The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cathy E. Robertson, :
Petitioner :
:
v. : No. 2156 C.D. 2015
: Argued: November 15, 2016
Pennsylvania Public School Employees’ :
Retirement System, and Greater :
Johnstown Career and Technology :
Center, :
Respondents :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY JUDGE HEARTHWAY FILED: May 18, 2017
Cathy E. Robertson (Claimant) petitions this Court for review of the
Public School Employees’ Retirement Board’s (Board) October 6, 2015 order that
found Claimant had not terminated her school service on January 30, 2009, and her
service beginning February 4, 2009 was as a school employee, not as an independent
contractor. Consequently, the Board determined that Claimant was not entitled to
collect retirement benefits beginning on January 31, 2009. We affirm.
Claimant began working for the Greater Johnstown Career and
Technology Center (Center) in July 1970. On November 7, 2008, Claimant
submitted an Application for Retirement to the Public School Employees’ Retirement
System (PSERS). At that time, Claimant served as the business manager for the
Center, working full-time for approximately $39 per hour. She identified her
anticipated retirement date as January 30, 2009.
After submitting her retirement application to PSERS, Claimant notified
the Center of her plan to retire. In response, the Center reorganized, eliminating
Claimant’s business manager position and a senior bookkeeper position held by
Melissa McCall. A new position, titled administrative assistant of fiscal operations,
was created and filled by McCall. McCall’s job responsibilities entailed performing
her previous duties as senior bookkeeper in addition to assuming many of Claimant’s
former duties as business manager.
The Center also made multiple attempts to convince Claimant not to
retire, or alternatively, to provide services to the Center in the form of advising and
assisting McCall as an independent contractor. Claimant agreed to provide services
to the Center and on December 11, 2008, entered into a contract with the Center,
effective February 4, 2009. The Center did not advertise or search for any other
candidates to fill this role.
Claimant provided services to the Center under the contract from
February 4, 2009 through November 1, 2013. During that time, Claimant was also
collecting retirement benefits.1 PSERS had no knowledge that Claimant had
continued to work for the Center until it received a letter from the Center, dated
October 2, 2013, stating that the Pennsylvania Auditor General’s Office found that
the Center failed to request PSERS’ approval to employ Claimant while she received
a monthly annuity from PSERS.2 The Center then requested that PSERS
1
By letter dated April 22, 2010, PSERS informed Claimant of her finalized retirement
monthly benefit of $4,761.80 based on a termination date of January 31, 2009, 35.24 years of
credited service and a final average salary of $77,850.82.
2
The Auditor General periodically advises PSERS of audit results he believes may be
connected to a related issue and/or the distribution of an annuity.
2
retroactively approve Claimant’s employment as an independent contractor, effective
February 4, 2009.
PSERS denied the Center’s request to deem Claimant an independent
contractor beginning February 4, 2009 because Claimant did not have a bona fide
break in service, but rather maintained a continuation of active employment,
performing services which were substantially similar to the duties she performed as
business manager. In a letter dated November 1, 2013, PSERS notified Claimant that
it rescinded her January 30, 2009 retirement because her subsequent work for the
Center constituted a continuation of active employment.3
Claimant appealed PSERS’ retirement rescission determination to the
PSERS’ Executive Staff Review Committee (ESRC). By letter dated May 29, 2014,
PSERS notified Claimant that the ESRC denied Claimant’s request to be considered
an independent contractor for the services she rendered to the Center beginning
February 4, 2009 based upon its finding that Claimant made a prearranged agreement
with the Center to perform similar duties, which constituted a continuation of
employment rather than a bona fide break in service. The ESRC also determined that
under the totality of the circumstances, Claimant did not serve as an independent
contractor, and therefore, continued to serve the Center as a school employee.
3
By letter dated December 20, 2013, PSERS notified Claimant of her finalized retirement
monthly benefit of $3,525.38 based on an effective retirement date of November 1, 2013, 39.53
years of credited service and a final average salary of $74,823.34. The new monthly benefit amount
reflected an actuarial adjustment to reimburse PSERS for premature benefit payments to Claimant
from January 31, 2009 to November 1, 2013 totaling $388,001.23.
