COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Frank Kaminsky,

Petitioner

v. CR-07-390

State Board of Retirement,

Respondent


Appearance for Petitioner:

Frank Kaminsky, pro se

P.O. Box 176
Siasconset, MA 02564


Appearance for Respondent:

Crystal Chow, Esq.

State Board of Retirement
One Ashburton Place - Rm. 1219
Boston, MA 02116


Administrative Magistrate:

Joan Freiman Fink, Esq.


DECISION


Pursuant to G.L. c. 32 §16(4), the Petitioner, Frank Kaminsky, is appealing the May 2, 2007 decision of the Respondent, State Board of Retirement, denying his request to include pay for additional duties that he performed during the years 1988 through 1991 as regular compensation in the calculation of his superannuation retirement benefit (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

Pursuant to the provisions of 801 CMR 1.01 (10)(c), the parties agreed to submit the case on written submissions and to waive a hearing. On July14, 2008, the Petitioner submitted a written argument and proposed exhibits. On July 29, 2008, the Respondent submitted a written argument and proposed exhibits. The record was closed on July 29, 2008.

The following exhibits were marked into evidence:

1. 5/2/07 Decision Letter of Respondent

2. 5/12/07 Letter of Appeal

3. 6/6/08 Letter Requesting Submission on the Record

4. 1/25/07 Letter from Petitioner requesting additional service as regular compensation, with attached letter dated 12/2/05

5. 2/1/07 Letter from Respondent to Petitioner

6. 2/12/07 Petitioner's letter to Respondent plus attachments

7. 4/2/07 Petitioner's letter to Respondent

8. 7/17/91 Petitioner's Retirement Application with attachments

9. Respondent's print-out of Petitioner's yearly deductions from 1985 through 1991

10. Petitioner's W-2s for 1987-1991

11. 6/18/2008 Letter from Respondent to DALA concerning a waiver of hearing

FINDINGS OF FACT

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

1. The Petitioner, Frank Kaminsky, d.o.b. 5/16/36, was employed by the University of Massachusetts in Amherst, MA (UMass) from September 1965 through August of 1991 as a faculty member in the College of Engineering (Exhibit 8).

2. He was a member of the State Retirement System during the period of time that he was employed by UMass from 1965 through 1991 (Exhibit 8).

3. On July 17, 1991, the Petitioner filed an application for superannuation retirement benefits with an effective retirement date of August 31, 1991 (Exhibit 8).

4. In connection with the Petitioner's application for superannuation retirement benefits, UMass submitted a Salary Blank Form to the State Board of Retirement. This Salary Form does not indicate any additional teaching payments (Exhibit 8).

5. The Petitioner did in fact retire on August 31, 1991 (Exhibit 8).

6. On January 25, 2007, the Petitioner wrote the State Board of Retirement requesting a response to a previous attached letter dated December 2, 2005 (Exhibit 4).

7. In his letter of December 2, 2005, the Petitioner requested that he be permitted to include the additional compensation that he received for "research activities during the academic year and during the summer recess" as regular compensation in the calculation of his superannuation retirement benefit (Exhibit 4).

8. On February 1, 2007, the State Board of Retirement sent the Petitioner a request for further information concerning the extra compensation he referenced including any relevant documentation describing and confirming the reimbursements and/or payments he received (Exhibit 5).

9. On February 12, 2007, the Petitioner responded to the State Board of Retirement's request in writing stating that his nine-month academic salary for the period of 1988 through 1991 was approximately $64,000. He added that he received total compensation for each of those years ranging from $81,000 to $86,000, noting that the discrepancy consisted of extra compensation for "summer teaching, outreach teaching, research, and his contributions to extra work in a video tape instructional program…" (Exhibit 6).

10. Although the Petitioner submitted W-2 forms for 1987-1991, attached to his letter of February 12, 2007, these forms did not reflect the extra compensation referenced in the letter (Exhibit 6).

11. By letter dated May 2, 2007, the State Board of Retirement sent the Petitioner formal notification that his request to include additional payments as regular compensation in the calculation of his superannuation retirement benefit was denied. In this letter, the State Board of Retirement noted that it "based the decision in part on the fact that your request was made after your effective date of retirement and based on its interpretation of G.L. c. 32" (Exhibit 1).

12. On May 12, 2007, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

13. On June 9, 2008, the Respondent received a written request from the Petitioner to waive his right to a hearing and to have his appeal determined by written submissions (Exhibit 11).

