Decision  Gibowicz v. MTRS, CR-26-0166

Date:	07/24/2026
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-26-0166

• Petitioner: Joseph Gibowicz
• Respondent: Massachusetts Teachers’ Retirement System
• Appearance for Petitioner: Joseph Gibowicz, pro se
• Appearance for Respondent: Ashley Freeman, Esq.
• Administrative Magistrate: Eric Tennen

Summary of Decision

The Massachusetts Teacher’s Retirement System properly concluded that the Petitioner, Joseph Gibowicz, is ineligible to purchase retirement credit for his service in a non-public school from 1994 through 1997. For each year, he had to show that the tuition of all pupils taught was financed, in whole or in part, by the Commonwealth and that he was not entitled to receive a retirement allowance, annuity, or pension from any other source. None of the three school years at issue satisfies both statutory requirements. 

Decision

The Petitioner, Joseph Gibowicz, timely appeals a decision by the Massachusetts Teachers’ Retirement System (MTRS) denying his request to purchase up to three years of creditable service in a non-public school from 1994 to 1997. During the pre-hearing process, DALA determined that the issue of which years of prior service could be purchased could be decided without a hearing and was capable of resolution on written submissions pursuant to 801 Code of Mass. Regs. § 1.01(10)(c). I now enter into evidence exhibits P1-P2 for the Petitioner and exhibits R1-R5 for the Respondent. 

FINDINGS OF FACT

1. From September 6, 1994 to August 31, 1997, Mr. Gibowicz was employed as a full-time Teacher at the New England Center for Children, a non-public Massachusetts school; he specialized in teaching children with autism. (Exs. P2 & R3.)  
2. From 1994 to 1997, the percentage of students taught who received at least partial tuition from the Commonwealth of Massachusetts, or from a Massachusetts public school district, varied: it was 92% during the 1994 to 1995 school year, 90% during the 1995 to 1996 school year, and 100% during the 1996 to 1997 school year. (Exs. P1 & R3.) 
3. For the 1994 to 1995 school year, it does not appear Mr. Gibowicz received any employer contributions towards a retirement plan. But his employer did contribute to his retirement plan for the 1995-1996 and 1996-1997 school years. (Exs. P2 & R3.) 
4. On March 3, 2025, Mr. Gibowicz applied to purchase prior teaching service at the New England Center for Children. (Exs. P2 & R3.)
5. On March 23, 2026, MTRS notified Mr. Gibowicz that his service was not eligible for purchase. Specifically, MTRS determined that (1) Mr. Gibowicz was not engaged in teaching pupils, (2) his students’ tuition was not funded by the Commonwealth, in whole or in part, and (3) he was employed in a position that provided retirement benefits.  (Ex. R2.)

DISCUSSION

Mr. Gibowicz contends that some of his service is eligible for purchase while MTRS argues that none of it is. G.L. c. 32, § 4(1)(p) allows educators in the Commonwealth to purchase public creditable service for years worked in a private setting. Among the requirements to make such a purchase are (1) that the tuition of all pupils taught during the period for which creditable service is sought must have been financed, in whole or in part, by the Commonwealth; and (2) that no credit shall be allowed and no payment shall be accepted for any service for which the member is entitled to receive a retirement allowance, annuity, or pension from any other source. These two statutory requirements operate independently. This means all the conditions must be met for each year in which Mr. Gibowicz seeks credit. 

Of the three school years Mr. Gibowicz seeks to purchase, in only one was the tuition of all his students paid in whole or in part by the Commonwealth: 1996-1997. That means the 1994-1995 and 1995-1996 school years do not satisfy a required element for the purchase of creditable service. Milton v. MTRS, CR-16-513, 2019 WL 1583073, at*4 (Div. Admin. Law App. Mar. 15, 2019). 

Looking then just at the 1996-1997 school year, even though 100% of students taught by Mr. Gibowicz received tuition assistance from the Commonwealth, Mr. Gibowicz’s employer contributed to a retirement plan for him. G.L. c. 32, § 4(1)(p) prohibits the purchase of retirement credit for any period of service for which the member is entitled to receive a retirement allowance, annuity, or pension from another source; this includes plans funded with employer contributions. Sullivan v. MTRS, CR-07-639, 2012 WL 13406337, at *3 (Contributory Ret. App. Bd. Nov. 16, 2012); 807 Code of Mass. Regs. § 19.04(2). Since Mr. Gibowicz was entitled to retirement benefits from the 1996-1997 school year from his prior employer, that service year is ineligible for purchase under the statute.

Accordingly, there is no single year in which all the requirements of § 4(1)(p) are met.

Conclusion

Mr. Gibowicz is not entitled to the purchase of creditable service for years worked at the New England Center for Children because he does not satisfy the statutory eligibility requirements under G. L. c. 32, § 4(1)(p). MTRS’s decision to deny Mr. Gibowicz’s request for creditable service is affirmed.

SO, ORDERED.

Division of Administrative Law Appeals

Eric Tennen
__________________________________
Eric Tennen
Administrative Magistrate

1. Another requirement is that the member was “engaged in teaching pupils.” G.L. c. 32, § 4(1)(p). The parties also dispute this point. But I need not address it since I find Mr. Gibowicz does not meet the other prerequisites and resolving it would involve finding facts not clearly developed in the paper record.