3
Claimant appealed the ESRC’s determination to the Board and requested
an administrative hearing.4 On February 25, 2014, an administrative hearing was
held before a hearing officer, who filed an opinion on July 14, 2015, recommending
that Claimant’s appeal be denied. Claimant and the Center filed exceptions to the
hearing officer’s opinion and recommendation. On October 7, 2015, the Board
rejected the exceptions and largely adopted the hearing officer’s opinion and
recommendation. Claimant appealed to this Court.5
Claimant challenges the Board’s determination that she did not
experience a termination of service between January 30, 2009 when her employment
as business manager for the Center concluded, and February 4, 2009, when her
employment under contract with the Center commenced. Claimant argues that she
effectuated a termination of service through a formal transition from an employee to
an independent contractor. Claimant also claims the Board erred by applying a
presumption that a break in service of less than 90 days is insufficient to constitute a
valid termination of service and that her due process rights were violated when her
pension benefits were suspended on or about October 31, 2013, without advance
notice.
We will examine first Claimant’s argument that she terminated her
service as a school employee on January 30, 2009. Section 8307(a) of the Public
4
The Center filed a petition to intervene which the Board granted on November 5, 2014.
The Center filed a brief with this Court.
5
“Our scope of review on an appeal from a final adjudication of an administrative board is
limited to a determination of whether there has been an error of law, whether there has been a
violation of constitutional rights, or whether the necessary findings of fact are supported by
substantial evidence.” Hairston-Brown v. Public School Employees’ Retirement Board, 78 A.3d
720, 725 n.1 (Pa. Cmwlth. 2013) (quoting Hoerner v. Public School Employees’ Retirement Board,
684 A.2d 112, 116 (Pa. 1996)).
4
School Employees’ Retirement Code (Retirement Code) provides that “[a]n active or
an inactive member who attains superannuation age[6] shall be entitled to receive a
superannuation annuity upon termination of service and filing of a proper
application.” 24 Pa.C.S. § 8307(a) (emphasis added). Section 8346(a) of the
Retirement Code further provides that if, after a termination of service, "an annuitant
returns to school service. . . , any annuity payable to him under this part shall cease
effective upon the date of his return to school service. . . ." 24 Pa.C.S. § 8346(a).
“School service” is defined as services rendered by a school employee,7 and the
definition of a "school employee" specifically excludes independent contractors.8
Our examination thus begins with whether the Board's determination that
Claimant had not terminated her service is supported by substantial evidence.
“Termination of service” is not defined in the Retirement Code, but the meaning of
the phrase was addressed in Baillie v. Public School Employees’ Retirement Board,
993 A.2d 944 (Pa. Cmwlth. 2010). In Baillie, a claimant was appointed as executive
director of the Chester County Intermediate Unit in 1982. In September 2006, the
claimant informed the Intermediate Unit that he intended to retire in January 2007.
However, he agreed to work under an emergency contract9 until the end of the school
year. The claimant purportedly retired on January 5, 2007; he returned to work under
contract on January 8, 2007. In determining that the claimant in Baillie never
experienced a termination of service, this Court explained:
6
Superannuation age is normal retirement age. See 24 Pa.C.S. § 8102.
7
24 Pa.C.S. § 8102.
8
A “school employee” is “[a]ny person engaged in work relating to a public school for any
governmental entity and for which work he is receiving regular enumeration as an officer,
administrator or employee excluding, however, any independent contractor or a person
compensated on a fee basis.” 24 Pa.C.S. § 8102.
9
Section 8346(b) carves out an exception to that general rule, under which an annuitant may
return temporarily to service and continue to collect retirement benefits in a time of emergency. 24
Pa.C.S. § 8346(b).
