Notes for WWI research: Louis Sheehan 21

Notes for WWI research: Louis Sheehan 21

Here for three nights we conducted meetings, with five or six hundred men in attendance. More than a hundred men signed the decision cards each night, and when asked it was found that one-third of them had made the decision for the first time, about one-third of them were back-sliders who had been living as Christians before the war but who had gone down before temptation, while the remaining third had been maintaining a consistent Christian life during the war.

In a second after-meeting in the Quiet Room one night, men from almost every quarter of the globe spoke and gave testimony. Here was one poor fellow who had come over after several years in the States. He had had delirium tremens three times, and showed the effects of it on his face. He had formerly been the center of the foul talk and vulgar language of his tent. He had now come straight out for Christ and had boldly witnessed for Him before the men. The second boy, the son of a prominent officer in South Africa, arose under deep emotion. He had been living a wild and reckless life and was known as the "Red Light King." After his conversion, he went out and brought in another comrade who openly decided for Christ. There were boys from Canada, Australia, and England who followed, many of them with tragedies in their past lives.

It is impossible to calculate the vast influences for good that have been flowing from this hut to the thousands of men who pass through it. The aim of the young Scotch minister who is the leader has been to make it for all the men "a home away from home." The life in the army, with its irksome toil, daily drill, cold and wet and mud, the horror of battle and the pain of wounds, is all for the moment forgotten as the men enter the place.

We tell the leader that we are taking this building as the model for our new American camps. He says: "Large as this hut is, it is not large enough or good enough for the men. Daily we have need for better equipment. This hut as it stands will serve from two thousand to three thousand men in a day, but nothing is too good for these boys who are coming here to suffer and die in this faraway land. You will send your sons over from America to spend this cold winter on the bleak plains of France in open bell tents. They will be fed on canned goods and corned beef, and they will be housed in the most unattractive towns of France, where there is absolutely no interest or diversion apart from drink and women. You can hardly realize what it means to sit down in a homelike place, to get a hot cup of tea served on a white tablecloth. This is the only home these boys will see in France, and they will either come here or go to the red light resorts. I wish I could tell the men of America what their boys will face here, what they will suffer, what temptations will assail them. The best equipment you can give them is not good enough, for the people at home little realize to what a life their boys are coming, and what hardships will face them here in France."

CHAPTER VI

THE CAMP OF THE PRODIGALS

We are in a natural amphitheater of the forest, near a big base hospital, about seventy miles behind the lines in France. Always in the stillness of the woods, even at this distance, one can hear the intermittent boom of the big guns at the front, and the air is vibrant on this summer evening. Beyond the wood lies the old drill ground of Napoleon, which is used today as a field for final training for the reenforcements for the front line.

In this wide open space in the woods at sundown the patients of the hospital in their blue uniforms are gathering for the meeting. It is a picturesque sight to see about eight hundred of them seated on the grass, while an orchestra composed of their own men is playing before the opening of the meeting. Who are these men before us? They are not the wounded who have fallen on the field of honor, but the sick, and, quite frankly, they all have venereal disease. The war has dragged this moral menace so into the light of day that the times of prudish silence and of fatal ignorance should have passed for all who are truly concerned for the welfare of the soldier and who want to know his actual conditions. We shall, therefore, in this chapter call a spade a spade.

The eight hundred men gathered here are a small part of some thousands of similar cases in France. The London Daily Mail of April 25th, 1917, referring to the report of the military authorities to the House of Commons, stated that there had been some two hundred thousand cases of venereal disease in the British Army in France alone. This does not include England or the men on the other fronts. The British Army is not worse than others. Professor Finger, at a meeting of the Medical Society in Vienna early in the war, estimated that over 700,000, or some ten per cent of the Austrian troops, had contracted venereal disease. More ominous still is the fact that in almost every place yet investigated the majority of the men were confessedly living in immorality amid the temptations of the base camps in France.

As we visit the hospitals in France, we are saddened by the fact that for one of the two venereal diseases no cure has yet been found, that a large proportion of these cases suffer a relapse, and that over seventy per cent will develop complications. As one Commanding Medical Officer said, "There is enough venereal disease in these military camps now to curse Europe for three generations to come."

One young major said: "Every day I am losing my boys. I've lost more men through these forces of immorality than through the enemy's shot and shell." The recent report of the Royal Commission shows the grave menace of the disease to Britain, where twenty per cent of the urban population has been infected. Flexner's terrible indictment in his "Prostitution in Europe" proves how particularly dangerous and pernicious is the system of inspection and regulation which legalizes and standardizes vice as a "necessary evil" and spreads disease through the false sense of security which it vainly promises. Even if the inspection and regulation of vice were physically perfectly successful, it might still lead to national degeneration, but instead of being a success it has proved, especially in France, a miserable failure. We cannot place all the blame upon local conditions, for the presence of an army in a foreign land in wartime creates its own danger.

Among the men in the venereal hospitals of France are musicians, artists, teachers, educated and refined boys from some of the best homes, and in another camp we find several hundred officers and several members of the nobility. What was the cause of their downfall? A questionnaire replied to by several hundred of them revealed the fact that six per cent attributed their downfall to curiosity, ten per cent to ignorance, claiming that they had never been adequately warned by the medical authorities, thirteen per cent to loss of home influences and lack of leave, thirty-three per cent to drink and the loss of self-control due to intoxication, while the largest number of all, or thirty-eight per cent, attributed it to uncontrolled passion when they were unconverted or had no higher power in their lives to enable them to withstand temptation. But perhaps the chief cause of the spread of immorality is the unnatural conditions under which the men are compelled to live in a foreign land in war time.

Donald Hankey, the brilliant young author of "A Student in Arms," who fell at the front, speaks thus of the moral problem in the soldier's life:

"Let us be frank about this. What a doctor might call the 'appetites' and a padre the 'lusts' of the body, hold dominion over the average man, whether civilian or soldier, unless they are counteracted by a stronger power. The only men who are pure are those who are absorbed in some pursuit, or possessed by a great love; be it the love of clean, wholesome life which is religion, or the love of a noble man which is hero-worship, or the love of a true woman. These are the four powers which are stronger than 'the flesh'—the zest of a quest, religion, hero-worship, and the love of a good woman. If a man is not possessed by one of these he will be immoral.… Fifteen months ago I was a private quartered in a camp near A——.… The tent was damp, gloomy, and cold. The Y M C A tent and the Canteen tent were crowded. One wandered off to the town.… And if a fellow ran up against 'a bit of skirt' he was generally just in the mood to follow it wherever it might lead. The moral of this is, double your subscriptions to the Y M C A, Church huts, soldiers' clubs, or whatever organization you fancy! You will be helping to combat vice in the only sensible way."

We agree with Donald Hankey that the appetites hold dominion over the average man, whether civilian or soldier. We do not wish to make any sweeping generalizations or accusations. We have no means of knowing how many men are immoral in peace time, as we have in war time. We only know that conditions of ordinary times are intensified, aggravated, and multiplied; and they are revealed in war time as never before, and thrown upon the screen of the public gaze. The writer also desires to guard against any possible impression that the British army is worse than our own or any other. It is too early to know what record our men will make, but we find it difficult to believe that they could have maintained a higher standard if placed in equal numbers in the same circumstances.

But to return to our meeting. Every one of these eight hundred men in this audience has a history. Tired or hardened or haggard faces are relaxed as they join in singing the hymns on this Sunday evening, "Nearer, My God, to Thee," "Lead, Kindly Light," "Tell Me the Old, Old Story," and "Where is my Wandering Boy Tonight?" There is a tragedy in every heart, and each man has experienced the bitterness of sin and bears its scars branded in his body. Look into the faces of some of these men. Here in front, this very first one, is an American cowboy from Texas, Frank B——. As a "broncho-buster" he became the star rider in Buffalo Bill's Wild West Show and was finally adopted as his son. At the age of fifteen he started to go wrong in New Orleans. At an early age he joined the American army, and later, at the outbreak of the war, he served in the Flying Corps of the British army. Here he broke a leg and was smashed up in action. After that he joined an infantry division. In one of the meetings this week he accepted Christ. He has since been standing firm and goes out tomorrow to begin a new life. Near him is a young theological student with a sad look on his face, who has learned here in bitterness the deepest lesson of his life. Next to him is a heartbroken married man with a wife and children at home.

After the crowd has assembled, we speak to them of Christ as the Maker of Men. We tell them of the transformation of others like themselves, of Augustine, Francis of Assisi, Loyola and the saints of old, of John B. Gough, Jerry McAuley, Hadley, and the men of Water Street whom God raised out of the depths, and of men right in their midst who have come out for Christ in the meetings this week. After speaking for an hour, we go into the Y M C A for an after-meeting.

We had a wonderful time with them here one Saturday night. Five hundred of them crowded the hall and listened for an hour as we spoke on the good news of the free offer of life. When the invitation was given, over two hundred stayed to the after-meeting as desiring to follow Christ. After we had spoken one of the men came forward and asked if he could say a word. He had been an earnest Christian before the war, and as he began to speak of his fall and of his trusting wife and children at home, the poor fellow broke down in utter wretchedness. It seemed to strike a responsive chord in the hearts of the married men all over the room. Many a one buried his head in his hands and wept bitterly. A second after-meeting was held and God seemed to be moving in the heart of every man present. Man after man rose to tell of his fall, or of his repentance, or of his new acceptance of Christ. The feeling was deep but controlled. It was one of the saddest and yet one of the gladdest meetings I have ever attended. One minister present said he had seen nothing like it all through the Welsh revival.

During their stay in this hospital great changes have taken place in many of these men. Here is Dan, a young chauffeur, a strong-willed, self-sufficient young fellow who thought he needed no help and no religion. He has a Christian wife at home to whom he has been untrue, for the temptations of the war swept him off his feet like a flood. In the meetings this week he turned to Christ and has been working right and left bringing in others ever since. Beside him is a poor fellow whom he has just brought to the meetings. He went on leave to England, only to find his three children deserted by his wife, who had run away, untrue to him. At last he found her, and brought her home. On his return to the army, he finds that now he has to bear here in the hospital the vicarious result of her fall. He came to me as a non-Christian struggling with the problem of forgiveness. Could he forgive her all this and his broken home? At last in Christ he found the power to forgive and took up his heavy cross. He knelt at the altar of the little chapel and yielded up his life to God. Tomorrow he leaves the hospital to begin a new life.

Here is a young Australian who was untrue to his wife. When we first saw him he was hardened by sin. That night he yielded to Christ. The next Sunday we knelt beside him at the Lord's Supper. He was a new man; his very face was changed. He said, "I have read of miracles in the past, but there was never a greater miracle than the change which has taken place in my heart and life. I am a new man. I can look any one in the face today!"

Beside him at that communion table knelt a young gunner, "Joe," of the Royal Field Artillery. He was a strong, red-cheeked six-footer, winsome and good to look upon, the most popular man in his battery. Away from home among bad companions he was swept off his feet and fell. He has found Christ here among the prodigals in a far country. Before leaving he came up to bid us good-by, saying, "I'm going out to warn other men and to witness for Christ to the end of my days."

Here is M——, a young sergeant, who came up after the meeting, with tears in his eyes. "Sir," he said, "I was never drunk but once in my life, when my pals were home on leave, and that once, under the influence of drink, I fell. Here I am in the hospital, yet I am engaged to a little girl at home who is as white as snow. What is my duty in the matter?" He has accepted Christ and is a changed man.

Oh, it is a wonderful sight to see men transformed by this inward moral miracle, wrought by the touch of the living God. Here in the very center of this venereal camp stands the Y M C A, endeavoring to meet their every need, and even here the red triangle shines with the hope of a new manhood for body, mind, and spirit. Every day at the hour of opening there is a scurry of feet as the men rush in to the one center in the whole camp where they can congregate. Martin Harvey has just been here to cheer them up, and they were enthusiastic over a fine lecture and recital last night on Chopin. The Colonel in command takes particular pride in the Y M C A for his men, and states that crime among them has been reduced ninety per cent since it started.

But even greater than the privilege which the Association has in ministering to the fallen, is its work of prevention in the other camps. Just up the road is a swearing old major in command of a unit which has always had the worst record for immorality and disease of any camp on the plain. He finally came in and demanded a Y M C A hut for his men. A few weeks later he came to the Association headquarters and said, in punctuated language which could not be printed, "For a year and a half my camp has led all the rest as the worst in venereal disease, with some twenty-five fresh cases every week. The first week after the Y M C A was opened we had only ten cases, the next week six, the third week only two, and it has not risen above that since. Your Association is the ——— best cure for this evil."

Nothing less than reaching the whole man can meet this gigantic problem. You must take physical precautions and build up a strong, clean, athletic body. Better than all repressive rules and regulations, you must provide healthy and happy occupation for the minds of the men. But beyond the reach of medical and military restrictions you have got to grip and strengthen their spiritual and moral nature. Otherwise, in the artificial and unnatural conditions consequent upon a vast concentration of men in a foreign land, away from all home influences, and in the poisonous atmosphere of a land of "regulated" immorality, where the government still regards it as a "necessary evil," you must see your men fall in ranks before the machine guns of commercialized vice, controlled by the vested interests, or fall a prey to the harpies who walk the streets. In the face of all this we must lay bold claim to the whole of manhood for God and for the high ends for which it was created.

The writer recently walked through a French street of licensed vice, where strong young fellows were tossing away their birthright for a mess of pottage. He passed on the main street of the city two young Americans from a medical unit who were reeling along in the possession of two harpies. They were shouting to all the passers by, trying to hold up the carriages, and widely advertising their uniform and their nation. We recognize the difficulty of maintaining a high moral standard in a foreign land in war time, but we believe it can be done. A plan has recently been suggested by the Association for dealing with this menace.

First of all, it is proposed to conduct a campaign of education on the highest moral grounds by a select group of lecturers, capable of presenting wisely the danger of immorality from both the medical and moral standpoints. This will involve the preparation of lectures, charts, lantern slides, films, and everything needed for the effective presentation both to the ear and eye. It is hoped that these lecturers will be able to instruct chaplains, Y M C A secretaries, and all who are responsible for the moral leadership of the troops, in order that they may be better able to cope with the situation. It is proposed that these lecturers conduct meetings for three days in each center, with a parade lecture for each battalion and voluntary meetings in the evening, which will include addresses on hygiene, lantern lectures, and moral talks. Healthy literature will be prepared and distributed to the men, and similar campaigns will be conducted in the camps in the United States and on shipboard before the troops reach France.

Second, a positive program for the occupation and amusement of the men will be provided. Athletic sports, games, tournaments, track meets, and other events will offer adequate physical facilities. Amusements, entertainments, concerts, classes, and lectures will be arranged for the mental occupation of the men. Meetings, personal interviews, and services will be planned to keep before them the moral and spiritual challenge and the call for clean living. Special campaigns will be carried on in all Y M C A huts from time to time.

Third, we would favor strict regulations and penalties to cope with immorality. We are glad that the selection of camp sites for the American troops in France is being made at places as far removed from the temptations of the cities as possible, where the men will be kept under closer supervision than could be done if the troops were located near large centers of population. Other means are being provided which cannot here be mentioned.

In the fourth place, we favor adequate medical provisions, coupled with the highest moral restraints. We will take our stand against any league with vice, against any recognition of immorality as a "necessary evil." We will stand against all notices, lectures, or medical talks such as are given in some quarters, which practically serve as an invitation or solicitation to immorality. We would oppose any provision on the part of the authorities to provide in advance for immorality, to standardize it, accept it, and attempt to render it safe, and we would oppose any mention of it which tends to advertise and increase the evil. We would strenuously oppose the running of supervised houses of prostitution by our own military authorities, as was done by some of them on the Mexican border. Conceivably a system of inspected government houses and of prophylactic measures might be devised which would eliminate disease altogether, and yet demoralize the young manhood of our nation by a cynical scientific materialism such as we are fighting against in the powers that dragged the world into this war. We are more opposed to immorality than to disease, which is its penalty. We fear not only the impairment of the physical fitness of the men as a fighting force, but much more the menace of the moral degradation of the manhood of the nation, under the unnatural conditions of wartime.

