COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Kenneth Gavin,

Petitioner

v. CR-06-342

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Jane Davis, Esq.,

23 White's Path
Suite S
SouthYarmouth, Ma. 02664

Appearance for Respondent:

Robert Fabino, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, Ma.

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Kenneth Gavin, is appealing the May 24, 2006 decision of the Respondent, Teachers' Retirement System, declining to include the salary that he received for serving as an adjunct professor at Cape Cod Community College (CCCC) 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).

A hearing pursuant to G.L. c. 7 §4H was held on January 30, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. 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. The record was left open until February 14, 2008 for the submission of written closing arguments.

FINDINGS OF FACT

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

1. The Petitioner, Kenneth Gavin, d.o.b. 2/16/41, commenced employment with the Barnstable Public School system as a reading teacher in September of 1979 (testimony of Petitioner).

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

3. The Petitioner continuously taught in the Barnstable Public School System until his retirement in June of 2006 (Exhibits 3-5).

4. From September of 1987 up to and including the present date, the Petitioner has worked as a part-time Adjunct Professor at CCCC (testimony of the Petitioner).

5. The Petitioner has taught and continues to teach one three hour class each semester in writing, reading, and study skills. The class, which is held from 6:30 p.m. to 9:30 p.m. once a week, caters to current high school students, high school graduates, as well as those holding GED certificates (testimony of the Petitioner).

6. Occasionally, the Petitioner has taught during the summer semester; however, the majority of the time, he has taught only during the regular academic year (testimony of the Petitioner).

7. The Petitioner did not become a member of the State Retirement System during the course of his employment with CCCC as he did not meet the applicable membership eligibility requirements as outlined in 941 CMR 203 (Exhibit 9).

8. The Petitioner did not have retirement deductions taken from his compensation from CCCC; rather, he was required to purchase a 401(K) retirement account for his work at the college (testimony of the Petitioner).

9. In his application for superannuation retirement benefits with the Teachers' Retirement System, the Petitioner sought to have his earnings from CCCC included as regular compensation in the calculation of his retirement benefit (Exhibits 3 & 4).

10. On May 24, 2006, the Teachers' Retirement System sent the Petitioner formal notification that his request to have his earnings from CCCC included as regular compensation was denied (Exhibit 1).

11. The Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

The issue in this case is whether the Petitioner is entitled to have his earnings from CCCC included as regular compensation in the calculation of his superannuation retirement benefits. Unfortunately since the Petitioner was not a member of the State Retirement System or any other retirement system during the course of his employment at CCCC, his service at the College is not considered as dual membership pursuant to G.L. c. 32 §3 (7).

G.L. c. 32 §3 (7) provides in pertinent part:

Any person who is a member of two or more systems and who…receives regular compensation paid jointly by two or more governmental units, shall…be allowed creditable service…

In this case, the Petitioner was not a member of the State Retirement System as a result of his employment with CCCC since his service was below the threshold minimum 20 hours per week employment required for eligibility for membership in that system. Since he was not a member of the State Retirement System or any other public employee retirement system as a result of his employment at CCCC, the Petitioner cannot include his earnings from the college as regular compensation in the calculation of his superannuation retirement benefit with the Teachers' Retirement System.

The Petitioner notes that legislation currently pending before the Massachusetts Legislature would allow him to include his last three years of service at CCCC as regular compensation in his retirement benefit. If this legislation is enacted at some point in the future and addresses the issue of retroactivity of application, then the Petitioner may take appropriate action under the provisions of the new legislation. Unfortunately, however, there is no currently no provision in Chapter 32 that provides for the remedy that the Petitioner seeks.

In light of the foregoing, the decision of the Teachers' Retirement System is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 2/29/08


This information is provided by the Division of Administrative Law Appeals.