Decision  Milton, Wendy v. Massachusetts Teachers’ Retirement System (CR-16-513)

Date:	03/15/2019
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-16-513

• Petitioner: Wendy Milton
• Respondent: Massachusetts Teachers’ Retirement System
• Appearance for Petitioner: Quesiyah Ali, Esquire
• Appearance for Respondent: Cristina I. Keefe, Esquire
• Administrative Magistrate: Judithann Burke

Case Summary

The Petitioner has not met her burden of proving that, while she was engaged in teaching pupils during her service at the Mercy Centre in Worcester, MA, the tuition of all of her students was financed in full or in part by the Commonwealth of Massachusetts, as is mandated by G.L. c. 32, § 4(1)(p).   

Decision

Pursuant to G.L. c. 32 § 16(4), the Petitioner, Wendy Milton , is appealing from the October 19, 2016 decision of the Respondent, Massachusetts Teachers Retirement System (MTRS), denying her request to purchase her non-public school service at the Mercy Centre from September 1988 through June 1994.  (Petitioner Exhibit 2.) The Petitioner’s letter of appeal, dated November 13, 2016, was received on November 14, 2016.  In her letter of appeal, the Petitioner indicated that she had received the denial by the MTRS on October 31, 2016.  While it ordinarily would stretch credulity that a letter from the MTRS in Charlestown would not be received by the recipient in West Boylston until 12 days after the letter was generated, I am aware that the MTRS had moved and was adapting to its new location during October of 2016.  Thus, it is feasible that the letter of denial was not sent out until several days following the date upon which it was generated, and, that the Petitioner did not receive the letter until October 31, 2016.  I will render findings of fact regarding these circumstances, and, put the MTRS and CRAB on notice that the question of timeliness may be a dispositive issue depending upon any additional facts that may surface.  For the time being, I will take the Petitioner at her word and accept that she received the denial letter on October 31, 2016. Ergo, this is deemed to be a timely appeal.  (Petitioner Exhibit 3.)  I will render a Decision on the merits. 

I held a hearing on September 19, 2018 at the offices of the Division of Administrative Law Appeals, One Congress Street, Boston, MA.  The Petitioner testified in her own behalf.  The MTRS did not call any witnesses.  The hearing was digitally recorded.  The parties submitted pre-hearing and post-hearing memoranda of law.  (Petitioner-Attachment A and Petitioner’s Exhibits 1-4 and Attachment C; Respondent Attachment B and Respondent’s Exhibits 1-3 and Attachment D.)  The last of the post-hearing submissions was received on November 13, 2018, thereby closing the record.