We believe that the hearty cooperation of the medical and moral agencies and of the military and voluntary forces which have to do with the men, can greatly reduce both immorality and disease. We feel sure, moreover, that the solid backing of public opinion in America will support every effort to surround our camps with a zone of safety and to keep the men clean and strong in the multiplied dangers of a foreign land, as well as in the military camps of our own country. It is reassuring to know that our military authorities abroad have taken a strong stand and that in no army in Europe are drunkenness and the contraction of venereal disease more instantly court-martialled or more severely punished.

Notes for WWI research: Louis Sheehan 21

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"As They Tested Our Fathers"

By Rudyard Kipling.

Following is the text of an address by Mr. Kipling to a mass meeting at Brighton, Sept. 8, 1914:

Through no fault nor wish of ours we are at war with Germany, the power which owes its existence to three well-thought-out wars; the power which for the last twenty years has devoted itself to organizing and preparing for this war; the power which is now fighting to conquer the civilized world.

For the last two generations the Germans in their books, teachers, speeches, and schools have been carefully taught that nothing less than this world conquest was the object of their preparations and their sacrifices. They have prepared carefully and sacrificed greatly.

We must have men, and men, and men, if we with our allies are to check the onrush of organized barbarism.

Have no illusions. We are dealing with a strong and magnificently equipped enemy, whose avowed aim is our complete destruction.

The violation of Belgium, the attack on France, and the defense against Russia are only steps by the way. The Germans' real objective, as she has always told us, is England and England's wealth, trade, and worldwide possessions.

If you assume for an instant that that attack will be successful, England will not be reduced, as some people say, to the rank of a second-rate power, but we shall cease to exist as a nation. We shall become an outlying province of Germany, to be administered with what severity German safety and interest require.

We arm against such a fate. We enter into a new life in which all the facts of war that we had put behind or forgotten for the past hundred years have returned to the front and test us as they tested our fathers. It will be a long and a hard road, beset with difficulties and discouragements, but we tread it together and we will tread it together to the end.

Our petty social divisions and barriers have been swept away at the outset of our mighty struggle. All the interests of our life of six weeks ago are dead. We have but one interest now, and that touches the naked heart of every man in this island and in the empire.

If we are to win the right for ourselves and for freedom to exist on earth, every man must offer himself for that service and that sacrifice.

---

{107}Kipling and "The Truce of the Bear"

STAUNTON, Va., Sept. 25, 1914.—On Sept. 5 The Staunton News printed some verses by Dr. Charles Minor Blackford, an associate editor, addressed to Rudyard Kipling, calling attention to the apparent inconsistency of his attitude of distrust of Russia as shown in his well-known poem, "The Truce of the Bear," and his present advocacy of the alliance between Russia and Great Britain. A copy of the verses was sent to Mr. Kipling and the following reply was received from him:

Bateman's Burwash, Sussex.

Dear Sir: I am much obliged for your verses of Sept. 4. "The Truce of the Bear," to which they refer, was written sixteen years ago, in 1898. It dealt with a situation and a menace which have long since passed away, and with issues that are now quite dead.

The present situation, as far as England is concerned, is Germany's deliberate disregard of the neutrality of Belgium, whose integrity Germany as well as England guaranteed. She has filled Belgium with every sort of horror and atrocity, not in the heat of passion, but as a part of settled policy of terrorism. Her avowed object is the conquest of Europe on these lines.

As you may prove for yourself if you will consult her literature of the last generation, Germany is the present menace, not to Europe alone, but to the whole civilized world. If Germany, by any means, is victorious you may rest assured that it will be a very short time before she turns her attention to the United States. If you could meet the refugees from Belgium flocking into England and have the opportunity of checking their statements of unimaginable atrocities and barbarities studiously committed, you would, I am sure, think as seriously on these matters as we do, and in your unpreparedness for modern war you would do well to think very seriously indeed. Yours truly,

RUDYARD KIPLING.

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Platinum Sphinx 91 Louis Sheehan

