Decision  Byrne, Lori v. Massachusetts Teachers’ Retirement System (CR-15-609)

Date:	02/22/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-15-609

• Petitioner: Lori Byrne
• Respondent: Massachusetts Teachers’ Retirement System
• Appearance for Petitioner: Daniel Fogarty, Esquire
• Appearance for Respondent: Cristina I. Keefe, Esquire
• Administrative Magistrate: Judithann Burke

Summary of Decision

The Petitioner, a special education teacher in the Hudson Public School system has failed to meet her burden of proving that the MTRS applied the retirement law incorrectly in applying the actuarial interest rate to her purchase of prior service in the  Maynard Public Schools from 1991-1997.  Further, she has not supported her claim of negligence/non-feasance by the MTRS.  Contra, Mildred Hembrow v. State Board of Retirement, CR-1229 (Division of Hearing Officers July 28, 1978).   There is no evidence that the Petitioner mailed two separate service purchase applications in March 2013, as she claimed and that the MTRS lost or mishandled one of them.   Rather, the evidence is that the MTRS received one service purchase application and informed the Petitioner that it received only that one application.  Her “re-application” in 2015 is therefore subject to the actuarial interest rate.

Decision

The Petitioner, Lori Byrne, is appealing from the October 28, 2015 decision of the Respondent, Massachusetts Teachers’ Retirement System (MTRS) denying her request to apply the buyback interest rate to her purchase of prior service in the Maynard Public Schools.  (Exhibits 7-8.)  The Petitioner’s timely appeal was received on November 5, 2015.    

            I held a hearing on February 28, 2017 at the offices of the Worcester Registry of Deeds, 90 Front Street, Worcester, MA.  I marked Exhibits 1-17.  The Petitioner testified in her own behalf.  The MTRS presented the testimony of Jonathan Osimo, the MTRS Assistant Director of Member Services and former Western Regional Director.  Each party filed pre-hearing and post-hearing memoranda of law.  (Petitioner-Attachments A and C; Respondent- Attachments B and D.)  The last of the submissions was received at DALA on May 1, 2017, thereby closing the record.  The hearing was digitally recorded.

