COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

William Davison,


Petitioner

v. Docket No. CR-06-458

Teachers' Retirement System,

Respondent

Appearance for Petitioner:

William A. Davison, pro se

365 Candlestick Road
North Andover, MA 01845

Appearance for Respondent:

Aaron Morrison, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

William Davison filed a timely appeal under G. L. c. 32, s. 16 (4) of the June 30, 2006 decision of the Teachers' Retirement System to exclude from regular compensation used to calculate his retirement allowance the pay that he received for working two extra days during the summers of 2003 through 2005 as a guidance counselor for the Town of Billerica Public School system. (Exs. 1, 2)

I held a hearing on March 5, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. I admitted documents into evidence. (Exs. 1 - 10) 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.

FINDINGS OF FACT

1. William Davison, d.o.b. 6/20/1945, worked as a guidance counselor for the Billerica Public Schools until he retired for superannuation under Retirement Plus effective July 1, 2006.

2. Mr. Davison's position as a guidance counselor was covered by the teachers' Collective Bargaining Agreement ("CBA"). The CBA in effect from 2000-2003, and the CBA in effect from 2003 - 2006 both provide: "Guidance Counselors may be called upon to work, when necessary, at a pro rata reimbursement for two (2) weeks of the summer recess." (Ex. 3)

3. Mr. Davison was called upon to work for twelve (12) days during each of the summers of 2003, 2004 and 2005. (Exs. 4, 5, 6, 7, 8)

4. Retirement deductions were taken from Mr. Davison's pay for the twelve extra days each summer. (Ex. 1)

5. The Superintendent of the Billerica Public Schools opined by letter of September 3, 2003 that the "intent was for the 'two weeks' to represent no more than fourteen work days of summer employment." (Ex. 10)

6. The Chairman of the Billerica School Committee opined by letter of June 15, 2006 that "[f]or the time period of this present contract the 2 weeks has been interpreted by the superintendent as (14) work days (2 weeks)." (Ex. 9)

7. The Board interprets two weeks to mean 10 working days and accordingly allowed Mr. Davison ten days of creditable service for his summer work in each of the summers of 2003 - 2005. Mr. Davison appealed the denial of the two additional days he worked each summer. (Exs. 1, 2)

CONCLUSION AND ORDER

The decision of the Teachers' Retirement System is affirmed. Only ten of the twelve extra days of work performed by the Petitioner during the summer of 2003 - 2005 are deemed to be regular compensation.

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 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 school … shall be regarded as regular compensation …" Under the Board's regulation, 807 CMR 6.01, the annual contract is the collective bargaining agreement for the unit which governs the right of the members. Under the terms of the CBA, Guidance Counselors may be called upon to work an extended work year by working up to "two weeks" of the summer recess. The Board viewed "two weeks" to mean two work weeks equaling ten days. The Superintendent and the Chairman of the School Committee indicate that "two weeks" mean fourteen days.

I conclude that according the term "two weeks" its ordinary meaning results in the conclusion that "two weeks" means two work weeks which means ten days.
The Petitioner is therefore entitled to have the salary he was paid for ten days of his extended work year deemed to be regular compensation because it is provided for in the CBA. The additional two days that the Petitioner worked each summer is not deemed to be regular compensation because it is not provided for in the CBA. Retirement deductions taken from the additional two days of the extended work year in each summer must be refunded to the Petitioner.

The decision of the Board is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 4/14/08


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