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Louis Sheehan --------->

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C21 543 Pa. 132, *; 669 A.2d 940, **; 1996 Pa. LEXIS 10, *** ROBERT D. CHRISTIANA, Appellant v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Appellee No. 75 W.D. Appeal Docket 1994 SUPREME COURT OF PENNSYLVANIA 543 Pa. 132; 669 A.2d 940; 1996 Pa. LEXIS 10 September 18, 1995, ARGUED January 18, 1996, DECIDED PRIOR HISTORY: [***1] Appeal from the Order of the Commonwealth Court Entered July 28, 1994, at No. 1745 C.D. 1993, Affirming the Opinion and Order of the Public School Employes' Retirement Board Dated June 24, 1993 at No. 117-16-8296. 166 Pa. Cmwlth. 300, 646 A.2d 645 (1994). JUDGES BELOW: CRAIG, COLINS, MCGINLEY, PELLEGRINI, FRIEDMAN, KELLEY, NEWMAN, JJ. (Cmwlth.). DISPOSITION: Affirmed. COUNSEL: Mr. Robert D. Christiana, APPELLANT, Pro se. For Public School Employes' Retirement Board, APPELLEE: Louis Sheehan, Esquire. For Attorney General's Office, APPELLEE: Ernest D. Preate, Jr., Esquire. JUDGES: MR. CHIEF JUSTICE ROBERT N. C. NIX, JR., FLAHERTY, ZAPPALA, CAPPY, CASTILLE, MONTEMURO, JJ. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case. OPINION BY: ZAPPALA OPINION [**940] [*134] OPINION JUSTICE ZAPPALA DECIDED: JANUARY 18, 1996 Appellant, Robert D. Christiana, is a former superintendent of the Upper St. Clair School District. Prior to his retirement, the School District had purchased certain annuities for Christiana. Christiana requested that the amounts paid for the annuities be included by the Public School Employes' Retirement System (PSERS) in its calculation of his final average salary for retirement purposes. After an administrative hearing, the Public School Employes' Retirement Board (Board) entered an order directing that the annuities were not to be included in the computation of his retirement benefits. The Commonwealth Court affirmed the Board's order in an en banc decision. We granted Christiana's petition for allowance [***2] of appeal and now affirm. The Board's opinion set forth detailed factual findings that are summarized as follows. Christiana was hired as the superintendent by the School District in July of 1979 at a starting salary of $ 52,000. He had been employed previously by school districts in [**941] Michigan and New York in various positions and had served as the superintendent of Pennsylvania's Springfield Township School District. Christiana's salary was increased over the next few years: 1980-1981 $ 58,000 1981-1982 $ 63,500 1982-1983 $ 65,723 1983-1984 $ 71,000 In the next five years, the School District reported the following figures as Christiana's salary to PSERS: [*135] 1984-1985 $ 71,000 1985-1986 $ 71,000 1986-1987 $ 71,000 1987-1988 $ 74,000 1988-1989 $ 80,000 Beginning with the 1984-1985 school year, the School District also expended funds to purchase single premium annuities for Christiana. The School District did not report the expenditures as part of Christiana's salary to PSERS or pay retirement contributions on those amounts. The minutes of Upper St. Clair School Board's meetings at which the annuity payments were addressed indicate [***3] that the annuity payments were to be made for purposes of purchasing prior years' seniority pension credit. 1 The minutes reflect the costs of the annuity purchases: FOOTNOTES 1 The minutes also indicate that the annuity payments were "in lieu of salary increases." For the school year 1987-1988, in which Christiana also received a salary increase of $ 3,000, the minutes state that "in lieu of any additional salary increase," the School District shall purchase a single premium annuity for purposes of purchasing prior years' seniority pension credit at a cost of $ 9,500. 1984-1985 $ 5,000 1985-1986 $ 7,000 1986-1987 $ 10,000 1987-1988 $ 9,500 By early November of 1988, the School Board was apprised of Christiana's intention to retire at the end of the 1988-1989 school year. On November 14, 1988, the School Board adopted a resolution relating to Christiana's anticipated retirement: RESOLVED, That for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further, [***4] RESOLVED, That commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits applicable to building administrators shall be continued for the Superintendent until his attaining age 65, and for his wife Nancy, until her attaining age 65, at District expense; and further, RESOLVED, That the District shall reimburse the Superintendent during the 1988-1989 school year for costs incurred [*136] for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further, RESOLVED, That the District shall purchase for the Superintendent three years' pension credit under the State Retirement Plan for his service in the United States Air Force as permitted by the laws of Pennsylvania; and further, RESOLVED, That the District shall provide the Superintendent with an annuity or other equivalent payment at a cost to the District of $ 19,200 for purposes of purchasing for the Superintendent pension credit under the State Retirement Plan for service as an educator in positions prior to his employment under the Pennsylvania retirement system, as permitted [***5] by the laws of Pennsylvania; . . . The annuity payment of $ 19,200 for the 1988-1989 school year became problematic due to changes in the federal tax code that were effective as of January 1, 1989. In response, the School Board rescinded the resolution of November 14, 1988, and adopted a second resolution on January 9, 1989. The resolution split the $ 19,200 payment into two separate payments of $ 9,500, which was backdated to the 1988 calendar year, and of $ 9,700, which was to be made at or prior to Christiana's retirement date of June 30, 1989: MOTION: By Wellington: WHEREAS, the Board of School Directors at its regular meeting on November 14, 1988, adopted certain resolutions relating to the salary and the benefits payable to or for the benefit of the Superintendent; and WHEREFORE, prior to the adoption of such resolutions it was represented to the Superintendent that the Board would consider [**942] modification to those resolutions after the Superintendent and the District had an opportunity to consult with their respective advisors, and such consultations have taken place and the Board is prepared to make certain modifications; NOW, THEREFORE, [***6] BE IT RESOLVED, that with the consent and agreement of the Superintendent, the resolutions [*137] adopted by the Board at its November 14, 1988, meeting relating to the salary and benefits payable to or for the benefit of the Superintendent be and are hereby rescinded and the following resolutions are adopted in their place and stead: RESOLVED, that for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further, RESOLVED, that commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits then applicable to Building Administrators shall be continued for the Superintendent until his attaining age 65, and for his wife, Nancy, until her attaining age 65, at District's expense . . . RESOLVED, that the District shall reimburse the Superintendent during the 1988-89 school year for costs incurred for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further, RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities, [***7] shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further, RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania. Pursuant to this resolution, the School District purchased an annuity in the amount of $ 9,500. The annuity payment was not reflected in Christiana's regular salary. The $ 9,700 payment made in 1989 was treated differently, however. Christiana received that payment directly, but the School District in turn reduced his monthly take-home pay and used the payroll [*138] deductions to purchase the 1989 annuity. From March of 1989 through June of 1989, the School District reported additional remuneration of $ 8,730 to PSERS that reflected the payroll changes. Christiana submitted an application for retirement to PSERS on August 8, 1989. On [***8] January 19, 1990, PSERS sent a letter advising the School District that after review of the School Board's minutes of November 14, 1988, and January 9, 1989, the $ 8,730 reported did not appear to be Christiana's normal salary and that the amount could not be used in calculating his retirement benefits. The School District was requested to submit a form to reflect this change in the reported salary. The School District did not comply with the request. Instead, a form was sent increasing the salary report by the sum of $ 970 -the difference between the $ 9,700 annuity purchase for 1989 and the $ 8,730 originally reported as salary. In a letter dated February 9, 1990, the School District's business manager noted the correction and indicated that in addition, the report for the fourth quarter of 1988 had failed to report a payment of $ 9,500 to Christiana. The letter stated that the School District viewed the payments as merit increases. On February 27, 1990, PSERS requested a copy of the School District's merit pay policy. The School District did not respond. On December 19, 1990, PSERS informed Christiana that his request to include the $ 9,500 for the 1987-1988 school year and the [***9] $ 9,700 for the 1988-1989 school year in its calculation of his final average salary for retirement purposes had been denied. An administrative hearing was held on September 11, 1991, before a hearing examiner to consider whether the $ 19,200 should be considered as compensation under the Public [**943] School Employees' Retirement Code. 2 PSERS learned then that the School District had purchased annuities for Christiana during the four previous school years (1984-1988). At the hearing, Christiana sought for the first time to add [*139] each of those annuity purchases to the salary amounts reported by the School District to PSERS. Christiana's take-home pay did not reflect those payments, and as noted earlier, the School District never included any of the annuity purchases in its salary reports to PSERS during those four years. FOOTNOTES 2 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101-8104. The hearing examiner recommended that the $ 19,200 should be excluded from the calculation of Christiana's final average salary [***10] because the amount was properly characterized as nonincludable "severance payments" under the Retirement Code. The hearing examiner also recommended that the four annuity payments made during 1984-1988 be included in the calculation of final average salary as compensation. The Board determined that Christiana had not properly raised the issue relating to the four annuity purchases in the earlier years, but nevertheless addressed the issue because there were sufficient facts on the record for its resolution. The Board concluded that the nonsalary reduction tax shelter annuity payments were not includable as Retirement Code compensation because they were nonstandard and/or nonregular remuneration as well as being bonuses and fringe benefits. The $ 19,200 annuity purchases in the 1988-1989 school year were found not to be includable in Retirement Code compensation because the payments were components of a severance package and were also characterized as nonincludable bonuses and fringe benefits. On June 24, 1993, the Board entered an order directing that none of the annuity purchases were to be included as Retirement Code Compensation. The Commonwealth Court affirmed the Board's order. [***11] HN1 On appeal from a final adjudication of an administrative board, our scope of review is limited to a determination of whether the board committed an error of law, whether there has been a violation of constitutional rights, or whether necessary factual findings are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). The issue raised in this appeal is whether the Board committed an error of law in determining that the annuity payments were not compensation [*140] for purposes of computing final average salary under the Retirement Code. Section 8102 of the Retirement Code defines the following relevant terms: HN2"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding any severance payments. "Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months with the compensation for part-time service being annualized on the basis of the fractional portion of the school year for which credit is received; [***12] except, if the employee was not a member for three such periods, the total compensation received as an active member annualized in the case of part-time service divided by the number of such periods of membership; and, in the case of a member with multiple service credit, the final average salary shall be determined by reference to compensation received by him as a school employee or a State employee or both. "Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. "Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational [**944] and experience qualifications who are not terminating service. 24 Pa.C.S.A. § 8102. The regulations promulgated under the Retirement Code further refine the definition of "compensation:" HN3Excludes a bonus, severance payment or other remuneration or similar emoluments received by a [***13] school employee during his school service not based on the standard salary [*141] schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. 22 Pa. Code § 211.2. The restrictive definitions of compensation under the Retirement Code and regulations reflect the Legislature's intention to preserve the actuarial integrity of the retirement fund by "excluding from the computation of employes' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits." Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (1993); Laurito v. Public School Employes' Retirement Board, 146 Pa. Commw. 514, 519, 606 A.2d 609, 611 (1992). In Laurito v. Public School Employes' Retirement Board, the Commonwealth Court affirmed [***14] a decision of the Retirement Board that refused to include a salary increase for the purposes of computation of retirement benefits for an elementary middle school principal. Dr. Angelo Laurito retired after 42 years of service with the Northern Cambria School District. Laurito's annual salary was negotiated each year with the school district. For the 1984-1985 school year, his salary was $ 32,600. On July 25, 1985, the school board awarded him a $ 16,000 "salary adjustment" for the 1985-1986 school year. In addition, Laurito was granted a leave of absence for the 1985-1986 school year, and his July 1, 1986 resignation for retirement purposes was accepted. PSERS notified Laurito that the $ 16,000 increase would not be included as compensation for retirement purposes. The Retirement Board upheld the determination, concluding that the claimed salary adjustment was a severance payment. The Commonwealth Court affirmed on appeal, finding that the [*142] record failed to establish that Laurito's salary increase was customary for an individual of similar experience within the school district. The court concluded that the school board's actions were tantamount to a severance agreement, stating [***15] We find especially persuasive the observation made by the board that the $ 16,000 payment in the final year of service provided a mechanism for the school district to recognize Laurito's devoted service, as well as to remedy the perceived inequity of a below-average salary throughout a working lifetime, by effectuating an inflated final salary for purposes of retirement benefits. 146 Pa. Commw. at 519-20, 606 A.2d at 611-12. In Dowler v. Public School Employes' Retirement Board, the Commonwealth Court held that a payment made pursuant to a retirement agreement was not compensation despite the personnel director's performance of consulting services. William Dowler was employed for over seventeen years as the personnel director at the West Chester Area School District before his retirement on July 1, 1988. In addition to his other duties, Dowler conducted all of the school district's labor negotiations in the first three years of his employment. The school district hired private contractors to conduct labor negotiations thereafter. On November 17, 1987, Dowler and the school district entered into an agreement concerning his retirement. Dowler was to be placed on a [***16] reduced work schedule from January 1, 1988, to July 1, 1988. He was to be compensated during that time as if he were working a five-day schedule and his duties would include training a replacement and assisting with negotiations. In addition, [**945] funds were to be given to Dowler on January 1, 1988, to purchase credit for his military services in an amount not to exceed $ 15,000. For the first time in Dowler's experience, three labor contracts expired at the end of June, 1988. Dowler assisted in the negotiations while working full-time as the personnel director. A new director was not hired until May, 1988. The school district paid $ 14,854.08 to Dowler, which he used to [*143] purchase retirement credit for military service. PSERS concluded that the amount was a severance payment and did not include it as part of Dowler's final average salary in computing his retirement compensation. Dowler appealed the determination, asserting that he did not receive the benefit of his agreement because he was not given the opportunity to work half-time at full pay. The Board concluded that the money represented a severance payment and dismissed the appeal. The Commonwealth Court affirmed, stating HN4 Under [***17] the Code, all payments, other than for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. The claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the School District for personnel with the same educational and experience qualifications who are not terminating service. 153 Pa. Commw. at 115-16, 620 A.2d at 643. In furtherance of its responsibility to ensure the actuarial soundness of the retirement fund, the Board has determined that it is statutorily required to exclude nonregular remuneration, nonstandard salary, fringe benefits, bonuses, and severance payments from inclusion as compensation under the Retirement Code. The Board has developed the concepts of "standard salary" and "regular remuneration" as part of its understanding of compensation. Based upon its interpretation of the Retirement Code and accompanying regulations, HN5standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld [***18] for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary [*144] reduction Internal Revenue Code § 403(b) tax sheltered annuities. Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300, , 646 A.2d 645, 649-50 (1994) (emphasis supplied). The nonsalary reduction tax sheltered annuities purchased for Christiana during the four consecutive school years beginning in 1984-1985 were found by the Board to be nonstandard salary, nonregular remuneration and bonuses or fringe benefits under this analysis. 3 The $ 19,200 in annuity purchases, which the School District authorized after being advised of Christiana's impending retirement, were excluded as being part of a severance package. FOOTNOTES 3 Such annuities are distinguishable from the annuity contracts purchased under a deferred compensation program authorized under the Fiscal Code, Act of March 30, 1811, P.L. 145 as amended, 72 P.S. §§ 4521.1 - 4521.2. Income deferred under programs authorized thereunder is included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits. 72 P.S. § 4521.1(e). Christiana's assertion that the annuity purchases made on his behalf qualified for treatment as deferred compensation under this provision fails to recognize this distinction and is unsupportable. [***19] Christiana had received salary increases for the first three years after he became superintendent for the Upper St. Clair School District. Over a four-year period, Christiana's annual salary increased from $ 58,000 to $ 71,000. When his salary for 1984-1985 was under consideration, members of the School Board expressed concern that an additional increase would generate negative publicity. A newspaper reporter's comment that Christiana's salary at that time exceeded that of Pennsylvania's Governor was repeated in the headlines of a local newspaper. Unwilling to confront public scrutiny [**946] of a salary increase, the School Board elected to freeze Christiana's salary and purchased a single premium annuity for the purpose of purchasing prior years' seniority pension credit. Richard J. Mancini, the School District's business manager, testified that Christiana was the highest paid school superintendent in Western Pennsylvania, including the City of Pittsburgh [*145] School District which was ten times the size of Upper St. Clair's School District. Mancini indicated that the single premium annuity was considered as a way to handle adverse public reaction because responses to salary surveys would not [***20] include that amount. He considered the annuity purchases to be compensation. Nevertheless, the record establishes that the School District did not report the annuity payments to PSERS as compensation paid to Christiana and did not pay pickup contributions on those amounts. In fact, the School District continued to purchase single premium annuities even when salary increases were approved in subsequent years. In the 1987-1988 school year, Christiana's salary was increased to $ 74,000 and a single premium annuity in the amount of $ 9,500 was purchased. His salary was then increased to $ 80,000 in the following year in which an additional $ 9,500 was earmarked for an annuity purchase. With respect to the $ 19,200 annuity payment, the School Board's resolutions indicate that it was part of a comprehensive salary and benefits package developed after notice of Christiana's impending retirement. The School Board's initial resolution dated November 14, 1988, contemplated a salary increase to $ 80,000, payment for services of a financial planner not to exceed $ 2,000, continuing medical benefits for Christiana and his wife until age 65, the purchase of three years' pension credit for military [***21] service 4, and the $ 19,200 annuity purchase. On January 9, 1989, the resolution was rescinded. A second resolution was adopted which incorporated all of the earlier provisions, but split the $ 19,200 into two separate annuity purchases. FOOTNOTES 4 The amount expended by the School District for this purchase was approximately $ 21,000. Christiana did not seek to include this amount in the computation of his retirement benefits. The Commonwealth Court concluded that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary. As to the 1988-1989 salary and benefits package, the court found that the record was devoid of any evidence that the package was in accord with the [*146] District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten-year term of his employment. We find that the Commonwealth Court did not err in concluding that none of the annuity purchases were includable as compensation for purposes of [***22] determining Christiana's final average salary. There is substantial evidence in the record to support the Retirement Board's conclusions that the annuity payments were remuneration that was not based on the standard salary schedule for which Christiana was rendering service, and that the $ 19,200 payment was a severance payment. Therefore, under the Retirement Code and applicable regulations, the annuity payments were properly excluded from the computation of Christiana's final average salary. The order of the Commonwealth Court is affirmed. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case. 166 Pa. Commw. 300, *; 646 A.2d 645, **; 1994 Pa. Commw. LEXIS 436, *** ROBERT D. CHRISTIANA, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent NO. 1745 C.D. 1993 COMMONWEALTH COURT OF PENNSYLVANIA 166 Pa. Commw. 300; 646 A.2d 645; 1994 Pa. Commw. LEXIS 436 March 2, 1994, ARGUED July 28, 1994, FILED SUBSEQUENT HISTORY: Petition for Allowance of Appeal and/or Cross-Petition Granted December 7, 1994. PRIOR HISTORY: [***1] APPEALED From File No. 117-16-8296. State Agency, Public School Employes' Retirement Board. COUNSEL: Reed B. Day for petitioner. Louis Sheehan, Assistant Counsel, for respondent. JUDGES: BEFORE: HONORABLE DAVID W. CRAIG, President Judge, HONORABLE JAMES GARDNER COLINS, Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE SANDRA SCHULTZ NEWMAN, Judge. OPINION BY: JAMES R. KELLEY OPINION [*302] [**646] OPINION BY JUDGE KELLEY Robert D. Christiana, the former Superintendent of the Upper St. Clair School District (District) appeals from an order of the Public School Employes' Retirement Board (Board) which denied the inclusion of certain annuities purchased for Christiana by the District in the calculation of his final average salary under the Public School Employes' Retirement Code (Retirement Code). 1 FOOTNOTES 1 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101 - 8104. The Board made extensive findings of fact. Those findings relevant to the present [***2] appeal may be summarized as follows. Christiana was first employed by the District in July, 1979 at the initial salary of $ 52,000. Christiana's salaries for the subsequent school years were: 1980-1981 $ 58,000 1981-1982 $ 63,500 1982-1983 $ 65,723 1983-1984 $ 71,000 [*303] The following amounts were initially reported to the Public School Employes' Retirement System (PSERS) as Christiana's salary for the next five school years: 1984-1985 $ 71,000 1985-1986 $ 71,000 1986-1987 $ 71,000 1987-1988 $ 74,000 1988-1989 $ 80,000 In November 1988, the Upper St. Clair School Board (School Board) became aware of Christiana's intention to retire from his position at the end of the 1988-1989 school year. Christiana formally retired in August, 1989. At its November 14, 1988 meeting, the School Board adopted resolutions concerning the 1988-1989 salary and benefits payable to [**647] or for the benefit of Christiana. Among the resolutions was one which directed the District to provide Christiana "with an annuity or other equivalent payment at a cost to the District of $ 19,200 for the purposes of purchasing for the Superintendent pension credit under the State Retirement Plan [***3] … ." On January 9, 1989, the School Board met and rescinded its resolutions of November 14, 1988, adopting the following relevant resolutions in their place: RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities, shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further, RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania. 2 FOOTNOTES 2 The amount necessary to purchase the pension credit for military service was slightly in excess of $ 20,000; however, Christiana does not seek to characterize this expenditure as "compensation" under the Retirement Code. [***4] [*304] Pursuant to this resolution, the District purchased an annuity for Christiana in the amount of $ 9,500, but this expenditure was not directly reflected as Christiana's regular salary. 