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Margaret Patz filed a timely appeal under G. L. c. 32, s. 16 (4) of the April 2, 2007 decision of the State Board of Retirement ("Board") that the value of her parking space is not deemed to be regular compensation for purposes of computing her retirement allowance. (Exs. 1, 2) I held a hearing on April 22, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. I admitted documents into evidence. (Exs. 1 - 7) I marked the Board's pre-hearing memorandum "A" for identification. The Petitioner testified. There is one tape cassette of the hearing.
1. Margaret Patz, d.o.b. 6/22/1951, was employed by the Department of Employment and Training ("DET") from January 31, 1971 to November 30, 1998, and by the Criminal History Systems Board from December 1, 1998 to October 1, 2003 when she retired for superannuation under the Early Retirement Incentive Program ("ERIP"). (Testimony, Exs. 5, 6, 7)
2. Ms. Patz worked as a Computer Operator and then as Chief Computer Operator at DET. For two years she worked on flex hours. She worked days from 8 a.m. to 8 p.m. on Monday, Tuesday, and Wednesday for two months, and then she worked from 8 a.m. to 8 p.m. on Thursday, Friday and Saturday for two months. She then worked nights from 8 p.m. to 8 a.m. on Monday, Tuesday and Wednesday for two months, and then she worked from 8 p.m. to 8 a.m. on Thursday, Friday and Saturday for two months. (Testimony)
3. Ms. Patz was provided with a parking space underneath the Hurley Building on Staniford Street to be used when she worked at night. She was no longer entitled to the parking space when she stopped working as a Computer Operator. She was not paid any money for parking. (Testimony)
4. Ms. Patz worked at the Criminal History Systems Board as a Systems Analyst IV. She worked from 7 a.m. to 3:30 p.m., and she was on call. She sometimes had to go back to work at night. (Testimony)
5. Ms. Patz was allowed to park in a parking lot that required the use of a key pad to enter. Ms. Patz had 24 hour access to the parking lot because she sometimes was called back to work at night. She was not paid any money for parking. (Testimony)
6. By letter of February 8, 2007 Ms. Patz requested to have her retirement allowance recalculated to include the value of her parking. She made the request "on the court ruling Mr. Bulger was awarded." (Ex. 3)
7. The Board denied Ms. Patz's request by letter of April 2, 2007. (Ex. 1) Ms. Patz appealed. (Ex. 2)
The decision of the State Board of Retirement is affirmed. Margaret Patz is not entitled to have her retirement allowance recalculated to include as regular compensation the value of parking.
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. G. L. c. 32, s. 1 defines regular compensation as "salary, wages, or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority, not including bonus, overtime, severance pay for any and all unused sick leave, early retirement incentives, or any other payments made as a result of giving notice of retirement." Regular compensation is further defined in the Public Employee Retirement Administration Commission ("PERAC") regulations. 840 CMR 15.03 (1) (a) 2 provides that to be considered regular compensation, the payment must "be made as remuneration for services actually rendered." The Supreme Judicial Court has opined that the term regular compensation "refers to remuneration geared to work or services performed." Boston Assn. of Sch. Administrators and Supervisors v. Boston Retirement Board, 383 Mass. 336, 419 N.E.2d 277, 280 (1981).
The value of the Petitioner's parking space does not constitute regular compensation because the parking space was not provided to the Petitioner as remuneration for services actually rendered. The parking space was provided to the Petitioner as a benefit "that would enable the plaintiff to perform [her] job more effectively" by affording her a place to park at night. Kenneth C. Pelonzi, et al. v. Retirement Board of Beverly, et al., Docket No. SJC-10098, May 21, 2008. In Pelonzi, the Supreme Judicial Court held that the personal use of an automobile furnished by the City of Beverly to its Commissioner of Public Safety and Chief of the Fire Department does not qualify as regular compensation for purposes of calculating the plaintiff's retirement allowance. The SJC reasoned that the City "contemplated the automobile as a tool that would enable the plaintiff to perform his job more effectively. … We conclude that the automobile was not intended to compensate the plaintiff for his service to the city as commissioner, but rather given to him to use in connection with his professional duties …" Id. The SJC noted that "[e]mployers routinely supply employees with other noncash job related accessories and benefits (e.g., cellular telephones, personal computers, facsimile machines, parking spaces) to enable their employees to perform their jobs more efficiently …" (emphasis supplied) Id.
The SJC distinguished this case from the Bulger case in which the Court held that the monthly cash housing allowance paid to the plaintiff was remuneration for his services as the president of the University of Massachusetts. The Bulger case did not address the issue of a parking space. Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651, 856 N.E.2d 799 (2006).
The decision of the Board to exclude the value of the Petitioner's parking benefit from regular compensation for purposes of computing her retirement allowance is affirmed.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato
DATED: June 27, 2008