified the Hull Public School System that she would be retiring at the end of the 2005-2006 school year (testimony of the Petitioner).

5. At the beginning of the 2005-2006 school year, the Petitioner and two other school nurses entered into contract negotiations with the Hull Public School System. Specifically, the nurses were seeking a 2% salary increase to bring them into parity with Hull Public School teachers (testimony of the Petitioner).

6. The Petitioner was the only one of the three nurses who had notified the Hull School System that she intended to retire at the end of the school year (testimony of the Petitioner).

7. During the course of those negotiations, the Hull School System informed the Petitioner that it would not increase her salary but that it would authorize additional payments to her that would be included as regular compensation in the calculation of her retirement benefit (testimony of the Petitioner).

8. On November 22, 2005, the Petitioner and one of the other nurses, Barbara Meschino, entered into a side agreement with the Hull Public Schools. The side agreement provided that if the Petitioner and Ms. Meschino were employed on a full-time basis by Hull as of December 2005, each would receive a "one-time payment" of $1,092.56 in addition to her regular longevity pay. It also provided that if they were employed on a full-time basis in December of 2006, they would receive, in addition to their regular longevity pay, another "one-time payment" of $1,197.87 (Exhibit 3).

9. On March 27, 2006, the Hull Public Schools entered into a second agreement with the Petitioner and Ms. Meschino. This second agreement stated that it "supersedes and clarifies the pervious (sic) side letter executed and nullifies the same" (Exhibit 4).

10. This second agreement provided that if the Petitioner and Ms. Meschino were employed on a full-time basis by Hull as of December 2005, each would receive a "one time payment" of $1, 092.56 in addition to her regular longevity pay (Exhibit 4).

11. The second agreement also provided a special provision for the Petitioner stating that "effective June 2006, Beverly Tramontana shall receive a one-time payment of $700.00." As to Barbara Meschino, the second agreement provides, as before that if she is "employed as a full-time nurse as of the first pay period in December 2006, she shall receive in addition to her longevity pay, a one-time payment of $1,197.87" (Exhibit 4).

12. The Petitioner applied for superannuation retirement on April 14, 2006. On Part 2 of the application, the Hull Public Schools referred to the $700 payment as a "one-time negotiation contract payment" and the $1,092.56 amount as "longevity (one-time payment)" (Exhibit 5).

13. Ms. Meschino did not retire and is still employed as a nurse by the Hull Public Schools (testimony of the Petitioner).

14. On August 21, 2006, the Teachers' Retirement System sent the Petitioner formal written notification that the one-time longevity payment of $1092.56 and the one-time payment of $700 were not considered to be regular compensation and as such, not included in the calculation of her superannuation retirement benefit (Exhibit 1).

CONCLUSION

G.L. c. 32 § 1 defines regular compensation as:

the salary, wages, or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority, not including, bonus, overtime, severance pay for any and all unused sick leave, early retirement incentives, or any other payments made as a result of giving notice of retirement… (emphasis supplied).

840 CMR 15.03(2)(f) provides that the term regular compensation shall not include any other payments made as a result of the member giving notice of retirement (emphasis supplied).

In the present case, it is not disputed that the Petitioner informed her employer in or about 2003 that she would be retiring at the end of the 2005-2006 school year. The two sums that were paid to the Petitioner during the 2005-2006 school year were specifically designated to enhance her salary as a result of her having given notice that she was retiring at the end of that school year.

The two amounts in question, $700 and $1,092.56, were paid to Ms. Tramontana in addition to the regular longevity payments that were paid to her pursuant to her employment contract with the Hull School Department. Although the Hull School Department labeled the payments as "longevity," the payments were in the nature of a bonus to a long-time employee as they were one-time, non-recurrent, ad hoc payments. See Boston Association of School Administrators & Supervisors v. Boston Retirement Board, 383 Mass. 336, 341 (1981). As such, these payments do not qualify as regular compensation in accordance with the provisions of G.L. c. 32 §1 and 840 CMR 15.03 (2)(f).

At the hearing, Ms. Tramontana testified that her union representative and a School Committee member offered her the two payments in question in lieu of a salary increase. At the same time, they informed her that the payments would increase her retirement benefit. She further testified that had she known that the payments would not be considered as regular compensation in the calculation of her superannuation retirement benefit, she would have pressed for a salary increase rather than accepting the payments in question.

But whatever the extra payments made to her were called, if they were made in contemplation of her retirement, they would not be considered regular compensation. For example, in the case of Edmund Barry v. Teachers' Retirement Board, CR-00-1115 (DALA dec. 9/7/01; no CRAB dec.), Mr. Barry received a one-time substantial increase in his salary designed to convince him to remain in his position for the rest of the school year. In Barry, supra, it was held that the 12.6% increase in the Petitioner's compensation was not regular compensation for retirement purposes as the District School Committee did not agree to pay him that increase until he wrote a letter of intent to retire in the middle of the school year. In the instant case, the payments to the Petitioner were negotiated in November of 2005 and February of 2006 based on the fact that she had given notice in 2003 that she would be retiring at the end of the 2005 - 2006 school year.

While I empathize with the Petitioner's situation, there is no statutory or case law establishing that the Teachers' Retirement Board has the authority to employ an equitable remedy in the face of specific statutory language to the contrary. See CRAB's Decision on Request for Reconsideration, Adolph Petrillo v. PERA, CR-92-731 (10/22/93).

For the foregoing reasons, I conclude that payments of $1,092.56 and $700.00 made to the Petitioner during the 2005-2006 school year were not regular compensation as they were given to her as a bonus as a result of her having given notice of her intent to retire at the end of June 2006. Accordingly, the decision of the Teachers' Retirement System declining to include these payments in the calculation of her superannuation retirement benefit is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 6/27/08


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