5
The Retirement Code states that a member of the retirement
system is entitled to receive an annuity “upon termination
of service.” 24 Pa.C.S. § 8307(a). Although not
precedential, the holding in Estate of Frank B. Fry v.
Commissioner of Internal Revenue, 19 T.C. 461 (T.C.
1952), aff’d, 205 F.2d 517 (3d Cir. 1953), is instructive on
what is meant by termination of service. In that case, the
decedent, who continued to consult for his former employer
and draw a salary for these services after taking his lump
sum retirement benefit, was found not to have “severed his
connection with his employer.” Id. at 464. Accordingly,
his salary was taxable as ordinary income, not capital gain.
Likewise, Baillie never severed his connection with the
Intermediate Unit. Baillie finished his work week on Friday
and returned on Monday, the next business day. This is not
a separation; rather, Baillie continued to work without any
interruption. Accordingly, Baillie did not become an
annuitant in January 2007 and, thus, was not eligible for an
emergency hire.
We hold that PSERS’ construction and application of the
Retirement Code to Baillie’s retirement were correct.
Baillie never separated from service, and he was not an
annuitant when hired on an emergency basis.
Id. at 951.
Fry involved a tax dispute over whether a “retiree” had genuinely
separated from service to his employer. Fry received his retirement pension from his
employer's private trust but continued to receive his regular salary and perform some
work for his employer. Id. at 462. The court acknowledged that Fry performed less
and less work for his employer as time passed; “however, the probative value of these
facts had been weakened, if not displaced altogether, by the fact that [Fry] continued
to draw his regular salary. . . from [his employer].” Id. at 464. The court held that
Fry had not actually retired or separated from the service of his employer.
6
The significance of the requirement that an annuitant must first
experience a bona fide break or termination of service before distribution of an
annuity is well established. PSERS, as a tax-qualified plan under 26 U.S.C. § 401(a),
must ensure that a distribution is not only consistent with the terms of the Retirement
Code, but also complies with the Internal Revenue Code.10
Section 8521(e) of the Retirement Code provides that PSERS
and its Board “stand in a fiduciary relationship to the members
of the system regarding the investments and disbursements of
any of the moneys of the fund.” 24 Pa.C.S. § 8521(e). PSERS
is responsible for the “uniform administration” of the public
school employees' retirement system. 24 Pa.C.S. § 8502(h).
To that end, PSERS' interpretation of the Retirement Code
should not be overturned unless it is clear that such construction
is erroneous. Panko v. Public School Employees' Retirement
System, 89 Pa. Cmwlth. 419, 492 A.2d 805, 807–808 (1985).
In addition, Section 8534(b) of the Retirement Code requires
PSERS to correct all intentional or unintentional errors in
members' accounts. In other words, PSERS has the duty to
correct errors made by public school employers and to make
actuarial adjustments to an individual member's benefit
payments.
Baillie, 993 A.2d at 949–50 (footnotes omitted).
A review of the record in this case reveals that there was substantial
evidence to support the Board’s conclusion that Claimant had not severed her
employment with the Center. In reaching its conclusion, the Board considered
evidence that (1) Claimant's planned retirement date, January 30, 2009, was in the
middle of the school year; (2) once Claimant announced her retirement, the Center
immediately asked her to continue to perform many of her same duties; (3) on
10
Section 401(a)(36) of the Internal Revenue Code prohibits a plan participant from
receiving distributions from a qualified plan prior to the death, disability, separation from service, or
the attainment of normal retirement age. 26 U.S.C. § 401(a)(36); see Rev. Rul. 74-254, 1974-1 C.B.
94. Such "in service distributions" are not generally allowable under defined benefit pension plans.
7
December 11, 2008, some six weeks prior to her planned retirement date, Claimant
signed a contract with the Center to continue providing many of the same or related
duties; (4) the duties Claimant agreed to provide were largely a continuation of the
work she performed prior to February 4, 2009; (5) the Center did not consider hiring
anyone to replace Claimant, did not advertise her position, and made no effort to
identify or recruit anyone else; and (6) the time lapse between Claimant's
employment and her contract work was only four days (including a weekend).