FINDINGS OF FACT

1. The Petitioner, Wendy Milton, is currently employed in the West Boylston Public Schools as a Preschool Teacher.  (Attachment A, Petitioner’s Testimony and Petitioner’s Exhibit 1A.)
2. The Petitioner has been a member of the Massachusetts Teachers Retirement System (MTRS) since 1993.  (Attachment A.)
3. From September 1988 through June 1990, the Petitioner was employed as a full-time speech therapist for students in the Integrated Preschool Program at the Mercy Centre in Worcester, MA.  (Id., Petitioner Testimony and Exhibits 1A and 1B.)
4. The Mercy Centre was licensed by the Department of Elementary and Secondary Education (DESE) as a Chapter 766 private school that integrated special needs preschool students with students who were developing, as expected, in the classrooms.  Approximately 59% of the students were “regular education” students and approximately 41% of the students were special needs students.  (Attachment A and Petitioner Testimony.)
5. The preschool program at the Mercy Centre was housed in a multi-level building.   The program was located on the first floor, and featured three classrooms, a room for speech therapy, and access to the cafeteria and playground areas.  (Petitioner Testimony.)
6. The students who were assigned to the Petitioner were between the ages of 3 and 5. They had a variety of disabilities, including developmental delays, Down Syndrome, autism, cerebral palsy, and cognitive and motor issues.  (Petitioner Testimony.)
7. Tuition to the Mercy Centre was paid predominantly by the Commonwealth via the towns and cities sending students.  However, some of the tuition of the students was paid privately.  (Respondent Exhibit 1.)
8. The Petitioner taught approximately 12-15 students per year.  Her students were from various communities in Central Massachusetts.  The preschool program operated pursuant to the Worcester Public Schools’ calendar.  (Id. and Attachment A.)
9. The students attended the program from approximately 8:00 AM to approximately 2:45 PM.  The Petitioner’s actual work hours were 8:00 AM to 3:00 PM.  (Id.)
10. Each classroom featured a lead-teachers’ aide, and a speech therapist.  Occupational therapists and physical therapists also worked in the classroom intermittently. They divided their time between preschool and upper grades. (Id.)
11. The Petitioner was responsible for assessing students.   She taught them vocabulary development, linguistic concepts and comprehension in order for them to develop the communications skills and social skills necessary to access the curriculum.  In the classroom, the Petitioner taught communication skills, including facilitating story groups, asking and answering questions, identifying vocabulary, playing games that developed student vocabulary, and she led music groups.  (Id.)
12. The Petitioner had lunch, snack and recess duties with her students, similar to the teaching staff.  (Id.)
13. The Petitioner also held sessions in the speech therapy room every day.  In the speech therapy room, the Petitioner used materials in order to teach skills outlined in her students’ individualized education plans (IEPs), including working on voice modulation,  following directions, and linguistic concepts.  She wrote lesson plans for her work in the speech therapy room that targeted her students’ IEP goals and objectives.  She was responsible for the speech and language portion of her students’ IEPs, including summarizing their goals and objectives.  She wrote quarterly progress reports and drafted regular performance assessments.  (Id.)
14. The Petitioner did not receive a retirement allowance, annuity or pension for her service at the Mercy Centre.  (Id.)
15. On or about August 19, 2012, the Petitioner filed a creditable service buyback application in order to purchase her service at the Mercy Centre.  On her application to purchase her service at the Mercy Centre, the Petitioner indicated that the tuition of her students was “paid by towns, a few families paid privately ?” (sic) (Petitioner Exhibit 1b.)
16. In a separate section of the Petitioner’s application to purchase her service at the Mercy Centre, Heather MacDonald, the former Director of Program and Clinical Services and the former Administrator of the Mercy Center Pre-School and School Program from the period of the Petitioner’s tenure through the closing of the school in June 2014, indicated in the section entitled Student Profile and Funding that she did not know if all of the students taught by the applicant received at least partial tuition from the Commonwealth of Massachusetts or a Massachusetts public school district.  Further, MacDonald indicated that she did not know what percentage of the students paid private tuition.  “Unknown, varied?”  (Petitioner Testimony and Petitioner Exhibits 1d and 5.)
17. In an email transmission to Nastassia Villafane at MTRS dated August 18, 2016, the Petitioner indicated that she had spoken to Heather MacDonald, and identified her as the individual who “had signed off on my original paperwork.” The Petitioner indicated that she had learned from MacDonald that 10% of the students that were taught by the Petitioner had their tuition paid privately.  She added that 90% of the students received 100% of tuition from the Commonwealth, i.e., cities and towns that had sent them to the Mercy Centre.  (Petitioner Exhibit 5.)
18. On October 19, 2016, the MTRS generated a letter denying the Petitioner’s request to purchase her service at the Mercy Centre on the grounds that she could not satisfy the requirement of G.L. c. 32, § 4(1)(p) that all of her students’ tuition was funded in whole or in part by the Commonwealth of Massachusetts.  (Petitioner Exhibit 2.)
19. The Petitioner’s letter of appeal was dated November 13, 2016.  In the letter, she asseverated that she had received the MTRS denial letter on October 31, 2016.  The MTRS had re-located in or about October 2016.  (Petitioner Exhibit 3 and Administrative Notice.)
20. In a letter dated July 26, 2017, Heather MacDonald asseverated that there were never any private-pay special needs students in the Mercy Center Pre-School Program.  She added that she had incorrectly informed the MTRS that some of the Petitioner’s students were private pay students.  (Petitioner Exhibit 4.)

Conclusion

After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal.  She has not met her burden of proving that the tuition of all of the pupils she taught during her tenure at the Mercy Centre was financed in part of in full by the Commonwealth. 

G.L. c. 32, §4(1) (p) permits the purchase of up to ten (10) years of creditable service for:

Any member of a contributory retirement system who is engaged in a teaching position and holds a certificate issued by the department of

Education or is exempted from the requirement of certification and who was previously engaged teaching of pupils in any non-public school in the commonwealth, if the tuition of all such pupils taught was financed in part or full by the Commonwealth.  (Emphasis added.)

In this case, the Petitioner’s testimony, her proffered documents and the arguments of her counsel were all hyper-focused on the issue of whether she was engaged in “the teaching of pupils.”  She made out a good case for the proposition that she was engaged in the “teaching of pupils” during her time at the Mercy Centre and added myriad testimony and time to the record.    

However, when the accolades subside and the smoke clears, the issue of the funding of the Petitioner’s students during her time at the Mercy Centre remains unclear and unproven.  In her application, the Petitioner herself acknowledged that a small percentage of her students may have had their tuition paid privately.  This response was supported by the comments made by Heather MacDonald in the employer’s section of the application, i.e., that she actually did not know of all of the origins of the funding for the tuitions of the Petitioner’s students.   

Neither the Petitioner’s brief, her unsubstantiated , blanket assertion in her testimony, nor the after-the-fact letter from Heather MacDonald, several years after the Petitioner’s employment at the Mercy Centre, are afforded any weight.  The assertions of both the Petitioner and Ms. MacDonald are unsupported by any documentation, nor was an adequate explanation offered as to why their statements about student funding had changed.

In conclusion, while the Petitioner has demonstrated that she performed diligent and necessary work in teaching her pupils at the Mercy Center, she has failed to meet her burden of proving that the tuition of the pupils she taught was financed in part or full by the Commonwealth.  The decision of the MTRS, denying the Petitioner’s request to purchase her service at the Mercy Centre is affirmed. 

So ordered.

Division of Administrative Law Appeals,

BY:

 

Judithann Burke

Administrative Magistrate

 

DATED:  March 15, 2019