3 In contradistinction, the District in 1989 directly paid Christiana an additional $ 9,700 which increased his regular salary from $ 80,000 to $ 89,700. The $ 9,700 was separately accounted for and deducted from Christiana's take-home salary. The District purchased an annuity for Christiana with the payroll deductions. FOOTNOTES 3 This annuity, and all others subsequently referred to, were purchased by the District pursuant to Internal Revenue Code § 403(b) which grants special tax advantages to school employees with respect to annuities purchased for them by their tax-exempt employers. The District reported to PSERS a total of $ 8,730 in payroll deductions starting in March 1989, through and including June 1989, to reflect the additional compensation called for by the January 9, 1989 School Board resolution. 4 After review of the School Board [***5] meeting minutes and resolutions, on January 19, 1990, PSERS declined to accept or recognize the reported $ 8,730 for retirement credit purposes. FOOTNOTES 4 The $ 8,730 in payroll deductions reported to PSERS represented a $ 970 shortfall from the $ 9,700 deduction authorized by the School Board. By letter to PSERS dated February 9, 1990, the District resubmitted Christiana's reported salary for the 1988-1989 school year. The letter broadened the reporting period to encompass deductions made between January 1, 1989 and June 30, 1989, and adjusted the total salary accordingly. The letter read, in part: On the original 1st quarter report $ 970.00 of additional compensation was not reported in February, 1989. Further, in reviewing the report for the 4th quarter of 1988 we discovered that a payment of $ 9,500.00 to Dr. Christiana was also not reported. The District views these payments as merit increases, no different than merit pay which is paid in accordance with [*305] our negotiated agreement with the teachers of [***6] the School District. At the administrative hearing held September 11, 1991 before a hearing examiner to consider the issue of whether the $ 19,200 (comprised of $ 9,500 + $ 9,700) (Enhancement II) paid to Christiana in the 1988-1989 school year should be considered Retirement Code compensation for the purposes of calculating the final average salary, PSERS was made aware that additional remuneration was awarded to Christiana not only in his final year of service but also for the four previous school years (1984-1988) (Enhancement I). At the hearing, for the first time Christiana sought to add Enhancement I to the salaries previously reported to PSERS for the respective years for inclusion as Retirement Code compensation. [**648] According to the relevant School Board meeting minutes, the Enhancement I payments were intended to compensate Christiana "in lieu of salary increases" for the given years. The pertinent resolutions directed that the District purchase a single premium annuity for Christiana for the purposes of purchasing prior years seniority pension credit at the following amounts: 1984-1985 $ 5,000 1985-1986 $ 7,000 1986-1987 $ 10,000 1987-1988 $ 9,500 None [***7] of these amounts were reflected in Christiana's take-home pay, nor were the amounts formally reported to PSERS as salary. The hearing examiner recommended that Enhancement II be excluded from the calculation of Christiana's final average salary because the amounts were properly characterized as non-includable "severance payments" under the Retirement Code. The hearing examiner recommended further that Enhancement I be included in the calculation of final average salary because such amounts were properly characterized as includable Retirement Code compensation. Christiana appealed to the Board. Concerning Enhancement I, the Board concluded that Christiana's non-salary reduction tax shelter annuity payments [*306] may not be included in Retirement Code compensation because such payments are non-standard and/or non-regular remuneration as well as being bonuses and fringe benefits. Similarly, the Board concluded that the Enhancement II payments were components of a severance package none of which may be included in Retirement Code compensation because such payments must be characterized as non-includable bonuses and fringe benefits. It is from that order that Christiana now appeals to this court. [***8] On appeal, Christiana argues (1) that he is entitled to have his final average salary adjusted in order to receive retirement credit for single premium tax-sheltered annuities purchased for him by his employer in lieu of salary increases; (2) that PSERS may not sua sponte utilize statistical and public policy considerations when denying a claim for retirement benefits which were not raised before the hearing examiner; (3) that the Board denied Christiana due process by overruling the hearing examiner without providing Christiana reasonable notice and an opportunity to be heard; and, (4) that the Board denied Christiana due process by commingling the prosecutorial and adjudicative functions in determining Christiana's eligibility for benefits. We note that HN1 our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Finnegan v. Public School Employes' Retirement Board, 126 Pa. Commonwealth Ct. 584, 560 A.2d 848 (1989). Christiana first [***9] argues that the Board erred in failing to give effect to the relevant portions of the Fiscal Code of the Commonwealth 5 which expressly authorize the inclusion of tax-deferred income as credit for customary retirement plans. For five years, Christiana argues, the District purchased qualified tax-deferred annuities for Christiana in accordance with the HN2 Fiscal Code, which provides in relevant part: [*307] The state treasurer shall pay all grants, salaries, annuities, gratuities, and pensions established by law … the treasurer or other officer in charge of payrolls for any … political subdivision may make systematic investments in mutual funds, savings accounts or government bonds or make premium payments on life insurance or annuity contracts to any institution or company licensed and authorized … to accept deposits … for the purpose of funding a deferred compensation program for employes. 72 P.S. § 4521 (emphasis provided by Christiana). Moreover, Christiana asserts, the Fiscal Code authorizes the purchase of annuities through a deferred compensation program: [**649] HN3 (a) The governing body of any … political subdivision may, by contract, agree with any employe [***10] to defer, a portion of that employe's compensation and may subsequently, with the consent of the employe, purchase … annuity contracts … . * * * (e) Such deferred compensation program shall be in addition to, and not a part of, any other retirement benefit program provided by law for employes of the … political subdivision. Income deferred under programs authorized by this act shall continue to be included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits earned by any employe. 72 P.S. § 4521.1(a), (e), (emphasis provided by Christiana). Christiana maintains that these provisions of the Fiscal Code permit the use of tax-deferred annuity payments which may be purchased by deferring a portion of an employee's compensation. Such deferred income, Christiana contends, is then to be included in the computation of the employee's retirement and pension benefits. FOOTNOTES 5 Act of March 30, 1811, P.L. 145, as amended, 72 P.S. §§ 4521 - 4521.2. [***11] We cannot disagree with Christiana's reading of the Fiscal Code provision set forth above. However, his argument continues, [*308] advancing the assertion that the Board erred by characterizing the annuities as non-salary reduction purchases, or non-regular remuneration, thus rendering such payments ineligible for inclusion as compensation under its interpretation of the Retirement Code. HN4 Section 8102 of the Retirement Code sets forth the following relevant definitions: "Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding severance payments. "HN5 Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months … . "HN6 Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. "HN7 Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary [***12] salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service. 24 P.S. § 8102. HN8 Section 211.2 of Title 22 of the Pennsylvania Code expands upon the definition of Retirement Code compensation, in pertinent part: Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments [*309] which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. 22 Pa. Code § 211.2 (emphasis added). Accordingly, the Board has developed general concepts in understanding the Retirement Code's meaning of "compensation": "standard salary" and "regular remuneration". Based upon its interpretation of the Retirement Code and accompanying regulations, [***13] standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary reduction Internal Revenue Code § 403(b) tax sheltered [**650] annuities. Board's opinion, June 24, 1993, pp. 16-17 (emphasis added). Based on its interpretation of the guiding statutes and regulations, the Board characterized both Enhancement I and II payments to Christiana as non-standard salary, non-regular remuneration, bonuses and fringe benefits. Additionally, the Board characterized Enhancement II as part of a severance payment. Therefore, the Board denied the inclusion of both the Enhancement I and Enhancement II annuity payments in the calculation of Christiana's final average salary. HN9 The Board is charged with the execution and application of the Retirement Code and the Board's interpretation should not be overturned unless it is clear that such construction is erroneous. Panko v. Public School Employees' Retirement System, 89 Pa. Commonwealth Ct. 419, 492 A.2d 805 (1985). [***14] Accordingly, our review of the record suggests that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary. In each of the school years in which Christiana received an Enhancement I payment, the School Board adopted resolutions which directed that "in lieu of a salary increase" for that year, Christiana would benefit from the purchase of a single [*310] premium annuity for the purpose of purchasing prior years seniority pension credit. Christiana testified that the Enhancement I annuity payments were used as a means of rewarding Christiana without representing to the taxpayers of Upper St. Clair that his "salary" was substantially increased each year. (Original Record, Transcript of Hearing held September 11, 1991, at pp. 16-18.) Christiana testified he believed that his total compensation included his base reported salary, plus the additional amounts provided for the purchase of the annuities. (Id. at pp. 25-26.) The District's business manager at the time, Richard Mancini, testified that in his opinion "there was no doubt" the annuity payments were compensation. (Id. at p. 67.) Referring to the first annuity payment of [***15] $ 5,000 in 1984-1985, Dina J. Fulmer, a School Board member at the time testified as follows: Q: What did you understand this $ 5,000 to be? A: It was a -- well, a reward for his performance. It was a way of compensating him which would not get our name in the paper again. * * * Q: Why were the words in lieu of a salary increase chosen? A: Well, in lieu of means instead of or actually in place of being that lieu is the French word for place. Rather than increasing his base salary, we just decided to purchase this annuity. (Id. at pp. 83, 85.) However, regardless of Christiana's or the District's contradictory understanding, the record reveals that the District did not pay pickup contributions on the annuity purchases made on behalf of Christiana beginning with the 1984-1985 school year. 6 Further, in its reports to PSERS, the District did not [*311] report the Enhancement I payments as compensation paid to Christiana, nor did the District initially report any of the $ 19,200 Enhancement II payment to PSERS, as compensation or otherwise. Lastly, despite its apparent unwillingness to formally raise Christiana's base salary in the face of public opposition, Christiana [***16] did in fact receive two regular salary increases totalling $ 9,000 during the five year period under consideration. FOOTNOTES 6 Section 8102 of the Retirement Code defined "pickup contributions" as regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. With respect to Enhancement II alone, the record also supports the findings of the Board that the payments constituted part of a severance package. Christiana testified the Board was made aware of his intention to retire prior to their November, 1988 negotiations concerning his 1988-1989 salary and benefits. (Id. at 47-48.) What emerged from those deliberations were resolutions directing (i) that the District, "in recognition of the superior manner in which the Superintendent [**651] has performed his duties", pay Christiana additional compensation in the amount of $ 9,500 in 1988; and (ii) that the District pay Christiana an additional $ 9,700 at or prior to his retirement. (Original Record, [***17] PSERS Exhibit #10B.) While the record is silent as to whether Enhancement II was made contingent on Christiana's retirement, it is at the very least payment "in excess of the scheduled or customary" salary Christiana had enjoyed. Further, the final year salary and benefits package, of which Enhancement II was a part, included employer provided amounts for a financial planner, continuing medical coverage for Christiana and his wife, and a one-time offering of a salary reduction tax sheltered annuity. We find the record devoid of any evidence that Christiana's final year package was in accord with the District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten year term of his employment. HN10 The Retirement Code indicates that the General Assembly wishes to exclude from the computation of employees' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits. [*312] Dowler v. Public School Employes' Retirement Board, 153 Pa. Commonwealth Ct. 109, 620 A.2d 639 (1993). Christiana next argues that the Board erred by [***18] sua sponte utilizing financial statistics and public policy considerations not considered before the hearing examiner in denying Christiana's claim for retirement benefits. We disagree. HN11 The Board, and not the hearing examiner, is the final fact finder in these cases. Dowler. As such, the Board may take official notice of facts which are obvious and notorious to an expert in the agency's field and those facts contained in the agency's files. Falasco v. Pennsylvania Board of Probation and Parole, 104 Pa. Commonwealth Ct. 321, 521 A.2d 991 (1987). Next, Christiana asserts that in overruling the recommendations of the hearing examiner, the Board denied Christiana reasonable notice and an opportunity to be heard. Christiana contends that the Board made its determination in this matter without his participation and based its decision on facts and issues Christiana never had the opportunity to address. HN12 The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard." Christiana was presented [***19] with just these very opportunities and exploited them by filing a brief and reply brief prior to the hearing; attending the hearing and presenting evidence; and, filing exceptions to the hearing examiner's recommendations, followed by a response to the exceptions filed by PSERS. Our review of the record indicates that the Board studied the complete record, including the arguments advanced by Christiana, in reaching its decision. Lastly, Christiana raises a due process challenge concerning the alleged commingling of prosecutorial and adjudicative functions between the PSERS and the Board. However, Christiana failed to raise this issue before the Board. [*313] We have held that HN13 commingling claims may be waived if they are not raised before the administrative board. Newlin Corp. v. Department of Environmental Resources, 134 Pa. Commonwealth Ct. 396, 579 A.2d 996 (1990). 7 Unless a claimant can offer a convincing reason for failing to raise the claim before the Board, the commingling issue is waived. Dowler. Here, Christiana has not offered any explanation for failing to raise this issue below. FOOTNOTES 7 HN14 Pennsylvania Rule of Appellate Procedure 1551 states, in part, that: no question shall be heard or considered by the court which was not raised before the government unit except (1) Questions involving the validity of a statute … (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit. [***20] Accordingly, the order of the Board is affirmed. JAMES R. KELLEY, Judge [**652] ORDER NOW, this 28th day of July, 1994, the order of the Public School Employes' Retirement Board, dated June 24, 1993, is hereby affirmed. JAMES R. KELLEY, Judge 669 A.2d 1098, *; 1996 Pa. Commw. LEXIS 10, ** DR. VERNON R. WYLAND, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent NO. 566 C.D. 1995 COMMONWEALTH COURT OF PENNSYLVANIA 669 A.2d 1098; 1996 Pa. Commw. LEXIS 10 October 17, 1995, Argued January 8, 1996, Decided January 8, 1996, FILED SUBSEQUENT HISTORY: [**1] Petition for Allowance of Appeal Denied August 5, 1996, Reported at: 1996 Pa. LEXIS 1604. PRIOR HISTORY: APPEALED From No. File no. 480-24-6298. State Agency: Public School Employes' Retirement Board. DISPOSITION: Affirmed. COUNSEL: Dee Lafferty Pugh for petitioner. Louis Sheehan, Assistant Counsel, for respondent. JUDGES: BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE GEORGE T. KELTON, Senior Judge. OPINION BY: JAMES R. KELLEY OPINION [*1100] OPINION BY JUDGE KELLEY FILED: January 8, 1996 Dr. Vernon R. Wyland, the former Superintendent of the Garnet Valley School District (school district) appeals from the order of the Public School Employes' Retirement Board (board) adopting a hearing examiner's calculation of his final average salary used to determine his retirement benefits under the Public School Employees' Retirement Code (Retirement Code). 1 We affirm. FOOTNOTES 1 24 Pa.C.S. §§ 8101 - 8534. The relevant facts as found by the hearing examiner, and adopted by the board, may be summarized as follows. Wyland became a member of the Public School Employes' Retirement System (PSERS) by virtue of his employment [**2] with the Shaler Area School District on June 1, 1983. On July 1, 1987, he began service with the Garnet Valley School District as the District Superintendent for the 1987-1988 school year, at an annual salary of $ 65,000. On December 16, 1988, his annual salary for the 1988-1989 school year was increased to $ 70,200, retroactive to July 1, 1988. On March 28, 1990, Wyland's annual salary for the 1989-1990 school year was increased to $ 74,412, retroactive to July 1, 1989. Wyland's annual salary for the 1990-1991 school year was increased to $ 94,481 as of June 30, 1991. During the 1989-1990 school year, the school district experienced a prolonged labor action with intense teacher contract negotiations which continued until a new contract was signed in June of 1990. During the labor action, the teachers went out on strike for a period of 25 to 30 days. As a result of the contract negotiations and work stoppage, Wyland became the target of community pressures and antagonisms and he also became the subject of a vote of "no confidence" from the teachers. During the same period, the school district was engaged in a building program involving the construction of a new middle school building [**3] and other renovations. At that time, the Garnet Valley Board of School Directors (school board) was sensitive to the adverse public reaction to cost overruns associated with the building program. The teachers' contract negotiations and public reaction to the work stoppage contributed to a significant turnover in the composition of the school board. Six school board members changed as a result of resignations, and new members who were appointed came to the school board predisposed against Wyland as a result of the labor situation and the cost overruns. As a result, in November of 1990, Wyland was informed by the president of the school board that his contract would not be extended beyond its expiration date of June 30, 1991. Because the school board did not want to take public action on their decision, Wyland was asked if he would rather resign from his position. Wyland concluded that it would be best to resign as he felt it would be easier to tell prospective employers that he had resigned, rather than to say that his contract had not been extended. After negotiations regarding the terms of Wyland's resignation, on November 21, 1990, the president of the school board sent him a letter [**4] outlining the terms under which he could resign. The letter stated, inter alia: 3) The [School] Board guarantees the payment to you of your full salary through June 30, 1991. That salary will not be reduced between now and June 30, 1991. (a) Your annual raise, ordinarily effective January, 1991, will be deferred. As part of your salary, and in lieu of the annual raise in January, the [School] Board will purchase from you all unused vacation days credited to your account as of June 30, 1991 … . (b) Additionally, at the conclusion of your contract on June 30, 1991, the [School] Board, as part of your annual raise, will pay you for all unused sick days then credited to your account … . (c) Notwithstanding Paragraphs 3(a) and 3(b), you have agreed to reimburse the District for its share of the retirement cost allocable to the inclusion of that portion of your salary [*1101] represented by payments under Paragraph 3(a) and 3(b). Wyland accepted the proposed terms as outlined in the letter. On November 26, 1990, Wyland submitted his letter of resignation, contingent upon the school board's acceptance of the proposed terms in [**5] the president's letter. At its regular meeting on November 27, 1990, the school board accepted Wyland's resignation effective June 30, 1991. The school board did not take a public vote regarding the content and financial terms of the November 21, 1990 letter to avoid disclosure of their action. By letter dated June 20, 1991, Wyland submitted a memorandum to the school district's director of business and support services which summarized his accumulated vacation days and sick days. On June 25, 1991, Wyland and the school board president signed a letter of agreement which contained identical terms as outlined in the letter of November 21, 1990. On June 28, 1991, the school district issued Wyland a check in the amount of $ 20,069.40 as payment for his unused sick days, vacation days and comp days. The payroll document computing Wyland's vacation and sick days noted that the payment was to be considered compensation as per the November 21, 1990 letter of agreement. As required by the letter of agreement, Wyland reimbursed the school district for its share of the retirement costs allocable to the inclusion of the $ 20,069.40 payment. On June 28th, Wyland also entered into an agreement [**6] with the school district releasing the school district from any future liability concerning his resignation, in exchange for the payment of $ 20,069.40. The agreement referred to this payment as a "severance payment". Wyland was required to sign the release agreement in order to receive the $ 20,069.40 payment. He signed the release agreement and received the payment. On September 17, 1991, PSERS received a retirement application from Wyland with an effective date of retirement of June 29, 1991. PSERS contacted the school district regarding the $ 20,069.40 payment to Wyland. The school district sent PSERS a copy of the minutes of the school board meeting in which Wyland formally submitted his resignation, and indicated that no information from his personnel file could be released without his written consent. PSERS then informed the school district that in the absence of any written evidence concerning the reason for the payment, the $ 20,069.40 would not be used to calculate Wyland's retirement benefits. Wyland was sent copies of both letters from PSERS, but his consent for the release of information from his personnel file was never requested by PSERS. Initially, Wyland's retirement [**7] benefits were calculated by PSERS using a "final average salary" of $ 79,698. However, without the necessary documentation, the $ 20,069.40 was removed from PSERS' computation of his final average salary. As a result, his retirement benefits were recalculated using a final average salary of $ 73,008. By letter dated April 8, 1992, PSERS informed Wyland that his benefits had been recomputed, and that he was required to repay $ 7,619.03 that he had received in overpayment. By letter dated April 23, 1992, Wyland requested that PSERS include the $ 20,069.40 in its calculation of his final average salary. On July 1, 1992, PSERS notified Wyland that its Appeals Committee had denied his request. By letter dated July 28, 1992, Wyland requested an administrative hearing. On July 6, 1993, a hearing was scheduled and held before an independent hearing examiner. Based on the evidence presented at the hearing and the briefs and motions submitted by the parties, the hearing examiner concluded that the $ 20,069.40 paid to Wyland was a severance payment, and should not be considered in the calculation of his final average salary. In this regard, the hearing examiner specifically found the following: [**8] 1. At the time of the November 21, 1990 agreement, [the school district] was under a great deal of political pressure due to the recent teacher strike and cost overruns at the middle school project and [Wyland]'s raise was motivated by [the school district]'s need for [Wyland]'s cooperation. 