Claimant nonetheless argues that the Board erred in failing to find that
she served the Center as an independent contractor beginning on February 4, 2009.
Claimant asserts that because she and the Center intended that she would have the
status of independent contractor beginning on February 4, 2009, she was specifically
excluded from the definition of school employee, and therefore, she was eligible to
collect retirement benefits while continuing to work for the Center.
Claimant contends that she qualifies as an independent contractor based
on the factors set forth in Zimmerman v. Public School Employees’ Retirement Board,
522 A.2d 43 (Pa. 1987), where a school physician sought enrollment in PSERS and
credit for services he previously provided to a school district. In Zimmerman, the
Supreme Court was considering whether the claimant provided services as a school
employee or as an independent contractor. Whether a school employee had
terminated her service was not an issue in Zimmerman.
Claimant’s reliance on Zimmerman is misplaced. Though the nature of a
purported retiree’s subsequent work under contract is one relevant factor to be
considered when evaluating whether a school employee has genuinely terminated her
service so as to qualify to receive retirement benefits, it is not the sole factor.
8
Accordingly, the Board did not focus solely on the nature of Claimant’s contract
employment (where her duties were similar and related to her duties as business
manager); the Board properly considered all relevant circumstances, including the
time lapse between Claimant’s work as business manager and her work under
contract; the timing of her purported retirement; the timing of execution of the
contract for subsequent work; and the fact that the Center made no effort to consider
any other candidates for Claimant’s position.
Moreover, Claimant’s argument ignores existence of Section 8307(a) of
the Retirement Code, which establishes the bona fide termination of service as a
precondition to an employee attaining annuitant status. 24 Pa.C.S. § 8307(a). Where
a school employee never terminates her service, she has not become a valid annuitant.
Claimant’s argument that her purported “independent contractor” status alone is
definitive proof of having terminated an existing employment relationship is without
merit. This is a circular argument that would require us to only examine a potential
subsequent change in the work relationship while ignoring other factors critical to
ascertaining whether there was first a bona fide termination. The Board did not err in
determining that Claimant was not entitled to collect retirement benefits for the
period beginning on January 31, 2009.
Claimant also contends that the Board erred by applying a presumption
that a break in service of less than 90 days is insufficient to constitute a valid
termination of service. However, our review of the Board’s decision in this matter
reveals that the Board based its decision on the factors discussed above, not on the
application of any 90-day rule.11
11
The 90-day presumption referred to by Claimant is an internal policy or rule to guide
PSERS staff on whether PSERS should request additional information regarding the circumstances
of a member’s termination of service.
9
Lastly, Claimant contends that the Board erred by ruling that Claimant’s
due process rights were not violated when it suspended Claimant’s pension benefits
without notice. This Court rejected that same argument in Hairston-Brown v. Public
School Employees’ Retirement Board, 78 A.3d 720 (Pa. Cmwlth. 2013):
Claimant pursued all of her appeals which at each stage
fully reviewed the Board’s reversal of her initial retirement
benefits determination. Our Wyland [v. Public School
Employees’ Retirement Board, 669 A.2d 1098 (Pa. Cmwlth.
1996)] decision is controlling here, wherein we stated:
[Claimant] could, and did, appeal the initial
determination of [her] retirement benefits to
PSERS’ appeal committee and, ultimately, to the
[B]oard. [She] filed a brief . . . prior to the hearing
before the [H]earing [E]xaminer, attended the
hearing and presented evidence, and filed
exceptions to the [H]earing [E]xaminer’s
determination with the [B]oard. As [Claimant] was
given notice and a hearing prior to the final
determination of [her] retirement benefits, and there
exists no authority for a hearing in connection with
PSERS’ initial review, this claim is meritless.
Id. at 1101. Accordingly, Claimant’s procedural and
substantive due process rights were not violated by the
Board’s reversal of her initial retirement benefits
determination which resulted in a reduction of her . . . final
average salary and monthly retirement benefits without
prior notice and/or hearing.