                                                       FINDINGS OF FACT

1. The Petitioner, Lori Byrne, is an active member of the MTRS.  Her membership commenced on September 1, 1999.  (Petitioner Testimony.)
2. From September 3, 1982 through June 20, 1985, the Petitioner worked at Madonna Hall, a residential school for emotionally disturbed children in Marlborough, MA.  (Id. and Exhibit 1.)
3. From September 1991 through September 1999, the Petitioner worked in the Maynard Public School System (MPS) as a substitute teacher and paraprofessional.  (Petitioner Testimony and Exhibit 2.)
4. From September 1999 through September 2001, the Petitioner worked as a teacher for MPS.  (Petitioner Testimony.)
5. In September 2001, the Petitioner began working in the Hudson Public School System.  She continues in that employment today as a Special Education Teacher.  (Petitioner Testimony.)
6. In 2011, the Massachusetts General Court passed Chapter 176 of the Acts of 2011.  The Act amended G.L. c. 32, § 3(8)(b) to change the interest rate for creditable service purchases from the “buyback” interest rate of 4.125% to the “Actuarial Assumed Interest” rate of 8.25%.  (Administrative Notice.)
7. The November 2011 amendment to Section 3(8)(b) provided that if certain members wanted to preserve their right to certain kinds of service at the “buyback” rate of interest, they needed to purchase their prior service in a lump sum or enter into an installment agreement prior to April 2, 2013.  (Petitioner and Osimo Testimony.)
8. The Petitioner was aware of the change in the law and the April 2, 2013 application deadline.  She encouraged many of her co-workers to purchase their prior service before the deadline.  (Petitioner Testimony.)
9. The Petitioner testified that she enclosed both her application to purchase the non-public school service at Madonna Hall and her Maynard Public Schools service in the same envelope and sent them to the MTRS office in Cambridge, MA.  She did not send the envelope via certified mail and did not request a return receipt.  (Petitioner Testimony.)
10. On March 7, 2013, the MTRS Springfield Office received the Petitioner’s application to purchase the three years of nonpublic school teaching pursuant to G.L. c. 32, § 4(1)(p).  (Id., Osimo Testimony and Exhibits 1-3.)
11. Pursuant to their standard procedure, the MTRS staff stamped the Petitioner’s application as received, logged the application into the MTRS Blog, and generated an acknowledgement letter to the Petitioner on March 18, 2013.  (Id.)
12.  The March 18, 2013 letter acknowledged the service purchase request for the (4)(1)(p) service.  A single reference number was provided.  (Exhibit 3.)
13. When the Petitioner received the March 18, 2013 acknowledgement letter, she believed that it acknowledged the MTRS receipt of both the nonpublic (4)(1)(p) service at Madonna Hall and her service in the Maynard Public Schools (MPS).  She did not contact the MTRS to request clarification at that time.  (Petitioner Testimony.)
14.   The MTRS Blog was a computer system utilized by the MTRS to track creditable service purchase applications.  The MTRS staff members would input each service purchase application by date and type of service.   There is no 2013 entry pertaining to the Petitioner’s service in the Maynard Public Schools.  (Osimo Testimony and Exhibit 2.)
15. The Petitioner followed up with the MTRS on August 27, 2015 via facsimile and e-mail and inquired as to the status of her nonpublic school application.  At the same time, she inquired about an application wherein she requested to purchase her service as a paraprofessional in the MPS.  She indicated that she filed the MPS application at the same time as she filed her application to purchase the nonpublic school service.  (Petitioner Testimony and Exhibits 3 and 4.)
16. The MTRS informed the Petitioner that it had no record of having received an application from her for her MPS service.  (Exhibit 5.)
17. The Petitioner then e-mailed her Massachusetts, Substitute, Temporary or Part-Time Service application to the MTRS on August 27, 2015.  (Exhibits 5 and 7.)
18. Pursuant to their standard process, the MTRS stamped the Petitioner’s application as received on August 27, 2015 and sent her an acknowledgement letter on August 31, 2015 pertaining to her request to purchase the MPS service.  (Exhibit 7.)
19. On October 28, 2015, the MTRS informed the Petitioner that, because her Massachusetts Substitute, Temporary or Part-Time Service application was received after April 2, 2013, her invoice for this service would be calculated using the actuarial interest rate of 7.75%.  (Exhibit 12.)
20. The Petitioner filed a timely appeal on November 5, 2015.  (Exhibit 9.)

Conclusion

The Petitioner is not entitled to prevail in this appeal. The Petitioner has the burden of proving by a preponderance of the evidence that the MTRS has applied the law and or its regulations incorrectly or has been culpable in perpetrating a correctible administrative mistake.  She has proven neither.

            The Petitioner asks me to accept her narrative that she mailed both of her service purchase applications together in the same envelope and that the MTRS mishandled and lost her MPS application.  There is no evidentiary support in the record for this notion.  The Petitioner’s burden of proof cannot be made by my adopting one of many possible scenarios as the actual fact pattern; i.e. the application was miss-filed, the application was lost, the application was ignored and/or destroyed, or the mail carrier or another third party opened the envelope and removed the MPS application while it was in transit.  There is no credible choice among these scenarios and I cannot base my interpretation on a key piece of evidence on mere speculation and conjecture.  I must ultimately conclude that the application to purchase the MPS service did not arrive at the MTRS in March 2013 with the 4(1)(p) application for whatever reason.  The MTRS did not receive the MPS service purchase application and was unable to process it prior to April 2, 2013. 

            The Petitioner must bear the consequences of the failure to procure a return receipt for the original mailing(s) and for failing to follow-up when she received the March 2013 acknowledgment letter that only acknowledged one application.

            The MTRS duly notes that, while the Petitioner testified that she sent both applications in one envelope to the MTRS in Cambridge, her nonpublic application was received in the Western Regional Office in Springfield.  This discrepancy creates some doubt as to the clarity of her memory surrounding events concerning the mailing of her application(s).

            In conclusion, because the Petitioner missed the statutory deadline for submitting her application to purchase the MPS service and because the MTRS has no statutory authority to waive the statutorily impose actuarial interest charges, her MPS service must be calculated using the actuarial interest rate.  The decision of the MTRS is affirmed.

            So ordered.

            Division of Administrative Law Appeals

            BY:

            Judithann Burke

            Administrative Magistrate

 

DATED:  January 26, 2018