2. The November 21, 1990 agreement was designed as a buyout of [Wyland]'s [*1102] vacation and sick days, both items regularly purchased by [the school district] at the end of a superintendent's term, and both items that would not normally be considered standard salary. 3. Both [Wyland] and [the school district] represented to the general public that [Wyland]'s pay for the 1990-1991 school year was $ 74,412.00, and it would be unfair to now allow [Wyland] to claim a higher pay for retirement purposes. 4. The November 21, 1990, agreement required [Wyland] to reimburse [the school district] for its share of the retirement cost allocable to the inclusion of the $ 20,069.40 payment into [Wyland]'s salary. With a regular salary increase this retirement cost would have been the responsibility of [the school district]. 5. [Wyland] was required [**9] to sign the June 28, 1991, release agreement in order to receive the $ 20,069.40 payment and the release agreement referred to the money as a severance payment. The hearing examiner also found, inter alia, that: the payment was not based on the standard salary schedule for which Wyland was rendering service; the payment was not made under the school district's scheduled or customary salary scale; and, the payment was made contingent upon Wyland's "retirement" as that term includes terminations which result in the immediate receipt of a pension. Both Wyland and PSERS filed exceptions to the hearing examiner's decision with the board. The board adopted the hearing examiner's findings of fact and conclusions of law, and affirmed the hearing examiner's decision. Wyland then filed a petition for review in this court appeal. On appeal, Wyland claims: (1) the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted severance pay rather than compensation, thereby reducing his final average salary used for the calculation of his retirement benefits; and (2) his due process rights were denied by PSERS' failure to request information from [**10] him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of the prosecutorial and adjudicative functions of PSERS and the board. We note that HN1 our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300, 646 A.2d 645 (Pa. Cmwlth. 1994); Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (Pa. Cmwlth. 1993). Because the board is charged with the execution and application of the Retirement Code, the board's interpretation should not be overturned unless it is clear that its construction of the Retirement Code is erroneous. Christiana. Wyland first argues that the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted a severance payment rather than compensation. In particular, Wyland claims that: there is no evidence that the increase was paid contingent upon his retirement; there is no substantial evidence [**11] that it was payment for his unused vacation or sick time; his resignation at the end of his contract term cannot be considered to be his "retirement"; the increase was consistent with the school district's compensation plan; and it made his salary comparable to other superintendents in Delaware County. HN2 Both the Retirement Code and the applicable regulations contain restrictions on the types of compensation that may be used in calculating an employee's final average salary. Hoerner v. Public School Employes' Retirement Board, 655 A.2d 207 (Pa. Cmwlth. 1995). The purpose of these restrictions is to ensure the actuarial soundness of the retirement fund by preventing employees from artificially inflating compensation as a means of receiving greater retirement benefits. Id. HN3 Section 8102 of the Retirement Code sets forth the following relevant definitions: "Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses [*1103] incidental to employment and excluding any severance payments. "Final average salary." The highest average compensation received as an active member during any three nonoverlapping [**12] periods of 12 consecutive months … . "Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. "Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service. 24 Pa.C.S. § 8102 (emphasis added). HN4 Title 22 Pa. Code § 211.2 also defines compensation as follows: Compensation - Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated [**13] in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. (Emphasis added.) HN5 Whether or not a payment must be considered a severance payment is a question of law. Dowler. Under the Retirement Code, all payments, other than those for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. Id. A claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the school district for personnel with the same educational and experience qualifications who are not terminating service. Id. In this case, both the hearing examiner and the board were presented with the letters of agreement between Wyland and the school board president dated November 21, 1990 and June 25, 1991 which stated, inter alia, that Wyland would be paid for all of his unused vacation and sick days in lieu of his annual raise, and that he would reimburse the school district for its share of the retirement cost allocable to the inclusion [**14] of this amount. The hearing examiner and the board were also presented with an agreement between Wyland and the school board president dated June 28, 1991 which stated that the parties had reached certain agreements concerning the termination of his employment and severance payments, the terms of which were embodied in the letter of June 25. The hearing examiner and the board were also presented with documentation that Wyland was paid $ 20,069.40 by the school district for 62 unused vacation and comp days, and 93 unused sick days. Clearly, such evidence is sufficient to support the board's conclusion that the $ 20,069.40 paid to Wyland constituted a severance payment as it is defined in the Retirement Code. Wyland is essentially asking this court to reweigh the conflicting evidence presented to the hearing examiner and the board, and to only accept that evidence which contradicts the plain meaning of the contents of the foregoing documents. However, HN6 questions of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of the fact finding agency, and are not usually matters for a reviewing court. [**15] Herzog v. Department of Environmental Resources, 166 Pa. Commw. 114, 645 A.2d 1381 (Pa. Cmwlth. 1994). Moreover, "this court 'may not substitute its judgment for that of an administrative agency acting within its discretion in the field of its expertise upon substantial evidence … .'" Dowler, 620 A.2d at 644 (citation omitted). The hearing examiner and the board rejected Wyland's claims regarding this evidence. On [*1104] appeal, we will not substitute our judgment nor reweigh this evidence. Wyland next claims that his right to due process and fundamental fairness was denied by PSERS' failure to formally request information from him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of prosecutorial and adjudicative functions by PSERS and the board. He first argues that his vested property rights to his pension were reduced by PSERS in an arbitrary manner, without notice and without a chance to respond, thereby violating his due process rights. HN7 The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard." [**16] Wyland was afforded these opportunities and exercised them before the hearing examiner and the board in this case. As the claimant in Hoerner, we note that Wyland has failed to cite any authority for the proposition that he was entitled to a "pre-reduction" hearing before PSERS in this case. The determination of Wyland's final average salary and the calculation of benefits is simply the result of a staff function performed by PSERS. Wyland could, and did, appeal the initial determination of his retirement benefits to PSERS' appeal committee and, ultimately, to the board. He filed a brief and a reply brief prior to the hearing before the hearing examiner, attended the hearing and presented evidence, and filed exceptions to the hearing examiner's determination with the board. HN8 As Wyland was given notice and a hearing prior to the final determination of his retirement benefits, and there exists no authority for a hearing in connection with PSERS' initial review, this claim is meritless. See Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994) (The initial denial of an insurance license application was the result of a staff function [**17] performed by the Pennsylvania Insurance Department; as this decision could be appealed to the Insurance Commissioner who would conduct a hearing before the final determination, applicants were not entitled to notice and a hearing prior to the initial denial of a license application). Finally, Wyland argues that the commingling of the prosecutorial and adjudicative functions by PSERS and the board is violative of his due process rights. In support of his position, Wyland relies on the case of Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1994). In Lyness, our Supreme Court stated: In the modern world of sprawling governmental entities akin to corporations it would be both unrealistic and counterproductive to insist that administrative agencies be forbidden from handling both prosecutorial and adjudicatory functions, where such roles are parcelled out and divided among distinct departments or boards. Efficiency and cost-effectiveness are certainly desirable ends. Indeed, each administrative board and judge is ultimately a subdivision of a single entity, the Commonwealth of Pennsylvania, but this does not render their collective work as prosecutors, investigators [**18] and adjudicators constitutionally infirm, nor create an imminent threat of prejudice. What our Constitution requires, however, is that if more than one function is reposed in a single administrative entity, walls of division be constructed which eliminate the threat or appearance of bias. … [A] "mere tangential involvement" of an adjudicator in the decision to initiate proceeding is not enough to raise the red flag of procedural due process. … Our constitutional notion of due process does not require a tabula rasa. … However, where the very entity or individuals involved in the decision to prosecute are "significantly involved" in the adjudicatory phase of the proceedings, a violation of due process occurs. Lyness, 529 Pa. at 546-47, 605 A.2d at 1209-10 (citations omitted). Thus, HN9 where "walls of division" are erected between the parties completing disparate functions within an administrative agency, no due process violation will be found. See, e.g., Stone & Edwards Insurance; [*1105] Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). Even if we were to adopt Wyland's position that the initial determination and review [**19] of his retirement benefits by PSERS and the board constitute "prosecutorial" and "adjudicative" functions, there has been no showing by Wyland of a commingling of these functions as proscribed by Lyness. Wyland's initial application was reviewed by a supervisor in the retirement processing section of PSERS. When he was dissatisfied with the determination of his benefits, Wyland requested PSERS' appeals committee to review his claim. When he was dissatisfied with the appeals committee's decision, Wyland submitted a request to the legal division of PSERS for a hearing before a hearing examiner. The independent hearing examiner conducted the hearing and made a recommendation to the board, which was the final arbiter. The board was not involved in the adjudication until Wyland appealed the decision of the hearing examiner to the board. Such a procedure does not involve the commingling of prosecutorial and adjudicative functions, and does not violate due process. See Duffield. Unquestionably, under Lyness, HN10 the mere possibility of bias under Pennsylvania law is sufficient to "raise the red flag" of the protections offered by the procedural guaranty of due process. Stone & [**20] Edwards Insurance. However, the appearance of bias proscribed by Lyness must be one which arises from an actual environment of commingled functions. Id. Wyland has not advanced a claim of the actual commingling of functions in the manner in which PSERS and the board conduct their investigations, prosecutions and adjudications. In the absence of any actual commingling, which would give rise to an appearance of bias, Wyland's unsubstantiated claim of commingling is meritless. Id. Accordingly, the order of the board is affirmed. JAMES R. KELLEY, Judge ORDER NOW, this 8th day of January, 1996, the order of the Public School Employes' Retirement Board, dated January 27, 1995, at No. 480-24-6298, is affirmed. JAMES R. KELLEY, Judge 543 Pa. 132, *; 669 A.2d 940, **; 1996 Pa. LEXIS 10, *** ROBERT D. CHRISTIANA, Appellant v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Appellee No. 75 W.D. Appeal Docket 1994 SUPREME COURT OF PENNSYLVANIA 543 Pa. 132; 669 A.2d 940; 1996 Pa. LEXIS 10 September 18, 1995, ARGUED January 18, 1996, DECIDED PRIOR HISTORY: [***1] Appeal from the Order of the Commonwealth Court Entered July 28, 1994, at No. 1745 C.D. 1993, Affirming the Opinion and Order of the Public School Employes' Retirement Board Dated June 24, 1993 at No. 117-16-8296. 166 Pa. Cmwlth. 300, 646 A.2d 645 (1994). JUDGES BELOW: CRAIG, COLINS, MCGINLEY, PELLEGRINI, FRIEDMAN, KELLEY, NEWMAN, JJ. (Cmwlth.). DISPOSITION: Affirmed. COUNSEL: Mr. Robert D. Christiana, APPELLANT, Pro se. For Public School Employes' Retirement Board, APPELLEE: Louis J. Sheehan, Esquire. For Attorney General's Office, APPELLEE: Ernest D. Preate, Jr., Esquire. JUDGES: MR. CHIEF JUSTICE ROBERT N. C. NIX, JR., FLAHERTY, ZAPPALA, CAPPY, CASTILLE, MONTEMURO, JJ. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case. OPINION BY: ZAPPALA OPINION [**940] [*134] OPINION JUSTICE ZAPPALA DECIDED: JANUARY 18, 1996 Appellant, Robert D. Christiana, is a former superintendent of the Upper St. Clair School District. Prior to his retirement, the School District had purchased certain annuities for Christiana. Christiana requested that the amounts paid for the annuities be included by the Public School Employes' Retirement System (PSERS) in its calculation of his final average salary for retirement purposes. After an administrative hearing, the Public School Employes' Retirement Board (Board) entered an order directing that the annuities were not to be included in the computation of his retirement benefits. The Commonwealth Court affirmed the Board's order in an en banc decision. We granted Christiana's petition for allowance [***2] of appeal and now affirm. The Board's opinion set forth detailed factual findings that are summarized as follows. Christiana was hired as the superintendent by the School District in July of 1979 at a starting salary of $ 52,000. He had been employed previously by school districts in [**941] Michigan and New York in various positions and had served as the superintendent of Pennsylvania's Springfield Township School District. Christiana's salary was increased over the next few years: 1980-1981 $ 58,000 1981-1982 $ 63,500 1982-1983 $ 65,723 1983-1984 $ 71,000 In the next five years, the School District reported the following figures as Christiana's salary to PSERS: [*135] 1984-1985 $ 71,000 1985-1986 $ 71,000 1986-1987 $ 71,000 1987-1988 $ 74,000 1988-1989 $ 80,000 Beginning with the 1984-1985 school year, the School District also expended funds to purchase single premium annuities for Christiana. The School District did not report the expenditures as part of Christiana's salary to PSERS or pay retirement contributions on those amounts. The minutes of Upper St. Clair School Board's meetings at which the annuity payments were addressed indicate [***3] that the annuity payments were to be made for purposes of purchasing prior years' seniority pension credit. 1 The minutes reflect the costs of the annuity purchases: FOOTNOTES 1 The minutes also indicate that the annuity payments were "in lieu of salary increases." For the school year 1987-1988, in which Christiana also received a salary increase of $ 3,000, the minutes state that "in lieu of any additional salary increase," the School District shall purchase a single premium annuity for purposes of purchasing prior years' seniority pension credit at a cost of $ 9,500. 1984-1985 $ 5,000 1985-1986 $ 7,000 1986-1987 $ 10,000 1987-1988 $ 9,500 By early November of 1988, the School Board was apprised of Christiana's intention to retire at the end of the 1988-1989 school year. On November 14, 1988, the School Board adopted a resolution relating to Christiana's anticipated retirement: RESOLVED, That for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further, [***4] RESOLVED, That commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits applicable to building administrators shall be continued for the Superintendent until his attaining age 65, and for his wife Nancy, until her attaining age 65, at District expense; and further, RESOLVED, That the District shall reimburse the Superintendent during the 1988-1989 school year for costs incurred [*136] for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further, RESOLVED, That the District shall purchase for the Superintendent three years' pension credit under the State Retirement Plan for his service in the United States Air Force as permitted by the laws of Pennsylvania; and further, RESOLVED, That the District shall provide the Superintendent with an annuity or other equivalent payment at a cost to the District of $ 19,200 for purposes of purchasing for the Superintendent pension credit under the State Retirement Plan for service as an educator in positions prior to his employment under the Pennsylvania retirement system, as permitted [***5] by the laws of Pennsylvania; . . . The annuity payment of $ 19,200 for the 1988-1989 school year became problematic due to changes in the federal tax code that were effective as of January 1, 1989. In response, the School Board rescinded the resolution of November 14, 1988, and adopted a second resolution on January 9, 1989. The resolution split the $ 19,200 payment into two separate payments of $ 9,500, which was backdated to the 1988 calendar year, and of $ 9,700, which was to be made at or prior to Christiana's retirement date of June 30, 1989: MOTION: By Wellington: WHEREAS, the Board of School Directors at its regular meeting on November 14, 1988, adopted certain resolutions relating to the salary and the benefits payable to or for the benefit of the Superintendent; and WHEREFORE, prior to the adoption of such resolutions it was represented to the Superintendent that the Board would consider [**942] modification to those resolutions after the Superintendent and the District had an opportunity to consult with their respective advisors, and such consultations have taken place and the Board is prepared to make certain modifications; NOW, THEREFORE, [***6] BE IT RESOLVED, that with the consent and agreement of the Superintendent, the resolutions [*137] adopted by the Board at its November 14, 1988, meeting relating to the salary and benefits payable to or for the benefit of the Superintendent be and are hereby rescinded and the following resolutions are adopted in their place and stead: RESOLVED, that for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further, RESOLVED, that commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits then applicable to Building Administrators shall be continued for the Superintendent until his attaining age 65, and for his wife, Nancy, until her attaining age 65, at District's expense . . . RESOLVED, that the District shall reimburse the Superintendent during the 1988-89 school year for costs incurred for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further, RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities, [***7] shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further, RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania. Pursuant to this resolution, the School District purchased an annuity in the amount of $ 9,500. The annuity payment was not reflected in Christiana's regular salary. The $ 9,700 payment made in 1989 was treated differently, however. Christiana received that payment directly, but the School District in turn reduced his monthly take-home pay and used the payroll [*138] deductions to purchase the 1989 annuity. From March of 1989 through June of 1989, the School District reported additional remuneration of $ 8,730 to PSERS that reflected the payroll changes. Christiana submitted an application for retirement to PSERS on August 8, 1989. On [***8] January 19, 1990, PSERS sent a letter advising the School District that after review of the School Board's minutes of November 14, 1988, and January 9, 1989, the $ 8,730 reported did not appear to be Christiana's normal salary and that the amount could not be used in calculating his retirement benefits. The School District was requested to submit a form to reflect this change in the reported salary. The School District did not comply with the request. Instead, a form was sent increasing the salary report by the sum of $ 970 -the difference between the $ 9,700 annuity purchase for 1989 and the $ 8,730 originally reported as salary. In a letter dated February 9, 1990, the School District's business manager noted the correction and indicated that in addition, the report for the fourth quarter of 1988 had failed to report a payment of $ 9,500 to Christiana. The letter stated that the School District viewed the payments as merit increases. On February 27, 1990, PSERS requested a copy of the School District's merit pay policy. The School District did not respond. On December 19, 1990, PSERS informed Christiana that his request to include the $ 9,500 for the 1987-1988 school year and the [***9] $ 9,700 for the 1988-1989 school year in its calculation of his final average salary for retirement purposes had been denied. An administrative hearing was held on September 11, 1991, before a hearing examiner to consider whether the $ 19,200 should be considered as compensation under the Public [**943] School Employees' Retirement Code. 2 PSERS learned then that the School District had purchased annuities for Christiana during the four previous school years (1984-1988). At the hearing, Christiana sought for the first time to add [*139] each of those annuity purchases to the salary amounts reported by the School District to PSERS. Christiana's take-home pay did not reflect those payments, and as noted earlier, the School District never included any of the annuity purchases in its salary reports to PSERS during those four years. FOOTNOTES 2 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101-8104. The hearing examiner recommended that the $ 19,200 should be excluded from the calculation of Christiana's final average salary [***10] because the amount was properly characterized as nonincludable "severance payments" under the Retirement Code. The hearing examiner also recommended that the four annuity payments made during 1984-1988 be included in the calculation of final average salary as compensation. The Board determined that Christiana had not properly raised the issue relating to the four annuity purchases in the earlier years, but nevertheless addressed the issue because there were sufficient facts on the record for its resolution. The Board concluded that the nonsalary reduction tax shelter annuity payments were not includable as Retirement Code compensation because they were nonstandard and/or nonregular remuneration as well as being bonuses and fringe benefits. The $ 19,200 annuity purchases in the 1988-1989 school year were found not to be includable in Retirement Code compensation because the payments were components of a severance package and were also characterized as nonincludable bonuses and fringe benefits. On June 24, 1993, the Board entered an order directing that none of the annuity purchases were to be included as Retirement Code Compensation. The Commonwealth Court affirmed the Board's order. [***11] HN1 On appeal from a final adjudication of an administrative board, our scope of review is limited to a determination of whether the board committed an error of law, whether there has been a violation of constitutional rights, or whether necessary factual findings are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). The issue raised in this appeal is whether the Board committed an error of law in determining that the annuity payments were not compensation [*140] for purposes of computing final average salary under the Retirement Code. Section 8102 of the Retirement Code defines the following relevant terms: HN2"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding any severance payments. "Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months with the compensation for part-time service being annualized on the basis of the fractional portion of the school year for which credit is received; [***12] except, if the employee was not a member for three such periods, the total compensation received as an active member annualized in the case of part-time service divided by the number of such periods of membership; and, in the case of a member with multiple service credit, the final average salary shall be determined by reference to compensation received by him as a school employee or a State employee or both. "Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. "Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational [**944] and experience qualifications who are not terminating service. 