Hairston-Brown, 78 A.3d at 731.
For the above reasons, the Board’s order is affirmed.
___________________________
JULIA K. HEARTHWAY, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cathy E. Robertson, :
Petitioner :
:
v. : No. 2156 C.D. 2015
:
Pennsylvania Public School Employees’ :
Retirement System, and Greater :
Johnstown Career and Technology :
Center, :
Respondents :
ORDER
AND NOW, this 18th day of May, 2017, the Public School Employees’
Retirement Board’s October 6, 2015 order is affirmed.
___________________________
JULIA K. HEARTHWAY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cathy E. Robertson, :
Petitioner :
:
v. :
:
Pennsylvania Public School Employees’ :
Retirement System, and Greater :
Johnstown Career and Technology :
Center, : No. 2156 C.D. 2015
Respondents : Argued: November 15, 2016
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
CONCURRING/DISSENTING OPINION
BY JUDGE COVEY FILED: May 18, 2017
I concur with the Majority’s rulings that Cathy E. Robertson’s
(Claimant) due process rights were not violated, and the Public School Employees’
Retirement Board (Board) did not base its decision on the application of the 90-day
rule, i.e., the Public School Employees’ Retirement System’s (PSERS) Business Rule
(Business Rule).1 However, I respectfully dissent from the Majority’s conclusion that
Claimant was not entitled to collect retirement benefits for the period beginning
January 31, 2009 because there was no bona fide termination of school service.
Claimant began working for the Greater Johnstown Career and
Technology Center (Center) in July 1970. On November 7, 2008, Claimant
submitted a PSRS-8 Application for Retirement (Retirement Application) to PSERS,
1
The Business Rule provides, in relevant part: “PSERS has adopted a ‘90[-]day
presumption rule’ as it relates to a break in service, i.e.[,] PSERS will presume a break in service if
there is an employer termination and the employee does not return to school service for 90 days.”
Reproduced Record, Vol. I at 199. We recognize that the Business Rule, although approved May
16, 2013, was not promulgated as a formal regulation.
wherein she designated January 30, 2009 as her anticipated retirement date. Also on
November 7, 2008, Claimant attended a retirement exit counseling session at which
she was informed that working for a PSERS employer after retirement will cause her
pension to be frozen unless such return is during an emergency or shortage or in an
extracurricular position. Claimant signed a Retirement Exit Counseling Checklist
(Exit Checklist) confirming her attendance at the retirement exit counseling session.
At the time she signed the Retirement Application and Exit Checklist, Claimant did
not intend to provide services to the Center as an independent contractor, and had not
been a party to any discussions with the Center’s personnel about doing so.
During discussions with the Center’s Administrative Director John
Augustine, II (Augustine) in January 2008, Claimant advised him of her tentative
retirement in 2009. However, it was not until after she had submitted her Retirement
Application and Exit Checklist that Claimant formally notified the Center’s Joint
Operating Committee Chairmen, Alan Tresnicky (Tresnicky) and Augustine, of her
January 30, 2009 retirement date. Because Claimant’s anticipated retirement date
was to occur during the middle of the school year, upon being formally informed of
Claimant’s pending retirement, Augustine consulted with Tresnicky and Chief School
Administrator Dr. DiBartola regarding how to staff Claimant’s job responsibilities.
Neither Augustine nor Tresnicky approached Claimant about providing services to
the Center after her retirement until Claimant submitted her Retirement Application
and Exit Checklist to PSERS.
After being informed of Claimant’s pending retirement, the Center
decided to outsource Claimant’s business manager position, perform a reorganization,
and attempt to retain Claimant’s services as an independent contractor. As part of the
Center’s reorganization, the Center eliminated Claimant’s business manager position
and the senior bookkeeper position held by Melissa McCall (McCall), and created a
new position titled administrative assistant of fiscal operations to be filled by McCall.
