Attorney General: John R. Shears, Administrator, State Teachers' Retirement Board, 1991-029 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 9, 1991

John R. Shears, Administrator
State Teachers' Retirement Board
165 Capitol Avenue
Hartford, CT 06106

Dear Mr. Shears:

This is in response to your letter of April 11, 1991 in which you relate that the State Teachers' Retirement Board has requested our advice on the eligibility of a member of the Teachers' Retirement System to purchase additional service credits toward retirement for time while under disciplinary suspension.

The facts surrounding this situation are largely determinative of the answer to this question and are as follows: On December 20, 1990, Stephen Sekula, a teacher in the Madison School System was arrested for Larceny in the First Degree related to computer and electronic equipment belonging to the school system, On March 13, 1991, his application accelerated rehabilitation on this charge was granted by the court, and Mr. Sekula was placed on one year's probation. On January 21, 1991 Mr. Sekula entered into an agreement with the Madison Board of Education whereby he agreed to "accept a disciplinary suspension, without pay or any benefits, effective January 22, 1991." The preamble to that signed agreement states that Mr. Sekula "offered to accept the discipline ... in lieu of the board proceeding further on the motion to consider termination of his contract of employment." The agreement further provides that Mr. Sekula "shall receive no seniority or service credit for his employment with the Madison Board of Education during the 1990-91 school year, "He shall be on a one year probation for that school year." Finally, by signing the agreement to accept a disciplinary suspension, Mr. Sekula agreed that the suspension was "for just cause."

Subsequent to entering into this agreement, Mr. Sekula requested of the Superintendent of Schools that he be allowed to complete the formal leave of absence application form provided by the Teachers' Retirement Board. Mr. Sekula was denied permission to complete the form by the Superintendent who told Mr. Sekula that he was not on a leave of absence, but, rather, was on a disciplinary suspension. Mr. Sekula then sought to make contributions to the Teachers Retirement System claiming he was on a formal leave of absence granted by the Madison Board of Education. The Administrator of the System refused to accept these contributions because he did not believe that the disciplinary suspension in lieu of dismissal constituted a formal leave of absence granted by the Board of Education. Mr. Sekula then sought a hearing before the State Teachers' Retirement Board pursuant to Conn. Gen. Stat. 10-183y. The Board granted his request for a hearing, and, after the hearing, the Board decided to inquire of this office "if the definition of "formal leave of absence" indeed encompasses a disciplinary suspension." For the reasons set forth below the answer to the Board's question is no.

The Teachers' Retirement System is established under Chapter 167a of the General Statutes. Mr. Sekula is a member of that System as that term is defined in Conn. Gen. Stat. 10-183b(18). That statute provides, in part, that:

A member who, during the period of formal leave of absence granted by his or her employer, but not exceeding an aggregate of ten school months, continues to make mandatory contributions to the board, retains his or her status as an active member.

"Formal leave of absence" is defined in Conn. Gen. Stat. 10-183b(15) as:

any absence from active service in the public schools of Connecticut formally granted by a member's employer as evidenced by contemporary records of the employer, provided in the case of an absence due to illness, medical or other evidence of such illness may, at the discretion of the teachers' retirement board, be accepted in lieu of evidence of the formal granting of a leave.

Also germane to the Board's question is Regulations of Connecticut State Agencies. Sec. 10-1831-21, Leaves of Absence:

(a) Creditable leaves. An absence from active teaching service in the public schools of this state shall be creditable toward retirement provided such absence is a formal leave of absence granted by a teacher's employer, or is an absence due to illness. A member establishes that a formal leave of absence has been granted by his or her employer though records of the employer created at the time the leave of absence was granted. A member establishes that an absence was due to illness either by means of employer records which indicate a formal leave of absence was granted by the employer or through medical or other evidence satisfactory to the Board. A member who is performing active service in a teaching position at less than full time is not considered to be absent from active teaching service.

Clearly, the situation presented does not fall within leaves of absence due to illness. More accurately stated, then, the Board's question is whether a disciplinary suspension in lieu of termination constitutes a leave of absence formally granted by the member's employer as reflected in records of the employer created at the time the leave of absence was granted.

It is the position of Mr. Sekula that the imposition of a disciplinary suspension on him by the Board is the same as a formal leave of absence granted by the Board. However, the statute states that a leave of absence must be "formally granted by a member's employer as evidenced by contemporary records of the employer." Conn. Gen. Stat. 10-183b(15). In Mr. Sekula's case the contemporary records of the employer do not express that a leave of absence was formally granted but rather that a disciplinary suspension was imposed. The Superintendent of Schools told Mr. Sekula that he could not fill out the application for leave of absence because he was on disciplinary suspension, not a leave of absence.

Mr. Sekula's claimed leave of absence can only be construed in terms of the agreement he signed, which states that he is agreeing to a disciplinary suspension. The agreement by its terms specifically states that he will receive no benefits during the time of his disciplinary suspension. The agreement also states that Mr. Sekula may continue his insurance policies under the group policies at his own cost. However, the agreement does not state that he may continue to accrue retirement credits during his suspension, nor would such a provision prevail over any inconsistent provision of Chapter 167a. Therefore the contemporary records of Mr. Sekula's employer do not indicate that he has been granted a leave of absence.

A disciplinary suspension is not a leave of absence. It is not formally granted by the employer. The term "grant" is defined as: "to permit as a right, privilege indulgence or favor" [Webster's Third New International Dictionary, G&C Merrian Co. Springfield, MA (1965)]. Mr. Sekula was not "granted" a leave of absence but rather a he accepted an involuntary termination of his employment. Accordingly, it is our determination based on the acts of this case that Mr.. Sekula's disciplinary suspension is not a leave of Absence as that term is defined in Conn. Gen. Stat. 10-183b(15), and that he may not make contributions to the Teachers' Retirement Fund to obtain credit for the time of his disciplinary suspension.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert A. Whitehead
Assistant Attorney General

RB/RAW/eh


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