COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Manuel Goncalves,

Petitioner

v. Docket No. CR-06-463

Teachers' Retirement System,

Respondent


Appearance for Petitioner:

Manuel Goncalves, pro se

523 Sanford Road
Westport, MA 02790

Appearance for Respondent:

James O'Leary, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Manuel Goncalves filed a timely appeal under G. L. c. 32, s. 16 (4) of the June 27, 2006 decision of the Teachers' Retirement System to exclude from regular compensation for computing his retirement allowance the additional pay he received for working 14 extra days during the 2003-2004 school year. (Exs. 1, 2)

I held a hearing on March 6, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

I admitted documents into evidence. (Exs. 1 - 5) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified. There is one tape cassette of the hearing.
Exhibit 3 marked at hearing comprised several pages from the Administrator's Association contract. Post hearing, the Board submitted the entire contract which is now marked as Exhibit 3.

FINDINGS OF FACT

1. Manuel Goncalves, d.o.b. 4/25/1949, worked for the Fall River Public Schools from September 1, 1972 until he retired for superannuation effective July 1, 2006. (Testimony, Ex. 4, "B")

2. Mr. Goncalves work as a teacher from 1972 to 1987. He held the position of Equal Opportunity Educational Planner from 1987 until his retirement. (Testimony, "B")

3. In December 2003 Mr. Goncalves took on an additional position of Bilingual Director by agreement with the school Superintendent. Mr. Goncalves performed this second job by working extra time through the year, including after school and during the summer vacation. (Testimony)

4. Mr. Goncalves's pay for the job of Bilingual Director was determined by state and federal grants that provided money for "professional development." (Testimony)

5. Mr. Goncalves's agreement with the Superintendent was not reduced to writing. (Testimony)

6. Mr. Goncalves's salary and working days in his EOEP position was governed by the contract negotiated between the Fall River School Committee and the Fall River Administrators' Association ("Contract"). (Ex. 3)

7. The Contract provides that a work year for all Administrators shall be 185 days. The Contract further provides that Administrators on Level II, as Mr. Goncalves was, "will be available for work twenty (20) additional days beyond the 'work year.'" (Ex. 3, p. 23)

8. Mr. Goncalves's work year as provided for in the Contract is therefore 205 days. (185 + 20 = 205).

9. In school year 2003 - 2004, Mr. Goncalves worked 219 days. The extra 14 days were days he spent working during the summer in his second position of Bilingual Director. (Ex. 5, Testimony)

10. It is the 14 extra days that Mr. Goncalves spent on the duties of Bilingual Director during the summer of 2004 that the Board determined does not constitute regular compensation for purposes of calculating Mr. Goncalves's retirement allowance. (Ex. 1, Testimony) Mr. Goncalves appealed. (Ex. 2)

CONCLUSION AND ORDER

The decision of the Teachers' Retirement System is affirmed. The pay received by Manuel Goncalves for working 14 extra days during the summer of 2004 in the position of Bilingual Director does not constitute regular compensation and shall not be used in the calculation of his retirement allowance.

G. L. c. 32, s. 5 (2) (a) provides that a superannuation retirement allowance shall be "based on the average annual rate of regular compensation received by such member" during the member's last three years, or highest paid three years, of creditable service.
Regular compensation as defined in G. L. c. 32, s. 1 is "salary, wages or other compensation … lawfully determined for the individual service of an employee. In the case of a teacher employed in a public days school who is a member of the teachers' retirement system, salary payable under the terms of an annual contract for additional services in such school … shall be regarded as regular compensation …" (emphasis supplied)

Under the Board's regulation, 807 CMR 6.02, the term regular compensation includes "salary payable under the terms of an annual contract for additional services" so long as the additional services are set forth in the annual contract; the additional services are educational in nature; the remuneration for the services provided is set forth in the annual contract; and the additional services are performed during the school year.
Under 807 CMR 6.01, the annual contract, in the case of an Administrator, "is the individual employment agreement which governs the rights of the member whether it is a one year of multi-year agreement."

The Administrators' Contract governs the rights of the Petitioner in his position of EOEP. It does not set forth the additional services provided by the Petitioner as Bilingual Director, nor does it set forth his remuneration for those services. Although the services were educational in nature, some of the additional services were not performed during the school year.

The Petitioner performed these extra duties and received extra pay pursuant to an oral agreement made with the Superintendent. The additional services were therefore determined outside of the Contract and were not subject to bargaining. The remuneration the Petitioner received does not, therefore, meet the definition of regular compensation.

The decision of the Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Maria A. Imparato
Administrative Magistrate


DATED: 4/4/08


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