AEC - 2
McCall’s job responsibilities as fiscal operations’ administrative assistant entailed
performing all of her senior bookkeeper duties, plus assuming nearly all of
Claimant’s former business manager duties. After eliminating the senior bookkeeper
and business manager positions and reorganizing the department, the Center
identified the need for someone to assist the business office until McCall was
sufficiently trained.
Due to Claimant’s institutional knowledge, she was identified as the
preferred trainer for McCall. Tresnicky and Augustine made multiple attempts to
convince Claimant not to retire, or, alternatively, to provide services to the Center as
an advisor and/or independent contractor to assist McCall. Claimant initially
declined to serve as an independent contractor. On or about December 8, 2008, after
consulting with her husband, Claimant agreed to provide services to the Center
beginning after her effective retirement date. Claimant informed the Center that she
did not desire to work many hours, did not want to be required to come into the office
for work, and wished to work her own hours because she anticipated performing
much of her work at night. On December 11, 2008, Claimant entered into a
Business/Administrative Services Support Contract with the Center, effective
February 4, 2009, to perform 13 out of the 38 job duties and responsibilities she
previously performed as business manager (Contract).
Pursuant to the Contract, Claimant’s responsibilities primarily shifted
from being responsible for all day-to-day operations, assigning work and ensuring
work was completed as business manager, to assisting the business office in an
advisory capacity. Subsequent to January 30, 2009, Claimant continued to perform
13 of the 38 duties and responsibilities she had previously performed as business
manager, as well as additional duties and responsibilities which had not existed when
she was business manager, such as: administering grants under the American
AEC - 3
Recovery and Reinvestment Act of 2009,2 and assisting Augustine in his new role as
Secretary of the Pennsylvania Association of Career & Technical Administrators.
Claimant provided services to the Center under the Contract from February 4, 2009
through November 1, 2013.
Claimant and the Center argue that the Board erred by determining that
Claimant was not an independent contractor after January 31, 2009 and, thus, subject
to participation as an active PSERS member. Specifically, Claimant and the Center
contend that Section 215.5(d)(3) of the Board’s Regulations, 22 Pa. Code §
215.5(d)(3), and Zimmerman v. Public School Employes’ Retirement Board, 522
A.2d 43 (Pa. 1987) control this matter, as opposed to the Business Rule. The Board
rejoins that Zimmerman does not apply because Claimant was not newly entering an
employment relationship with the Center, but rather, she was continuing her prior
Center employment. The Board further asserts that the Contract did not create a bona
fide termination of services as contemplated by the Public School Employees’
Retirement Code (Retirement Code).3
The Majority maintains: “Claimant’s reliance on Zimmerman is
misplaced. Though the nature of a purported retiree’s subsequent work under
contract is one relevant factor to be considered when evaluating whether a school
employee has genuinely terminated her service so as to qualify to receive retirement
benefits, it is not the sole factor.” Majority Op. at 8 (emphasis added). However,
the Majority, like the Board, appears to have ignored this factor altogether.
Initially, Section 8301 of the Retirement Code provides, in pertinent
part:
2
Act of February 17, 2009, P.L. 111-5, 123 Stat. 437, as amended, § 2002(f), 26 U.S.C. §
3304 Note.
3
24 Pa.C.S. §§ 8101-8536.
AEC - 4
(a) Mandatory membership.--Membership in the system
shall be mandatory as of the effective date of
employment for all school employees except the
following:
(1) Any officer or employee of the Department of
Education, State-owned educational institutions, community
colleges, area vocational-technical schools, technical
institutes, or the Pennsylvania State University and who is a
member of the [PSERS] or a member of another retirement
program approved by the employer.
(2) Any school employee who is not a member of the
system and who is employed on a per diem or hourly basis
for less than 80 full-day sessions or 500 hours in any fiscal
year or annuitant who returns to school service under the
provisions of [S]ection 8346(b) [of the Retirement Code, 24
Pa.C.S. § 8346(b)] (relating to termination of annuities).
