| Date: | 06/13/2025 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | CR-24-0530 |
Petitioner’s core duties did not include her work as a CPI Specialist. The stipend she received for that work in 2023-2024 does not qualify as regular compensation for additional services under 807 CMR 6.02(1)(a)1 because neither the CPI Specialist position nor its remuneration were set out in the applicable CBA. The Board’s decision is affirmed.
Introduction
On August 13, 2024, petitioner Diana Rossetti timely appealed under G.L. c. 32, § 16(4), the August 9, 2024, decision of the Massachusetts Teachers’ Retirement System (MTRS).[1] MTRS denied Ms. Rossetti’s request that it consider her Crisis Prevention Intervention Specialist stipend for the 2023-2024 school year as “regular compensation” when calculating her retirement benefit.
The Division of Administrative Appeals determined that this appeal could be resolved on written submissions pursuant to 801 CMR 1.01(10)(b), and the parties did not object. They submitted proposed evidence and their argument. I admit Exhibits 1-10, described in the petitioner’s memorandum[2] filed October 11, 2024, and Exhibits 15-23 and 25 identified in the respondent’s memorandum filed November 29, 2024.[3]
FINDINGS OF FACT
Based upon the evidence in the record and the reasonable inferences from it, I make the following findings of fact:
DISCUSSION
“Regular compensation” as defined by G.L. c. 32, § 1 is, for periods beginning on July 1, 2009, “wages” or “base salary or other base compensation.” G.L. c. 32, § 1. It excludes payment for overtime, commissions, bonuses, or indirect payments. Id. An exception allows teachers to include as regular compensation salary payable under the terms of the annual contract for additional services in a public day school. G.L. c. 32, § 1.
Core Duties
According to 840 CMR 15.03(3)(b), wages include pre-determined, non-discretionary payments paid by the employer to similarly situated employees. The Contributory Retirement Appeal Board (CRAB) has determined that for payments to constitute wages, they must be paid for performing a core responsibility of the position. Marletta v. Massachusetts Teachers’ Ret. Sys., No. CR-10-347 (Contributory Ret. App. Bd. Mar. 31, 2016). Ms. Rossetti’s wages included her base teacher salary and her stipend as Department Head.
In a recent decision, Fonseca v. Massachusetts Teachers’ Ret. Bd., No. CR-12-164 (Contributory Ret. App. Bd. Feb. 14, 2024), CRAB identified several important factors to distinguish between core duties and additional services. CRAB looked at whether the compensation the member received for the duties performed was pre-determined, non-discretionary, and given to similarly situated employees as required by 840 CMR 15.03(3)(b). The amount of time spent on the duties in question is another factor. Marletta, supra, at 3, 7. CRAB also considered the relationship between the duties in question and the remainder of the individual’s job responsibilities. Marletta, supra, at 7; Rafferty v. Massachusetts Teachers’ Ret. Sys., No. CR-14-391 (Div. Admin. Law App. Mar. 31, 2016). Finally, CRAB found that a core duty must be a required part of the job and cannot be discretionary. Fonseca, supra, at 4.
Ms. Rossetti’s “core duties” as Department Head were set out in her job description, which did not refer to her role as CPI Specialist. She did not receive a stipend for the CPI Specialist role for the first 15 years she performed it. The stipend’s amount remained the same in each of the five years she received it. It was predetermined in that the amount was established in the agreement at the beginning of each school year. The Plymouth Public Schools, however, could terminate the agreement for any “pertinent cause,” which suggests wide discretion. No evidence was offered about similarly situated employees or the amount of time Ms. Rossetti spent on any of her work responsibilities. Her roles as Department Head and as CPI Specialist were related in that both are concerned with promoting a safe and appropriate learning environment for young children with special needs.
The weight of the evidence leans toward a conclusion that Ms. Rossetti’s CPI Specialist role was not a core duty of her Department Head role. She was not paid the stipend for the entire time she held the position. When she did receive it, the Plymouth Public Schools had discretion to end the agreement. The posting for her replacement did not limit applicants to Department Heads.
Additional Services
807 CMR 6.02(1)(a)1-4 states:
The term regular compensation as defined by G.L. c. 32, §1 and further defined by 840 CMR 15.03 shall include: (a) Salary payable under the terms of an annual contract for additional services so long as: (1) The additional services are set forth in the annual contract; (2) The additional services are educational in nature; (3) The remuneration for these services is provided in the annual contract; (4) The additional services are performed during the school year.
807 CMR 6.02(1)(a)1-4. The pertinent collective bargaining agreement is the “annual contract.” 807 CMR 6.01.
In Kozloski v. Contributory Ret. App. Bd., 61 Mass. App. Ct. 783, 787-89 (2004), the court upheld CRAB’s decision that a stipend the plaintiff received for serving as a high school audio-visual coordinator did not qualify as regular compensation to be included as additional services in the computation of his retirement allowance where such additional services and compensation were not explicitly set forth in the collective bargaining agreement in effect for the plaintiff's unit as required by regulations of the MTRS.
The Court observed that “CRAB reasonably took the view that the decisive fact under the regulations was that the audio-visual coordinator position was not included [in the CBA], rather than the reason it was not included.” Id. at 788. In the more than 20 years since Kozloski was decided, CRAB has not altered its view. The reasons argued here for why the position and stipend amount for the CPI Specialist were omitted from the CBA are not relevant, the decisive fact is that they were omitted. A recent CRAB decision brings the point home:
In the year following Kozloski, the Appeals Court stated that “regardless of the circumstances . . . stipends not specifically contained within the written collective bargaining agreement could not be credited toward a teacher’s retirement allowance.” Duplessis v. Contributory Ret. App. Bd., 63 Mass. App. Ct. 1122, 1122 (2005) (Unpublished). DALA and CRAB have issued countless decisions, both before and after the Appeals Court’s affirmations in Kozloski and Duplessis, that are in holding with this notion.
Ward v. Massachusetts Teachers’ Ret. Bd., No. CR-15-150, at *4 n.23 (Contributory Ret. App. Bd. Apr. 16, 2025)(collecting cases). See Florio v. Massachusetts Teachers’ Ret. Sys., No. CR-18-509, at *7-8 (Contributory Ret. App. Bd. Mar. 26, 2025)(distinguishing Kozloski, and finding that where Mr. Florio’s CBA “explicitly set forth” his responsibility as advisor to the EMT Club and his compensation by assigning a specific rate of compensation for advising all clubs other than the ones for which the CBA set out specific compensation rates).
Ms. Rossetti’s core duties do not include her work as the CPI Specialist. The stipend she received for that work in 2023-2024 does not qualify as regular compensation for additional services under 807 CMR 6.02(1)(a)1 because neither the CPI Specialist position nor its remuneration were set out in the applicable CBA. The Board’s decision is therefore affirmed.
Division of Administrative Law Appeals
Bonney Cashin
Bonney Cashin
Administrative Magistrate
DATED: June 13, 2025