24 Pa.C.S.A. § 8102. The regulations promulgated under the Retirement Code further refine the definition of "compensation:" HN3Excludes a bonus, severance payment or other remuneration or similar emoluments received by a [***13] school employee during his school service not based on the standard salary [*141] schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. 22 Pa. Code § 211.2. The restrictive definitions of compensation under the Retirement Code and regulations reflect the Legislature's intention to preserve the actuarial integrity of the retirement fund by "excluding from the computation of employes' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits." Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (1993); Laurito v. Public School Employes' Retirement Board, 146 Pa. Commw. 514, 519, 606 A.2d 609, 611 (1992). In Laurito v. Public School Employes' Retirement Board, the Commonwealth Court affirmed [***14] a decision of the Retirement Board that refused to include a salary increase for the purposes of computation of retirement benefits for an elementary middle school principal. Dr. Angelo Laurito retired after 42 years of service with the Northern Cambria School District. Laurito's annual salary was negotiated each year with the school district. For the 1984-1985 school year, his salary was $ 32,600. On July 25, 1985, the school board awarded him a $ 16,000 "salary adjustment" for the 1985-1986 school year. In addition, Laurito was granted a leave of absence for the 1985-1986 school year, and his July 1, 1986 resignation for retirement purposes was accepted. PSERS notified Laurito that the $ 16,000 increase would not be included as compensation for retirement purposes. The Retirement Board upheld the determination, concluding that the claimed salary adjustment was a severance payment. The Commonwealth Court affirmed on appeal, finding that the [*142] record failed to establish that Laurito's salary increase was customary for an individual of similar experience within the school district. The court concluded that the school board's actions were tantamount to a severance agreement, stating [***15] We find especially persuasive the observation made by the board that the $ 16,000 payment in the final year of service provided a mechanism for the school district to recognize Laurito's devoted service, as well as to remedy the perceived inequity of a below-average salary throughout a working lifetime, by effectuating an inflated final salary for purposes of retirement benefits. 146 Pa. Commw. at 519-20, 606 A.2d at 611-12. In Dowler v. Public School Employes' Retirement Board, the Commonwealth Court held that a payment made pursuant to a retirement agreement was not compensation despite the personnel director's performance of consulting services. William Dowler was employed for over seventeen years as the personnel director at the West Chester Area School District before his retirement on July 1, 1988. In addition to his other duties, Dowler conducted all of the school district's labor negotiations in the first three years of his employment. The school district hired private contractors to conduct labor negotiations thereafter. On November 17, 1987, Dowler and the school district entered into an agreement concerning his retirement. Dowler was to be placed on a [***16] reduced work schedule from January 1, 1988, to July 1, 1988. He was to be compensated during that time as if he were working a five-day schedule and his duties would include training a replacement and assisting with negotiations. In addition, [**945] funds were to be given to Dowler on January 1, 1988, to purchase credit for his military services in an amount not to exceed $ 15,000. For the first time in Dowler's experience, three labor contracts expired at the end of June, 1988. Dowler assisted in the negotiations while working full-time as the personnel director. A new director was not hired until May, 1988. The school district paid $ 14,854.08 to Dowler, which he used to [*143] purchase retirement credit for military service. PSERS concluded that the amount was a severance payment and did not include it as part of Dowler's final average salary in computing his retirement compensation. Dowler appealed the determination, asserting that he did not receive the benefit of his agreement because he was not given the opportunity to work half-time at full pay. The Board concluded that the money represented a severance payment and dismissed the appeal. The Commonwealth Court affirmed, stating HN4 Under [***17] the Code, all payments, other than for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. The claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the School District for personnel with the same educational and experience qualifications who are not terminating service. 153 Pa. Commw. at 115-16, 620 A.2d at 643. In furtherance of its responsibility to ensure the actuarial soundness of the retirement fund, the Board has determined that it is statutorily required to exclude nonregular remuneration, nonstandard salary, fringe benefits, bonuses, and severance payments from inclusion as compensation under the Retirement Code. The Board has developed the concepts of "standard salary" and "regular remuneration" as part of its understanding of compensation. Based upon its interpretation of the Retirement Code and accompanying regulations, HN5standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld [***18] for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary [*144] reduction Internal Revenue Code § 403(b) tax sheltered annuities. Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300, , 646 A.2d 645, 649-50 (1994) (emphasis supplied). The nonsalary reduction tax sheltered annuities purchased for Christiana during the four consecutive school years beginning in 1984-1985 were found by the Board to be nonstandard salary, nonregular remuneration and bonuses or fringe benefits under this analysis. 3 The $ 19,200 in annuity purchases, which the School District authorized after being advised of Christiana's impending retirement, were excluded as being part of a severance package. FOOTNOTES 3 Such annuities are distinguishable from the annuity contracts purchased under a deferred compensation program authorized under the Fiscal Code, Act of March 30, 1811, P.L. 145 as amended, 72 P.S. §§ 4521.1 - 4521.2. Income deferred under programs authorized thereunder is included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits. 72 P.S. § 4521.1(e). Christiana's assertion that the annuity purchases made on his behalf qualified for treatment as deferred compensation under this provision fails to recognize this distinction and is unsupportable. [***19] Christiana had received salary increases for the first three years after he became superintendent for the Upper St. Clair School District. Over a four-year period, Christiana's annual salary increased from $ 58,000 to $ 71,000. When his salary for 1984-1985 was under consideration, members of the School Board expressed concern that an additional increase would generate negative publicity. A newspaper reporter's comment that Christiana's salary at that time exceeded that of Pennsylvania's Governor was repeated in the headlines of a local newspaper. Unwilling to confront public scrutiny [**946] of a salary increase, the School Board elected to freeze Christiana's salary and purchased a single premium annuity for the purpose of purchasing prior years' seniority pension credit. Richard J. Mancini, the School District's business manager, testified that Christiana was the highest paid school superintendent in Western Pennsylvania, including the City of Pittsburgh [*145] School District which was ten times the size of Upper St. Clair's School District. Mancini indicated that the single premium annuity was considered as a way to handle adverse public reaction because responses to salary surveys would not [***20] include that amount. He considered the annuity purchases to be compensation. Nevertheless, the record establishes that the School District did not report the annuity payments to PSERS as compensation paid to Christiana and did not pay pickup contributions on those amounts. In fact, the School District continued to purchase single premium annuities even when salary increases were approved in subsequent years. In the 1987-1988 school year, Christiana's salary was increased to $ 74,000 and a single premium annuity in the amount of $ 9,500 was purchased. His salary was then increased to $ 80,000 in the following year in which an additional $ 9,500 was earmarked for an annuity purchase. With respect to the $ 19,200 annuity payment, the School Board's resolutions indicate that it was part of a comprehensive salary and benefits package developed after notice of Christiana's impending retirement. The School Board's initial resolution dated November 14, 1988, contemplated a salary increase to $ 80,000, payment for services of a financial planner not to exceed $ 2,000, continuing medical benefits for Christiana and his wife until age 65, the purchase of three years' pension credit for military [***21] service 4, and the $ 19,200 annuity purchase. On January 9, 1989, the resolution was rescinded. A second resolution was adopted which incorporated all of the earlier provisions, but split the $ 19,200 into two separate annuity purchases. FOOTNOTES 4 The amount expended by the School District for this purchase was approximately $ 21,000. Christiana did not seek to include this amount in the computation of his retirement benefits. The Commonwealth Court concluded that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary. As to the 1988-1989 salary and benefits package, the court found that the record was devoid of any evidence that the package was in accord with the [*146] District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten-year term of his employment. We find that the Commonwealth Court did not err in concluding that none of the annuity purchases were includable as compensation for purposes of [***22] determining Christiana's final average salary. There is substantial evidence in the record to support the Retirement Board's conclusions that the annuity payments were remuneration that was not based on the standard salary schedule for which Christiana was rendering service, and that the $ 19,200 payment was a severance payment. Therefore, under the Retirement Code and applicable regulations, the annuity payments were properly excluded from the computation of Christiana's final average salary. The order of the Commonwealth Court is affirmed. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case. 166 Pa. Commw. 300, *; 646 A.2d 645, **; 1994 Pa. Commw. LEXIS 436, *** ROBERT D. CHRISTIANA, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent NO. 1745 C.D. 1993 COMMONWEALTH COURT OF PENNSYLVANIA 166 Pa. Commw. 300; 646 A.2d 645; 1994 Pa. Commw. LEXIS 436 March 2, 1994, ARGUED July 28, 1994, FILED SUBSEQUENT HISTORY: Petition for Allowance of Appeal and/or Cross-Petition Granted December 7, 1994. PRIOR HISTORY: [***1] APPEALED From File No. 117-16-8296. State Agency, Public School Employes' Retirement Board. COUNSEL: Reed B. Day for petitioner. Louis J. Sheehan, Assistant Counsel, for respondent. JUDGES: BEFORE: HONORABLE DAVID W. CRAIG, President Judge, HONORABLE JAMES GARDNER COLINS, Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE SANDRA SCHULTZ NEWMAN, Judge. OPINION BY: JAMES R. KELLEY OPINION [*302] [**646] OPINION BY JUDGE KELLEY Robert D. Christiana, the former Superintendent of the Upper St. Clair School District (District) appeals from an order of the Public School Employes' Retirement Board (Board) which denied the inclusion of certain annuities purchased for Christiana by the District in the calculation of his final average salary under the Public School Employes' Retirement Code (Retirement Code). 1 FOOTNOTES 1 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101 - 8104. The Board made extensive findings of fact. Those findings relevant to the present [***2] appeal may be summarized as follows. Christiana was first employed by the District in July, 1979 at the initial salary of $ 52,000. Christiana's salaries for the subsequent school years were: 1980-1981 $ 58,000 1981-1982 $ 63,500 1982-1983 $ 65,723 1983-1984 $ 71,000 [*303] The following amounts were initially reported to the Public School Employes' Retirement System (PSERS) as Christiana's salary for the next five school years: 1984-1985 $ 71,000 1985-1986 $ 71,000 1986-1987 $ 71,000 1987-1988 $ 74,000 1988-1989 $ 80,000 In November 1988, the Upper St. Clair School Board (School Board) became aware of Christiana's intention to retire from his position at the end of the 1988-1989 school year. Christiana formally retired in August, 1989. At its November 14, 1988 meeting, the School Board adopted resolutions concerning the 1988-1989 salary and benefits payable to [**647] or for the benefit of Christiana. Among the resolutions was one which directed the District to provide Christiana "with an annuity or other equivalent payment at a cost to the District of $ 19,200 for the purposes of purchasing for the Superintendent pension credit under the State Retirement Plan [***3] … ." On January 9, 1989, the School Board met and rescinded its resolutions of November 14, 1988, adopting the following relevant resolutions in their place: RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities, shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further, RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania. 2 FOOTNOTES 2 The amount necessary to purchase the pension credit for military service was slightly in excess of $ 20,000; however, Christiana does not seek to characterize this expenditure as "compensation" under the Retirement Code. [***4] [*304] Pursuant to this resolution, the District purchased an annuity for Christiana in the amount of $ 9,500, but this expenditure was not directly reflected as Christiana's regular salary. 3 In contradistinction, the District in 1989 directly paid Christiana an additional $ 9,700 which increased his regular salary from $ 80,000 to $ 89,700. The $ 9,700 was separately accounted for and deducted from Christiana's take-home salary. The District purchased an annuity for Christiana with the payroll deductions. FOOTNOTES 3 This annuity, and all others subsequently referred to, were purchased by the District pursuant to Internal Revenue Code § 403(b) which grants special tax advantages to school employees with respect to annuities purchased for them by their tax-exempt employers. The District reported to PSERS a total of $ 8,730 in payroll deductions starting in March 1989, through and including June 1989, to reflect the additional compensation called for by the January 9, 1989 School Board resolution. 4 After review of the School Board [***5] meeting minutes and resolutions, on January 19, 1990, PSERS declined to accept or recognize the reported $ 8,730 for retirement credit purposes. FOOTNOTES 4 The $ 8,730 in payroll deductions reported to PSERS represented a $ 970 shortfall from the $ 9,700 deduction authorized by the School Board. By letter to PSERS dated February 9, 1990, the District resubmitted Christiana's reported salary for the 1988-1989 school year. The letter broadened the reporting period to encompass deductions made between January 1, 1989 and June 30, 1989, and adjusted the total salary accordingly. The letter read, in part: On the original 1st quarter report $ 970.00 of additional compensation was not reported in February, 1989. Further, in reviewing the report for the 4th quarter of 1988 we discovered that a payment of $ 9,500.00 to Dr. Christiana was also not reported. The District views these payments as merit increases, no different than merit pay which is paid in accordance with [*305] our negotiated agreement with the teachers of [***6] the School District. At the administrative hearing held September 11, 1991 before a hearing examiner to consider the issue of whether the $ 19,200 (comprised of $ 9,500 + $ 9,700) (Enhancement II) paid to Christiana in the 1988-1989 school year should be considered Retirement Code compensation for the purposes of calculating the final average salary, PSERS was made aware that additional remuneration was awarded to Christiana not only in his final year of service but also for the four previous school years (1984-1988) (Enhancement I). At the hearing, for the first time Christiana sought to add Enhancement I to the salaries previously reported to PSERS for the respective years for inclusion as Retirement Code compensation. [**648] According to the relevant School Board meeting minutes, the Enhancement I payments were intended to compensate Christiana "in lieu of salary increases" for the given years. The pertinent resolutions directed that the District purchase a single premium annuity for Christiana for the purposes of purchasing prior years seniority pension credit at the following amounts: 1984-1985 $ 5,000 1985-1986 $ 7,000 1986-1987 $ 10,000 1987-1988 $ 9,500 None [***7] of these amounts were reflected in Christiana's take-home pay, nor were the amounts formally reported to PSERS as salary. The hearing examiner recommended that Enhancement II be excluded from the calculation of Christiana's final average salary because the amounts were properly characterized as non-includable "severance payments" under the Retirement Code. The hearing examiner recommended further that Enhancement I be included in the calculation of final average salary because such amounts were properly characterized as includable Retirement Code compensation. Christiana appealed to the Board. Concerning Enhancement I, the Board concluded that Christiana's non-salary reduction tax shelter annuity payments [*306] may not be included in Retirement Code compensation because such payments are non-standard and/or non-regular remuneration as well as being bonuses and fringe benefits. Similarly, the Board concluded that the Enhancement II payments were components of a severance package none of which may be included in Retirement Code compensation because such payments must be characterized as non-includable bonuses and fringe benefits. It is from that order that Christiana now appeals to this court. [***8] On appeal, Christiana argues (1) that he is entitled to have his final average salary adjusted in order to receive retirement credit for single premium tax-sheltered annuities purchased for him by his employer in lieu of salary increases; (2) that PSERS may not sua sponte utilize statistical and public policy considerations when denying a claim for retirement benefits which were not raised before the hearing examiner; (3) that the Board denied Christiana due process by overruling the hearing examiner without providing Christiana reasonable notice and an opportunity to be heard; and, (4) that the Board denied Christiana due process by commingling the prosecutorial and adjudicative functions in determining Christiana's eligibility for benefits. We note that HN1 our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Finnegan v. Public School Employes' Retirement Board, 126 Pa. Commonwealth Ct. 584, 560 A.2d 848 (1989). Christiana first [***9] argues that the Board erred in failing to give effect to the relevant portions of the Fiscal Code of the Commonwealth 5 which expressly authorize the inclusion of tax-deferred income as credit for customary retirement plans. For five years, Christiana argues, the District purchased qualified tax-deferred annuities for Christiana in accordance with the HN2 Fiscal Code, which provides in relevant part: [*307] The state treasurer shall pay all grants, salaries, annuities, gratuities, and pensions established by law … the treasurer or other officer in charge of payrolls for any … political subdivision may make systematic investments in mutual funds, savings accounts or government bonds or make premium payments on life insurance or annuity contracts to any institution or company licensed and authorized … to accept deposits … for the purpose of funding a deferred compensation program for employes. 72 P.S. § 4521 (emphasis provided by Christiana). Moreover, Christiana asserts, the Fiscal Code authorizes the purchase of annuities through a deferred compensation program: [**649] HN3 (a) The governing body of any … political subdivision may, by contract, agree with any employe [***10] to defer, a portion of that employe's compensation and may subsequently, with the consent of the employe, purchase … annuity contracts … . * * * (e) Such deferred compensation program shall be in addition to, and not a part of, any other retirement benefit program provided by law for employes of the … political subdivision. Income deferred under programs authorized by this act shall continue to be included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits earned by any employe. 72 P.S. § 4521.1(a), (e), (emphasis provided by Christiana). Christiana maintains that these provisions of the Fiscal Code permit the use of tax-deferred annuity payments which may be purchased by deferring a portion of an employee's compensation. Such deferred income, Christiana contends, is then to be included in the computation of the employee's retirement and pension benefits. FOOTNOTES 5 Act of March 30, 1811, P.L. 145, as amended, 72 P.S. §§ 4521 - 4521.2. [***11] We cannot disagree with Christiana's reading of the Fiscal Code provision set forth above. However, his argument continues, [*308] advancing the assertion that the Board erred by characterizing the annuities as non-salary reduction purchases, or non-regular remuneration, thus rendering such payments ineligible for inclusion as compensation under its interpretation of the Retirement Code. HN4 Section 8102 of the Retirement Code sets forth the following relevant definitions: "Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding severance payments. "HN5 Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months … . "HN6 Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. "HN7 Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary [***12] salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service. 24 P.S. § 8102. HN8 Section 211.2 of Title 22 of the Pennsylvania Code expands upon the definition of Retirement Code compensation, in pertinent part: Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments [*309] which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. 22 Pa. Code § 211.2 (emphasis added). Accordingly, the Board has developed general concepts in understanding the Retirement Code's meaning of "compensation": "standard salary" and "regular remuneration". Based upon its interpretation of the Retirement Code and accompanying regulations, [***13] standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary reduction Internal Revenue Code § 403(b) tax sheltered [**650] annuities. Board's opinion, June 24, 1993, pp. 16-17 (emphasis added). Based on its interpretation of the guiding statutes and regulations, the Board characterized both Enhancement I and II payments to Christiana as non-standard salary, non-regular remuneration, bonuses and fringe benefits. Additionally, the Board characterized Enhancement II as part of a severance payment. Therefore, the Board denied the inclusion of both the Enhancement I and Enhancement II annuity payments in the calculation of Christiana's final average salary. HN9 The Board is charged with the execution and application of the Retirement Code and the Board's interpretation should not be overturned unless it is clear that such construction is erroneous. Panko v. Public School Employees' Retirement System, 89 Pa. Commonwealth Ct. 419, 492 A.2d 805 (1985). [***14] Accordingly, our review of the record suggests that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary. In each of the school years in which Christiana received an Enhancement I payment, the School Board adopted resolutions which directed that "in lieu of a salary increase" for that year, Christiana would benefit from the purchase of a single [*310] premium annuity for the purpose of purchasing prior years seniority pension credit. Christiana testified that the Enhancement I annuity payments were used as a means of rewarding Christiana without representing to the taxpayers of Upper St. Clair that his "salary" was substantially increased each year. (Original Record, Transcript of Hearing held September 11, 1991, at pp. 16-18.) Christiana testified he believed that his total compensation included his base reported salary, plus the additional amounts provided for the purchase of the annuities. (Id. at pp. 25-26.) The District's business manager at the time, Richard Mancini, testified that in his opinion "there was no doubt" the annuity payments were compensation. (Id. at p. 67.) Referring to the first annuity payment of [***15] $ 5,000 in 1984-1985, Dina J. Fulmer, a School Board member at the time testified as follows: Q: What did you understand this $ 5,000 to be? A: It was a -- well, a reward for his performance. It was a way of compensating him which would not get our name in the paper again. * * * Q: Why were the words in lieu of a salary increase chosen? A: Well, in lieu of means instead of or actually in place of being that lieu is the French word for place. Rather than increasing his base salary, we just decided to purchase this annuity. (Id. at pp. 83, 85.) However, regardless of Christiana's or the District's contradictory understanding, the record reveals that the District did not pay pickup contributions on the annuity purchases made on behalf of Christiana beginning with the 1984-1985 school year. 6 Further, in its reports to PSERS, the District did not [*311] report the Enhancement I payments as compensation paid to Christiana, nor did the District initially report any of the $ 19,200 Enhancement II payment to PSERS, as compensation or otherwise. Lastly, despite its apparent unwillingness to formally raise Christiana's base salary in the face of public opposition, Christiana [***16] did in fact receive two regular salary increases totalling $ 9,000 during the five year period under consideration. FOOTNOTES 6 Section 8102 of the Retirement Code defined "pickup contributions" as regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. With respect to Enhancement II alone, the record also supports the findings of the Board that the payments constituted part of a severance package. Christiana testified the Board was made aware of his intention to retire prior to their November, 1988 negotiations concerning his 1988-1989 salary and benefits. (Id. at 47-48.) What emerged from those deliberations were resolutions directing (i) that the District, "in recognition of the superior manner in which the Superintendent [**651] has performed his duties", pay Christiana additional compensation in the amount of $ 9,500 in 1988; and (ii) that the District pay Christiana an additional $ 9,700 at or prior to his retirement. (Original Record, [***17] PSERS Exhibit #10B.) While the record is silent as to whether Enhancement II was made contingent on Christiana's retirement, it is at the very least payment "in excess of the scheduled or customary" salary Christiana had enjoyed. Further, the final year salary and benefits package, of which Enhancement II was a part, included employer provided amounts for a financial planner, continuing medical coverage for Christiana and his wife, and a one-time offering of a salary reduction tax sheltered annuity. We find the record devoid of any evidence that Christiana's final year package was in accord with the District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten year term of his employment. HN10 The Retirement Code indicates that the General Assembly wishes to exclude from the computation of employees' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits. [*312] Dowler v. Public School Employes' Retirement Board, 153 Pa. Commonwealth Ct. 109, 620 A.2d 639 (1993). Christiana next argues that the Board erred by [***18] sua sponte utilizing financial statistics and public policy considerations not considered before the hearing examiner in denying Christiana's claim for retirement benefits. We disagree. HN11 The Board, and not the hearing examiner, is the final fact finder in these cases. Dowler. As such, the Board may take official notice of facts which are obvious and notorious to an expert in the agency's field and those facts contained in the agency's files. Falasco v. Pennsylvania Board of Probation and Parole, 104 Pa. Commonwealth Ct. 321, 521 A.2d 991 (1987). Next, Christiana asserts that in overruling the recommendations of the hearing examiner, the Board denied Christiana reasonable notice and an opportunity to be heard. Christiana contends that the Board made its determination in this matter without his participation and based its decision on facts and issues Christiana never had the opportunity to address. HN12 The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard." Christiana was presented [***19] with just these very opportunities and exploited them by filing a brief and reply brief prior to the hearing; attending the hearing and presenting evidence; and, filing exceptions to the hearing examiner's recommendations, followed by a response to the exceptions filed by PSERS. Our review of the record indicates that the Board studied the complete record, including the arguments advanced by Christiana, in reaching its decision. Lastly, Christiana raises a due process challenge concerning the alleged commingling of prosecutorial and adjudicative functions between the PSERS and the Board. However, Christiana failed to raise this issue before the Board. [*313] We have held that HN13 commingling claims may be waived if they are not raised before the administrative board. Newlin Corp. v. Department of Environmental Resources, 134 Pa. Commonwealth Ct. 396, 579 A.2d 996 (1990). 