(3) Any officer or employee of a governmental entity who
subsequent to December 22, 1965 and prior to July 1, 1975
administers, supervises, or teaches classes financed wholly
or in part by the Federal Government so long as he
continues in such service.
(4) Any part-time school employee who has an individual
retirement account pursuant to the Federal act of September
2, 1974 (Public Law 93-406, 88 Stat. 829), known as the
Employee Retirement Income Security Act of 1974.
24 Pa.C.S. § 8301 (text emphasis added). Section 8307(a) of the Retirement Code
provides: “An active or an inactive member who attains superannuation age[4] shall be
entitled to receive a superannuation annuity upon termination of service and filing
of a proper application. All members must begin receiving a superannuation
annuity by the member’s required beginning date.” 24 Pa.C.S. § 8307(a) (emphasis
added). Further, Section 8102 of the Retirement Code defines “[d]ate of
termination of service[]” as “[t]he last date of service for which pickup
contributions are made for an active member or, in the case of an inactive member,
4
Superannuation age is normal retirement age. See 24 Pa.C.S. § 8102.
AEC - 5
the effective date of his resignation or the date his employment is formally
discontinued by his employer or two years following the last day of service for
which contributions were made, whichever is earliest.” 24 Pa.C.S. § 8102 (text
emphasis added). Section 8102 of the Retirement Code defines a school employee as
“[a]ny person engaged in work relating to a public school for any governmental entity
and for which work he is receiving regular remuneration as an officer, administrator
or employee excluding, however, any independent contractor or a person
compensated on a fee basis.” 24 Pa.C.S. § 8102 (emphasis added). Moreover,
Section 215.5(d)(3) of the Board’s Regulations provides:
In cases of doubt, the Board will determine whether any
person is a school employee within the meaning of the
Retirement Code. The Board will also determine whether
a person is an independent contractor or a person
compensated on a fee basis upon review of all the
circumstances surrounding the employment of the
person seeking membership in the program.
22 Pa. Code § 215.5(d)(3) (emphasis added). Here, the Board did not reach the issue
of whether Claimant was a school employee or an independent contractor, but rather
determined that Claimant’s January 31, 2009 retirement was a nullity because
“Claimant did not experience a bona fide termination of school service, effective
January 31, 2009.” Board Op. at 22 (emphasis added).
In Zimmerman, our Supreme Court addressed the issue of whether a
school physician was a school employee for purposes of PSERS eligibility. The
Zimmerman Court relied upon the factors established in Hammermill Paper Co. v.
Rust Engineering Co., 243 A.2d 389 (Pa. 1968), to determine that the school
physician was, in fact, an independent contractor. Those factors included:
Control of manner work is to be done; responsibility for
result only; terms of agreement between the parties; the
nature of the work or occupation; skill required for
performance; whether one is engaged in a distinct
AEC - 6
occupation or business; which party supplied the tools;
whether payment is by the time or by the job; whether work
is part of the regular business of the employer, and also the
right to terminate the employment at any time.
Hammermill, 243 A.2d at 392 (quoting Stepp v. Renn, 135 A.2d 794, 796 (Pa. Super.
1957)).
However, in the instant case, the Board, citing Baillie v. Public School
Employees’ Retirement Board, 993 A.2d 944 (Pa. Cmwlth. 2010), ruled that the
dispositive issue was not whether Claimant’s Contract fell within the independent
contractor factors but, rather, whether Claimant experienced a bona fide break or
termination of service.
In Baillie, the claimant was appointed the Executive Director of the
Chester County Intermediate Unit in 1982. In September 2006, the claimant
informed the Intermediate Unit’s Board that he intended to retire in January 2007.
However, he agreed to work under an emergency contract until the end of the school
year. In light of the challenges facing the Intermediate Unit, and the perceived
shortage of qualified candidates to replace the claimant, the Board voted at its
November 2006 meeting to employ the claimant under an emergency contract until
June 30, 2007. The claimant retired on Friday, January 5, 2007. After spending the
weekend in retirement, the claimant returned to his job as Executive Director on
Monday, January 8, 2007. The Baillie Court held:
[The claimant] never severed his connection with the
Intermediate Unit. [The claimant] finished his work week
on Friday and returned on Monday, the next business day.
