COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Richard LaMothe,

Petitioner

v. Docket No. CR-06-619

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

Richard LaMothe

123 Estelle Drive
Naples, FL 34112

Appearance for Respondent:

Aaron Morrison, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

Richard LaMothe is appealing the September 26, 2006 decision of the Teachers' Retirement Board declining to include certain payments as regular compensation toward the calculation of his retirement allowance (Ex. 1). He appealed timely under the provisions of G.L. c. 32, § 16(4) (Ex. 2). I heard the appeal on April 9, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston.

There are seven documents in evidence (Exs. 1 - 7). I marked the pre-hearing memorandum of the Petitioner as "A" for identification and the pre-hearing memorandum of the Respondent as "B" for identification. Mr. LaMothe and Kyle Alves, Vice Principal of Somerset High School, testified. There is one tape of the hearing.

Findings of Fact

1. Richard LaMothe taught in the Somerset public schools from September 1972 until his retirement on June 30, 2006 (Ex. 3).

2. At the end of his career, Mr. LaMothe was the Content Coordinator for Language Arts and Reading and was responsible for staffing and maintaining the academic integrity of his department (LaMothe, testimony).

3. During school year 2004 - 2005, the senior advanced placement ("AP") teacher decided to take an extended maternity leave. She originally planned to return to her position in May 2005 (LaMothe, testimony).

4. The school system advertised but was not successful in finding an adequate replacement. The administration asked Mr. LaMothe if he would perform additional teaching duties relating to AP until the woman returned from maternity leave (Ex. 7 and LaMothe, testimony).

5. Mr. LaMothe agreed to take on the additional duties only after the Superintendent, the Business Manager, and the Human Resource Director assured him that the extra money he would be paid would be counted in the calculation of his retirement allowance (LaMothe, testimony).

6. Mr. LaMothe was planning to retire at the end of the 2005 - 2006 school year and it was important to him that the extra money be counted as regular compensation (LaMothe, testimony).

7. Mr. LaMothe was compensated at $50 per course; there were usually three courses per day although some days there were fewer. Originally, it was thought that Mr. LaMothe would be paid a total of $5,850.00. When the senior AP teacher decided to extend her maternity leave, it was necessary for Mr. LaMothe to continue teaching the extra classes through the end of the school year. He ended up receiving $8,560.60 (LaMothe and Alves, testimony).

8. Due to the additional responsibility and the critical need for qualified coverage, the Somerset school administration believed that the extra compensation would be considered regular compensation (Ex. 7).

9. The stipend that Mr. LaMothe received for performing the additional teaching duties was not included in the collective bargaining agreement ("CBA"). The CBA was never amended to reflect the additional payments (Ex. 4 and Alves, testimony).

10. On May 8, 2006, Mr. LaMothe filed his application for retirement with the Teachers' Retirement System. The figure of $8,560.60 was listed for Overload Teaching Assignment in the Salary Verification section (Ex. 3).

11. Three or four weeks after submitting his retirement papers, Mr. LaMothe was notified that the $8,560.60 would not be included as regular compensation (LaMothe, testimony).

12. On September 26, 2006, the Teachers' Retirement System notified Mr. LaMothe in writing that his request to include the stipend for overload teaching assignment would not be considered as regular compensation and he appealed (Exs. 1 and 2).

Conclusion and Order

The decision of the Teachers' Retirement Board determining that the payments Mr. LaMothe received for the overload teaching assignment is not regular compensation is affirmed.

A member's retirement allowance is "based on the average annual rate of regular compensation received by such member during any period of three consecutive years of creditable service…" G.L. c. 32, § 5(2)(a). "Regular compensation" is defined in G.L. c. 32, § 1 as:

salary, wages or other compensation in whatever form, lawfully etermined for the individual service of the employee by the mploying authority…In the case of a teacher employed in a public day school who is a member of the teachers' retirement system, salary payable under the terms of an annual contract for additional services in such a school…shall be regarded as regular compensation…

The regulations of the Teachers' Retirement Board define "annual contract" as the collective bargaining agreement. The regulations also "require that the additional service and the compensation therefore be explicitly set forth in the collective bargaining agreement." Henry Kozloski v. CRAB, 61 Mass. App. Ct. 783, 814 N.E. 2d 730 (2004), app. rev. denied 442 Mass. 1112, 816 N.E.2d 1222 (2004).

Unfortunately for Mr. LaMothe, neither the overload teaching position nor its compensation is explicitly set forth in the CBA. Furthermore, under the holding in Hallet v. CRAB, 431 Mass. 66 (2000), the per diem, per class pay that Mr. LaMothe received cannot be considered regular compensation. The Supreme Judicial Court held that hourly wages paid for additional duties performed by a teacher could not be considered regular compensation because hourly wages are not "salary" under G.L. c. 32, § 1 and 807 CMR 6.02(1)(b).

Mr. LaMothe argues that it is unfair not to have the extra payments included in his pension because he was told by the administration that they would be and because he could have performed other duties that were included in the CBA instead of the AP teaching. Although I may sympathize with Mr. LaMothe, neither I nor the Contributory Retirement Appeal Board has the authority to employ an equitable remedy in the face of specific statutory language contrary to the position fostered by the Petitioner. Adolph Petrillo v. PERAC, CR-92-731, CRAB's Decision on Request for Reconsideration, 10/22/93.

The decision of the Teachers' Retirement System is declining to include the additional payments as regular compensation is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kimberly A. Fletcher
First Administrative Magistrate

DATED: 4/30/08


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