7 Unless a claimant can offer a convincing reason for failing to raise the claim before the Board, the commingling issue is waived. Dowler. Here, Christiana has not offered any explanation for failing to raise this issue below. FOOTNOTES 7 HN14 Pennsylvania Rule of Appellate Procedure 1551 states, in part, that: no question shall be heard or considered by the court which was not raised before the government unit except (1) Questions involving the validity of a statute … (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit. [***20] Accordingly, the order of the Board is affirmed. JAMES R. KELLEY, Judge [**652] ORDER NOW, this 28th day of July, 1994, the order of the Public School Employes' Retirement Board, dated June 24, 1993, is hereby affirmed. JAMES R. KELLEY, Judge 669 A.2d 1098, *; 1996 Pa. Commw. LEXIS 10, ** DR. VERNON R. WYLAND, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent NO. 566 C.D. 1995 COMMONWEALTH COURT OF PENNSYLVANIA 669 A.2d 1098; 1996 Pa. Commw. LEXIS 10 October 17, 1995, Argued January 8, 1996, Decided January 8, 1996, FILED SUBSEQUENT HISTORY: [**1] Petition for Allowance of Appeal Denied August 5, 1996, Reported at: 1996 Pa. LEXIS 1604. PRIOR HISTORY: APPEALED From No. File no. 480-24-6298. State Agency: Public School Employes' Retirement Board. DISPOSITION: Affirmed. COUNSEL: Dee Lafferty Pugh for petitioner. Louis J. Sheehan, Assistant Counsel, for respondent. JUDGES: BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE GEORGE T. KELTON, Senior Judge. OPINION BY: JAMES R. KELLEY OPINION [*1100] OPINION BY JUDGE KELLEY FILED: January 8, 1996 Dr. Vernon R. Wyland, the former Superintendent of the Garnet Valley School District (school district) appeals from the order of the Public School Employes' Retirement Board (board) adopting a hearing examiner's calculation of his final average salary used to determine his retirement benefits under the Public School Employees' Retirement Code (Retirement Code). 1 We affirm. FOOTNOTES 1 24 Pa.C.S. §§ 8101 - 8534. The relevant facts as found by the hearing examiner, and adopted by the board, may be summarized as follows. Wyland became a member of the Public School Employes' Retirement System (PSERS) by virtue of his employment [**2] with the Shaler Area School District on June 1, 1983. On July 1, 1987, he began service with the Garnet Valley School District as the District Superintendent for the 1987-1988 school year, at an annual salary of $ 65,000. On December 16, 1988, his annual salary for the 1988-1989 school year was increased to $ 70,200, retroactive to July 1, 1988. On March 28, 1990, Wyland's annual salary for the 1989-1990 school year was increased to $ 74,412, retroactive to July 1, 1989. Wyland's annual salary for the 1990-1991 school year was increased to $ 94,481 as of June 30, 1991. During the 1989-1990 school year, the school district experienced a prolonged labor action with intense teacher contract negotiations which continued until a new contract was signed in June of 1990. During the labor action, the teachers went out on strike for a period of 25 to 30 days. As a result of the contract negotiations and work stoppage, Wyland became the target of community pressures and antagonisms and he also became the subject of a vote of "no confidence" from the teachers. During the same period, the school district was engaged in a building program involving the construction of a new middle school building [**3] and other renovations. At that time, the Garnet Valley Board of School Directors (school board) was sensitive to the adverse public reaction to cost overruns associated with the building program. The teachers' contract negotiations and public reaction to the work stoppage contributed to a significant turnover in the composition of the school board. Six school board members changed as a result of resignations, and new members who were appointed came to the school board predisposed against Wyland as a result of the labor situation and the cost overruns. As a result, in November of 1990, Wyland was informed by the president of the school board that his contract would not be extended beyond its expiration date of June 30, 1991. Because the school board did not want to take public action on their decision, Wyland was asked if he would rather resign from his position. Wyland concluded that it would be best to resign as he felt it would be easier to tell prospective employers that he had resigned, rather than to say that his contract had not been extended. After negotiations regarding the terms of Wyland's resignation, on November 21, 1990, the president of the school board sent him a letter [**4] outlining the terms under which he could resign. The letter stated, inter alia: 3) The [School] Board guarantees the payment to you of your full salary through June 30, 1991. That salary will not be reduced between now and June 30, 1991. (a) Your annual raise, ordinarily effective January, 1991, will be deferred. As part of your salary, and in lieu of the annual raise in January, the [School] Board will purchase from you all unused vacation days credited to your account as of June 30, 1991 … . (b) Additionally, at the conclusion of your contract on June 30, 1991, the [School] Board, as part of your annual raise, will pay you for all unused sick days then credited to your account … . (c) Notwithstanding Paragraphs 3(a) and 3(b), you have agreed to reimburse the District for its share of the retirement cost allocable to the inclusion of that portion of your salary [*1101] represented by payments under Paragraph 3(a) and 3(b). Wyland accepted the proposed terms as outlined in the letter. On November 26, 1990, Wyland submitted his letter of resignation, contingent upon the school board's acceptance of the proposed terms in [**5] the president's letter. At its regular meeting on November 27, 1990, the school board accepted Wyland's resignation effective June 30, 1991. The school board did not take a public vote regarding the content and financial terms of the November 21, 1990 letter to avoid disclosure of their action. By letter dated June 20, 1991, Wyland submitted a memorandum to the school district's director of business and support services which summarized his accumulated vacation days and sick days. On June 25, 1991, Wyland and the school board president signed a letter of agreement which contained identical terms as outlined in the letter of November 21, 1990. On June 28, 1991, the school district issued Wyland a check in the amount of $ 20,069.40 as payment for his unused sick days, vacation days and comp days. The payroll document computing Wyland's vacation and sick days noted that the payment was to be considered compensation as per the November 21, 1990 letter of agreement. As required by the letter of agreement, Wyland reimbursed the school district for its share of the retirement costs allocable to the inclusion of the $ 20,069.40 payment. On June 28th, Wyland also entered into an agreement [**6] with the school district releasing the school district from any future liability concerning his resignation, in exchange for the payment of $ 20,069.40. The agreement referred to this payment as a "severance payment". Wyland was required to sign the release agreement in order to receive the $ 20,069.40 payment. He signed the release agreement and received the payment. On September 17, 1991, PSERS received a retirement application from Wyland with an effective date of retirement of June 29, 1991. PSERS contacted the school district regarding the $ 20,069.40 payment to Wyland. The school district sent PSERS a copy of the minutes of the school board meeting in which Wyland formally submitted his resignation, and indicated that no information from his personnel file could be released without his written consent. PSERS then informed the school district that in the absence of any written evidence concerning the reason for the payment, the $ 20,069.40 would not be used to calculate Wyland's retirement benefits. Wyland was sent copies of both letters from PSERS, but his consent for the release of information from his personnel file was never requested by PSERS. Initially, Wyland's retirement [**7] benefits were calculated by PSERS using a "final average salary" of $ 79,698. However, without the necessary documentation, the $ 20,069.40 was removed from PSERS' computation of his final average salary. As a result, his retirement benefits were recalculated using a final average salary of $ 73,008. By letter dated April 8, 1992, PSERS informed Wyland that his benefits had been recomputed, and that he was required to repay $ 7,619.03 that he had received in overpayment. By letter dated April 23, 1992, Wyland requested that PSERS include the $ 20,069.40 in its calculation of his final average salary. On July 1, 1992, PSERS notified Wyland that its Appeals Committee had denied his request. By letter dated July 28, 1992, Wyland requested an administrative hearing. On July 6, 1993, a hearing was scheduled and held before an independent hearing examiner. Based on the evidence presented at the hearing and the briefs and motions submitted by the parties, the hearing examiner concluded that the $ 20,069.40 paid to Wyland was a severance payment, and should not be considered in the calculation of his final average salary. In this regard, the hearing examiner specifically found the following: [**8] 1. At the time of the November 21, 1990 agreement, [the school district] was under a great deal of political pressure due to the recent teacher strike and cost overruns at the middle school project and [Wyland]'s raise was motivated by [the school district]'s need for [Wyland]'s cooperation. 2. The November 21, 1990 agreement was designed as a buyout of [Wyland]'s [*1102] vacation and sick days, both items regularly purchased by [the school district] at the end of a superintendent's term, and both items that would not normally be considered standard salary. 3. Both [Wyland] and [the school district] represented to the general public that [Wyland]'s pay for the 1990-1991 school year was $ 74,412.00, and it would be unfair to now allow [Wyland] to claim a higher pay for retirement purposes. 4. The November 21, 1990, agreement required [Wyland] to reimburse [the school district] for its share of the retirement cost allocable to the inclusion of the $ 20,069.40 payment into [Wyland]'s salary. With a regular salary increase this retirement cost would have been the responsibility of [the school district]. 5. [Wyland] was required [**9] to sign the June 28, 1991, release agreement in order to receive the $ 20,069.40 payment and the release agreement referred to the money as a severance payment. The hearing examiner also found, inter alia, that: the payment was not based on the standard salary schedule for which Wyland was rendering service; the payment was not made under the school district's scheduled or customary salary scale; and, the payment was made contingent upon Wyland's "retirement" as that term includes terminations which result in the immediate receipt of a pension. Both Wyland and PSERS filed exceptions to the hearing examiner's decision with the board. The board adopted the hearing examiner's findings of fact and conclusions of law, and affirmed the hearing examiner's decision. Wyland then filed a petition for review in this court appeal. On appeal, Wyland claims: (1) the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted severance pay rather than compensation, thereby reducing his final average salary used for the calculation of his retirement benefits; and (2) his due process rights were denied by PSERS' failure to request information from [**10] him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of the prosecutorial and adjudicative functions of PSERS and the board. We note that HN1 our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300, 646 A.2d 645 (Pa. Cmwlth. 1994); Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (Pa. Cmwlth. 1993). Because the board is charged with the execution and application of the Retirement Code, the board's interpretation should not be overturned unless it is clear that its construction of the Retirement Code is erroneous. Christiana. Wyland first argues that the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted a severance payment rather than compensation. In particular, Wyland claims that: there is no evidence that the increase was paid contingent upon his retirement; there is no substantial evidence [**11] that it was payment for his unused vacation or sick time; his resignation at the end of his contract term cannot be considered to be his "retirement"; the increase was consistent with the school district's compensation plan; and it made his salary comparable to other superintendents in Delaware County. HN2 Both the Retirement Code and the applicable regulations contain restrictions on the types of compensation that may be used in calculating an employee's final average salary. Hoerner v. Public School Employes' Retirement Board, 655 A.2d 207 (Pa. Cmwlth. 1995). The purpose of these restrictions is to ensure the actuarial soundness of the retirement fund by preventing employees from artificially inflating compensation as a means of receiving greater retirement benefits. Id. HN3 Section 8102 of the Retirement Code sets forth the following relevant definitions: "Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses [*1103] incidental to employment and excluding any severance payments. "Final average salary." The highest average compensation received as an active member during any three nonoverlapping [**12] periods of 12 consecutive months … . "Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983. "Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service. 24 Pa.C.S. § 8102 (emphasis added). HN4 Title 22 Pa. Code § 211.2 also defines compensation as follows: Compensation - Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated [**13] in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. (Emphasis added.) HN5 Whether or not a payment must be considered a severance payment is a question of law. Dowler. Under the Retirement Code, all payments, other than those for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. Id. A claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the school district for personnel with the same educational and experience qualifications who are not terminating service. Id. In this case, both the hearing examiner and the board were presented with the letters of agreement between Wyland and the school board president dated November 21, 1990 and June 25, 1991 which stated, inter alia, that Wyland would be paid for all of his unused vacation and sick days in lieu of his annual raise, and that he would reimburse the school district for its share of the retirement cost allocable to the inclusion [**14] of this amount. The hearing examiner and the board were also presented with an agreement between Wyland and the school board president dated June 28, 1991 which stated that the parties had reached certain agreements concerning the termination of his employment and severance payments, the terms of which were embodied in the letter of June 25. The hearing examiner and the board were also presented with documentation that Wyland was paid $ 20,069.40 by the school district for 62 unused vacation and comp days, and 93 unused sick days. Clearly, such evidence is sufficient to support the board's conclusion that the $ 20,069.40 paid to Wyland constituted a severance payment as it is defined in the Retirement Code. Wyland is essentially asking this court to reweigh the conflicting evidence presented to the hearing examiner and the board, and to only accept that evidence which contradicts the plain meaning of the contents of the foregoing documents. However, HN6 questions of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of the fact finding agency, and are not usually matters for a reviewing court. [**15] Herzog v. Department of Environmental Resources, 166 Pa. Commw. 114, 645 A.2d 1381 (Pa. Cmwlth. 1994). Moreover, "this court 'may not substitute its judgment for that of an administrative agency acting within its discretion in the field of its expertise upon substantial evidence … .'" Dowler, 620 A.2d at 644 (citation omitted). The hearing examiner and the board rejected Wyland's claims regarding this evidence. On [*1104] appeal, we will not substitute our judgment nor reweigh this evidence. Wyland next claims that his right to due process and fundamental fairness was denied by PSERS' failure to formally request information from him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of prosecutorial and adjudicative functions by PSERS and the board. He first argues that his vested property rights to his pension were reduced by PSERS in an arbitrary manner, without notice and without a chance to respond, thereby violating his due process rights. HN7 The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard." [**16] Wyland was afforded these opportunities and exercised them before the hearing examiner and the board in this case. As the claimant in Hoerner, we note that Wyland has failed to cite any authority for the proposition that he was entitled to a "pre-reduction" hearing before PSERS in this case. The determination of Wyland's final average salary and the calculation of benefits is simply the result of a staff function performed by PSERS. Wyland could, and did, appeal the initial determination of his retirement benefits to PSERS' appeal committee and, ultimately, to the board. He filed a brief and a reply brief prior to the hearing before the hearing examiner, attended the hearing and presented evidence, and filed exceptions to the hearing examiner's determination with the board. HN8 As Wyland was given notice and a hearing prior to the final determination of his retirement benefits, and there exists no authority for a hearing in connection with PSERS' initial review, this claim is meritless. See Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994) (The initial denial of an insurance license application was the result of a staff function [**17] performed by the Pennsylvania Insurance Department; as this decision could be appealed to the Insurance Commissioner who would conduct a hearing before the final determination, applicants were not entitled to notice and a hearing prior to the initial denial of a license application). Finally, Wyland argues that the commingling of the prosecutorial and adjudicative functions by PSERS and the board is violative of his due process rights. In support of his position, Wyland relies on the case of Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1994). In Lyness, our Supreme Court stated: In the modern world of sprawling governmental entities akin to corporations it would be both unrealistic and counterproductive to insist that administrative agencies be forbidden from handling both prosecutorial and adjudicatory functions, where such roles are parcelled out and divided among distinct departments or boards. Efficiency and cost-effectiveness are certainly desirable ends. Indeed, each administrative board and judge is ultimately a subdivision of a single entity, the Commonwealth of Pennsylvania, but this does not render their collective work as prosecutors, investigators [**18] and adjudicators constitutionally infirm, nor create an imminent threat of prejudice. What our Constitution requires, however, is that if more than one function is reposed in a single administrative entity, walls of division be constructed which eliminate the threat or appearance of bias. … [A] "mere tangential involvement" of an adjudicator in the decision to initiate proceeding is not enough to raise the red flag of procedural due process. … Our constitutional notion of due process does not require a tabula rasa. … However, where the very entity or individuals involved in the decision to prosecute are "significantly involved" in the adjudicatory phase of the proceedings, a violation of due process occurs. Lyness, 529 Pa. at 546-47, 605 A.2d at 1209-10 (citations omitted). Thus, HN9 where "walls of division" are erected between the parties completing disparate functions within an administrative agency, no due process violation will be found. See, e.g., Stone & Edwards Insurance; [*1105] Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). Even if we were to adopt Wyland's position that the initial determination and review [**19] of his retirement benefits by PSERS and the board constitute "prosecutorial" and "adjudicative" functions, there has been no showing by Wyland of a commingling of these functions as proscribed by Lyness. Wyland's initial application was reviewed by a supervisor in the retirement processing section of PSERS. When he was dissatisfied with the determination of his benefits, Wyland requested PSERS' appeals committee to review his claim. When he was dissatisfied with the appeals committee's decision, Wyland submitted a request to the legal division of PSERS for a hearing before a hearing examiner. The independent hearing examiner conducted the hearing and made a recommendation to the board, which was the final arbiter. The board was not involved in the adjudication until Wyland appealed the decision of the hearing examiner to the board. Such a procedure does not involve the commingling of prosecutorial and adjudicative functions, and does not violate due process. See Duffield. Unquestionably, under Lyness, HN10 the mere possibility of bias under Pennsylvania law is sufficient to "raise the red flag" of the protections offered by the procedural guaranty of due process. Stone & [**20] Edwards Insurance. However, the appearance of bias proscribed by Lyness must be one which arises from an actual environment of commingled functions. Id. Wyland has not advanced a claim of the actual commingling of functions in the manner in which PSERS and the board conduct their investigations, prosecutions and adjudications. In the absence of any actual commingling, which would give rise to an appearance of bias, Wyland's unsubstantiated claim of commingling is meritless. Id. Accordingly, the order of the board is affirmed. JAMES R. KELLEY, Judge ORDER NOW, this 8th day of January, 1996, the order of the Public School Employes' Retirement Board, dated January 27, 1995, at No. 480-24-6298, is affirmed. JAMES R. KELLEY, Judge