This is not a separation; rather, [the claimant] continued to
work without any interruption. Accordingly, [the claimant]
did not become an annuitant in January 2007 and, thus, was
not eligible for an emergency hire.
. . . . [The claimant] never separated from service, and he
was not an annuitant when hired on an emergency basis.
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Id. at 951.
Baillie is clearly distinguishable from the case sub judice. First,
Claimant did not return to her original job. Upon learning of Claimant’s pending
retirement, the Center eliminated Claimant’s business manager position and
reorganized the department. See Certified Record Tab 14, Notes of Testimony
February 25, 2015 (N.T.) at 152-153; see also Findings of Fact (FOF) 14 and 15.
Further, Claimant did not agree to continue her employment when asked by the
Center, but rather steadfastly refused, stating that she did not want to work many
hours, did not want to come into the office and wanted to work at night. See N.T. at
24; see also FOF 19, 20, 22. Finally, while Claimant’s original position as a Center
employee required her to fulfill 38 specific duties and work 40 hours per week in the
Center’s office, her new position entailed only a fraction of those duties, was strictly
advisory in nature and required only half of the hours which she performed from her
home. Because Claimant did, in fact, sever her service as the Center’s business
manager when Claimant finished her January 31, 2009 work week, as it is undisputed
that her position was eliminated, her employment was separated at that time.
Accordingly, Baillie is inapposite.
Having determined that Baillie does not apply, we address the statutory
issue of whether Claimant was an employee or an independent contractor. “Whether
a claimant is an employee or an independent contractor is a question of law subject to
our review.” Tobey-Karg Sales Agency, Inc. v. Pa. Dep’t of Labor & Indus., 34 A.3d
899, 903 (Pa. Cmwlth. 2011). “The cases demonstrate that no one factor is
dispositive of one’s status and that each case must be determined on its own facts.
Using Hammermill as a guide, we turn to the facts established in this case.”
Zimmerman, 522 A.2d at 45.
First, the Contract is entitled: “BUSINESS/ADMINISTRATIVE SERVICES
SUPPORT CONTRACT BETWEEN [THE CENTER] AND CONTRACTOR [CLAIMANT].”
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Reproduced Record (R.R.) Vol. I at 155a (emphasis added). The Contract provides
that it is “effective February 4, 2009 and shall continue year-to-year unless
terminated by either party with a 60-day notice.” Id. (emphasis added).
Claimant’s pay under the Contract is “$35.00 per hour, with a [Internal Revenue
Form] 1099 to be issued each calendar year.” Id. (emphasis added).
In addition, Claimant testified that her work performed under the
Contract took place “at [her] home.” N.T. at 31. Claimant further related that she no
longer had an office at the Center and she used her own equipment and supplies to do
her Center work, i.e., computer, printer, paper, pens, ink cartridges. See N.T. at 32.
Claimant explained that she had no set hours, but she had an understanding with the
Center that she would not work more than 20 hours per week. See N.T. at 35.
Moreover, Claimant described preparing invoices approximately every two weeks
which needed to be approved before she would be paid for her services. See N.T. at
37.
Prior to her retirement, Claimant was paid a salary, received a W-2,
worked 40 hours a week and had significantly more duties and responsibilities. In
addition, Claimant worked at the Center’s office with the Center’s equipment and
supplies. “Under the facts and circumstances of this case[,] it is . . . inescapable that
[Claimant] is an independent contractor, and not a ‘school employee’ as defined in
[Section 8102 of the Retirement Code].” Zimmerman, 522 A.2d at 46. Accordingly,
the Board erred by determining that Claimant was not an independent contractor of
the Center after January 31, 2009 and, thus, subject to participation as an active
PSERS member.
For all of the above reasons, I would reverse the Board’s Order.
___________________________
ANNE E. COVEY, Judge
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