CONCLUSION

Based on the evidence presented in this case, I conclude that the Petitioner is not entitled to have the additional teaching payments that he received during the years 1988 through 1991 included as regular compensation in the calculation of his superannuation retirement benefit.

In the first instance, the Petitioner failed to raise the issue of whether these additional teaching payments could be considered as regular compensation until fourteen and one-half years after the effective date of his retirement. In the case of Spence v. Reeder, 382 Mass. 398, 411 (1981), the Supreme Judicial Court held that a party may waive his/her rights merely by failing to assert them. Moreover, at the time Dr. Kaminsky filed his application for superannuation benefits in 1991, he did not submit any documentation verifying that these additional teaching payments actually existed. Rather, the Salary Blank Form submitted by UMass that accompanied the Petitioner's application did not include any additional teaching payments during the time period of 1988 through 1991.

Even assuming, for argument's sake, that Dr. Kaminsky raised the issue of the inclusion of these additional payments in a timely manner, the payments in question do not qualify as regular compensation as defined in statutory, regulatory, and case law.

Regular compensation is defined in G.L. c. 32 §1 as:

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 payment made as a result of giving notice of retirement... (emphasis supplied).

840 CMR 15.03(2) provides that:

Any extraordinary or ad hoc payment shall be excluded from regular compensation. Exclusions shall include, but not be limited to:

(a) amounts paid for hours worked beyond the member's normal work schedule.

Dr. Kaminsky described the additional payments he seeks to include as regular compensation as payments for summer teaching, outreach teaching, research, and contributions to extra work in a video tape instructional program. These payments do not fall within the scope of his regular duties as a Professor in the Engineering Department of UMass. Rather, these additional payments fall within the category of overtime pay, or pay that was given for work performed beyond his normal work schedule as a Professor. As such, these payments are specifically excluded from the definition of regular compensation by both G.L. c. 32 §1 and 840 CMR 15.03(2)(a).

In addition, the Petitioner did not submit any documentation to demonstrate that his additional teaching responsibilities, i.e., the summer teaching, outreach teaching, research, or video instruction program, were specifically mentioned in his employment contract with UMass. In addition, UMass, in response to an inquiry from the State Board of Retirement in 1991 concerning Mr. Kaminsky's employment relative to his application for retirement benefits, did not submit any employment contracts. In Henry Kozloski v. Contributory Retirement Appeal Board, 61 Mass. App. Ct. 783, App. Rev. denied, 442 Mass. 1112 (2004), the Massachusetts Appeals Court held that it is necessary to review the annual contract covering the individual's employment to determine whether an additional payment made to the employee is specifically included. In Kozloski, supra, the Petitioner's annual stipend for serving as audio-visual coordinator was not included in the collective bargaining agreement, the annual contract covering Mr. Kozloski's employment as a high school science teacher. The Appeals Court held that: "Whether the omission was inadvertent or not, the position of audio-visual coordinator was simply not included in the relevant collective bargaining agreement under which Kozloski worked for the three-year period that was the basis for his pension calculation." The Court further held that, "to be eligible for inclusion in the pension calculation, the additional service stipend must have been provided for in the collective bargaining agreement."

The Petitioner further argues that the additional payments in question constitute regular compensation as they were ordinary, regular, and recurrent. In the case of Boston Association of School Administrators and Superintendents v. Boston Retirement Board, 419 N.E. 2d 277, 383 Mass. 336, 341 (1981), the Supreme Judicial Court held that " 'regular' as it modifies 'compensation,' imports the idea of ordinariness or normality as well as the idea of recurrence."

Notwithstanding the Petitioner's assertion, he failed to produce any documentation to support his claim that the additional payments he received for performing the extra work were regular or repeated payments, not otherwise awarded as overtime or ad hoc payments.

In light of the foregoing, I conclude that the Petitioner has failed to meet his burden of proof to demonstrate that the additional payments that he received during the years 1988 through 1991 constituted regular compensation as defined by G.L. c. 32 §1, 840 CMR 15.03(2)(a) or case law.

Accordingly, the decision of the State Board of Retirement denying the Petitioner's request to have the additional payments that he received during the years 1988 through 1991 included as regular compensation in the calculation of his superannuation retirement benefit is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Joan Freiman Fink

Administrative Magistrate

Dated: 3/13/09

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