Weston v. Contributory Retirement Appeal Board

923 N.E.2d 110, 76 Mass. App. Ct. 475, 2010 Mass. App. LEXIS 331
CourtMassachusetts Appeals Court
DecidedMarch 18, 2010
DocketNo. 09-P-475
StatusPublished
Cited by3 cases

This text of 923 N.E.2d 110 (Weston v. Contributory Retirement Appeal Board) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weston v. Contributory Retirement Appeal Board, 923 N.E.2d 110, 76 Mass. App. Ct. 475, 2010 Mass. App. LEXIS 331 (Mass. Ct. App. 2010).

Opinion

Green, J.

After working for more than thirty years as a special education teacher at Bourne High School, the plaintiff sought, pursuant to G. L. c. 32, § 3(4), to purchase additional retirement credit for additional service, from December, 1972, to August, 1974, as a teacher in a “Daytime Development Center” (DDC) providing education for children with special needs in [476]*476Fairfax County, Virginia.2 The Massachusetts Retirement Board denied his request, an administrative magistrate in the Division of Administrative Law Appeals (DALA) upheld that decision, and the Contributory Retirement Appeal Board (CRAB) summarily affirmed. A judge of the Superior Court issued a judgment on the pleadings on Weston’s subsequent appeal under G. L. c. 30A, § 14, likewise affirming the denial. At issue is whether the fact that, during the time of his Virginia service, Weston was employed by the Fairfax County Department of Health rather than a “school committee or board of trustees” means that he was not a “teacher” within the meaning of G. L. c. 32, § 1, as appearing in St. 1957, c. 516, § 1, and therefore may not purchase additional retirement benefits for that period of employment. We conclude that the eligibility of his out-of-State service for retirement benefits is determined by the nature of the services he performed, and the nature of the institution in which he performed them, rather than the nature or structure of the governing body of the institution in which he taught (so long as the institution is under exclusive public control or supervision). We accordingly reverse the judgment.

Background. We summarize the facts, as found by the DALA administrative magistrate.3 Weston has been a special needs teacher at Bourne High School since the fall of 1974. Prior to teaching in Bourne, Weston was employed by the Department of Health for Fairfax County, Virginia, from December 20, 1972, to August 2, 1974. While employed by the Department of Health, Weston worked as a teacher in the DDC. The DDC offered a program to assist children with intellectual disabilities and/or severe handicaps with activities of daily living. By the early 1970s, the DDC provided not only training but education. Frequently, children attending the DDC could transfer to the public schools due to the progress they had made at the DDC.

Between 1972 and 1974, the position of the director of the DDC was redefined from a nurse to a certified teacher of special [477]*477education with a focus on child development. The director supervised all DDC employees and reported to the director of health, who, in turn, reported to the county executive.

The DDC consisted of nine classrooms, each with between five and ten students. It operated on the same calendar as the public schools of Fairfax County, on school days that began at 8:00 a.m. and continued until 3:00 p.m. It had a “PTA.” The DDC was open to the public and served children from throughout Fair-fax County. Children arrived at the DDC on county buses.

In December, 1972, Weston had a degree in psychology. He responded to an advertisement seeking a teacher of severely handicapped students and was interviewed for the position by the DDC principal and her assistant, who was an educational consultant. During his employment by the DDC, Weston had a class of nine students between the ages of nine and sixteen, four of whom were nonambulatory. He was assisted by a teacher’s aide. Weston developed lesson plans and taught social skills, reading, language arts, math, art, and physical education. He held regular parent-teacher conferences. Though he took professional development courses in 1973, he was not certified in special education. However, such certification was not required at the time.4

Discussion. Under G. L. c. 32, § 3(4),

“ ‘[a]ny member in service[5] . . . who is employed in a teaching position . . . in a school or college . . . who had rendered service in any other state for any previous period as a teacher ... in the public day schools or other day school under exclusive public control and supervision . . . may, before the date any retirement allowance becomes effective for him, pay into the annuity savings fund of the system ... an amount equal to that which would have been withheld as regular deductions from his regular compensation for such previous period . . . had such service been rendered in a public school of the common[478]*478wealth and had he been a member of the teachers’ retirement system during the period such service was rendered.”

Upon making such payment, the teacher receives the same credit toward retirement benefits for the period of out-of-State employment as he would have received had he been employed as a public school teacher for that period within the Commonwealth. Ibid.

In concluding that Weston’s Virginia service was ineligible for purchased retirement credit under § 3(4), the administrative magistrate relied principally on the fact that, though “Weston was clearly serving as a teacher while at DDC, he was employed by the Department of Health, not a school committee or board of trustees.” Consequently, she reasoned, he did not meet the definition of a “teacher” set forth in G. L. c. 32, § l.6,7

We previously have looked to the definition of “teacher” set forth in G. L. c. 32, § 1, to determine eligibility of out-of-State service to support a teacher’s request to purchase retirement benefits. See Mackay v. Contributory Retirement Appeal Bd., 56 Mass. App. Ct. 924, 925 (2002). In Mackay, we considered two employees with out-of-State service as a “school social worker” and a “school adjustment counselor,” respectively. Both sought to purchase retirement credit for their prior service but were denied because their out-of-State service occurred before the definition of “teacher” was amended to include those two occupations. In holding that both were eligible, we held that their eligibility for retirement benefits, or to purchase additional retirement credits, was determined by their status as a teacher on the date of the purchase request, and not on whether their out-of-[479]*479State service fell within the definition of a “teacher” at the time of the service. Id. at 926. As such, Mackay considered whether the expanded definition of teacher applied to periods of service that preceded adoption of the expanded definition, rather than the proper construction of the statutory definition itself.

The present case, by contrast, presents a question of the proper construction of the statutory definition. “We typically defer to GRAB’S expertise and accord ‘ “great weight” to [its] interpretation and application of the statutory provisions it is charged with administering.’ Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246, 257 n.10 (1996). But ‘[judicial deference to an agency’s action “is not a principle of abdication,” ’ DiNatale v. Contributory Retirement Appeal Bd., 39 Mass. App. Ct. 401, 404 n.2 (1995), quoting from Board of Educ. v. School Committee of Amesbury, 16 Mass. App. Ct. 508, 514 (1983), and ours is the power to determine pure questions of law.” Mackay, supra.

There are several problems with the construction adopted by the administrative magistrate.

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Bluebook (online)
923 N.E.2d 110, 76 Mass. App. Ct. 475, 2010 Mass. App. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weston-v-contributory-retirement-appeal-board-massappct-2010.