543 Pa. 132, *; 669 A.2d 940, **;

1996 Pa. LEXIS 10, ***

ROBERT D. CHRISTIANA, Appellant v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Appellee

No. 75 W.D. Appeal Docket 1994

SUPREME COURT OF PENNSYLVANIA

543 Pa. 132; 669 A.2d 940; 1996 Pa. LEXIS 10

September 18, 1995, ARGUED

January 18, 1996, DECIDED

PRIOR HISTORY:  [***1]  Appeal from the Order of the Commonwealth Court Entered July 28, 1994, at No. 1745 C.D. 1993, Affirming the Opinion and Order of the Public School Employes' Retirement Board Dated June 24, 1993 at No. 117-16-8296. 166 Pa. Cmwlth. 300, 646 A.2d 645 (1994). JUDGES BELOW: CRAIG, COLINS, MCGINLEY, PELLEGRINI, FRIEDMAN, KELLEY, NEWMAN, JJ. (Cmwlth.).

DISPOSITION: Affirmed.

COUNSEL: Mr. Robert D. Christiana, APPELLANT, Pro se.

For Public School Employes' Retirement Board, APPELLEE: Louis Sheehan, Esquire. For Attorney General's Office, APPELLEE: Ernest D. Preate, Jr., Esquire.

JUDGES: MR. CHIEF JUSTICE ROBERT N. C. NIX, JR., FLAHERTY, ZAPPALA, CAPPY, CASTILLE, MONTEMURO, JJ. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case.

OPINION BY: ZAPPALA

OPINION

 [**940]   [*134]  OPINION

JUSTICE ZAPPALA

DECIDED: JANUARY 18, 1996

Appellant, Robert D. Christiana, is a former superintendent of the Upper St. Clair School District. Prior to his retirement, the School District had purchased certain annuities for Christiana. Christiana requested that the amounts paid for the annuities be included by the Public School Employes' Retirement System (PSERS) in its calculation of his final average salary for retirement purposes. After an administrative hearing, the Public School Employes' Retirement Board (Board) entered an order directing that the annuities were not to be included in the computation of his retirement benefits. The Commonwealth Court affirmed the Board's order in an en banc decision. We granted Christiana's petition for allowance [***2]  of appeal and now affirm.

The Board's opinion set forth detailed factual findings that are summarized as follows. Christiana was hired as the superintendent by the School District in July of 1979 at a starting salary of $ 52,000. He had been employed previously by school districts in  [**941]  Michigan and New York in various positions and had served as the superintendent of Pennsylvania's Springfield Township School District. Christiana's salary was increased over the next few years:

1980-1981 $ 58,000

1981-1982 $ 63,500

1982-1983 $ 65,723

1983-1984 $ 71,000

In the next five years, the School District reported the following figures as Christiana's salary to PSERS:

 [*135]  1984-1985 $ 71,000

1985-1986 $ 71,000

1986-1987 $ 71,000

1987-1988 $ 74,000

1988-1989 $ 80,000

Beginning with the 1984-1985 school year, the School District also expended funds to purchase single premium annuities for Christiana. The School District did not report the expenditures as part of Christiana's salary to PSERS or pay retirement contributions on those amounts. The minutes of Upper St. Clair School Board's meetings at which the annuity payments were addressed indicate [***3]  that the annuity payments were to be made for purposes of purchasing prior years' seniority pension credit. ¹ The minutes reflect the costs of the annuity purchases:

FOOTNOTES

1 The minutes also indicate that the annuity payments were "in lieu of salary increases." For the school year 1987-1988, in which Christiana also received a salary increase of $ 3,000, the minutes state that "in lieu of any additional salary increase," the School District shall purchase a single premium annuity for purposes of purchasing prior years' seniority pension credit at a cost of $ 9,500.

1984-1985 $ 5,000

1985-1986 $ 7,000

1986-1987 $ 10,000

1987-1988 $ 9,500

By early November of 1988, the School Board was apprised of Christiana's intention to retire at the end of the 1988-1989 school year. On November 14, 1988, the School Board adopted a resolution relating to Christiana's anticipated retirement:

RESOLVED, That for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further,

 [***4] 

RESOLVED, That commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits applicable to building administrators shall be continued for the Superintendent until his attaining age 65, and for his wife Nancy, until her attaining age 65, at District expense; and further,

RESOLVED, That the District shall reimburse the Superintendent during the 1988-1989 school year for costs incurred  [*136]  for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further,

RESOLVED, That the District shall purchase for the Superintendent three years' pension credit under the State Retirement Plan for his service in the United States Air Force as permitted by the laws of Pennsylvania; and further,

RESOLVED, That the District shall provide the Superintendent with an annuity or other equivalent payment at a cost to the District of $ 19,200 for purposes of purchasing for the Superintendent pension credit under the State Retirement Plan for service as an educator in positions prior to his employment under the Pennsylvania retirement system, as permitted [***5]  by the laws of Pennsylvania; . . .

The annuity payment of $ 19,200 for the 1988-1989 school year became problematic due to changes in the federal tax code that were effective as of January 1, 1989. In response, the School Board rescinded the resolution of November 14, 1988, and adopted a second resolution on January 9, 1989. The resolution split the $ 19,200 payment into two separate payments of $ 9,500, which was backdated to the 1988 calendar year, and of $ 9,700, which was to be made at or prior to Christiana's retirement date of June 30, 1989:

MOTION: By Wellington: WHEREAS, the Board of School Directors at its regular meeting on November 14, 1988, adopted certain resolutions relating to the salary and the benefits payable to or for the benefit of the Superintendent; and

WHEREFORE, prior to the adoption of such resolutions it was represented to the Superintendent that the Board would consider  [**942]  modification to those resolutions after the Superintendent and the District had an opportunity to consult with their respective advisors, and such consultations have taken place and the Board is prepared to make certain modifications;

NOW, THEREFORE,  [***6]  BE IT RESOLVED, that with the consent and agreement of the Superintendent, the resolutions  [*137]  adopted by the Board at its November 14, 1988, meeting relating to the salary and benefits payable to or for the benefit of the Superintendent be and are hereby rescinded and the following resolutions are adopted in their place and stead:

RESOLVED, that for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further,

RESOLVED, that commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits then applicable to Building Administrators shall be continued for the Superintendent until his attaining age 65, and for his wife, Nancy, until her attaining age 65, at District's expense . . .

RESOLVED, that the District shall reimburse the Superintendent during the 1988-89 school year for costs incurred for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further,

RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities,  [***7]  shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further,

RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania.

Pursuant to this resolution, the School District purchased an annuity in the amount of $ 9,500. The annuity payment was not reflected in Christiana's regular salary. The $ 9,700 payment made in 1989 was treated differently, however. Christiana received that payment directly, but the School District in turn reduced his monthly take-home pay and used the payroll  [*138]  deductions to purchase the 1989 annuity. From March of 1989 through June of 1989, the School District reported additional remuneration of $ 8,730 to PSERS that reflected the payroll changes.

Christiana submitted an application for retirement to PSERS on August 8, 1989. On [***8]  January 19, 1990, PSERS sent a letter advising the School District that after review of the School Board's minutes of November 14, 1988, and January 9, 1989, the $ 8,730 reported did not appear to be Christiana's normal salary and that the amount could not be used in calculating his retirement benefits. The School District was requested to submit a form to reflect this change in the reported salary.

The School District did not comply with the request. Instead, a form was sent increasing the salary report by the sum of $ 970 -the difference between the $ 9,700 annuity purchase for 1989 and the $ 8,730 originally reported as salary. In a letter dated February 9, 1990, the School District's business manager noted the correction and indicated that in addition, the report for the fourth quarter of 1988 had failed to report a payment of $ 9,500 to Christiana. The letter stated that the School District viewed the payments as merit increases. On February 27, 1990, PSERS requested a copy of the School District's merit pay policy. The School District did not respond.

On December 19, 1990, PSERS informed Christiana that his request to include the $ 9,500 for the 1987-1988 school year and the [***9]  $ 9,700 for the 1988-1989 school year in its calculation of his final average salary for retirement purposes had been denied. An administrative hearing was held on September 11, 1991, before a hearing examiner to consider whether the $ 19,200 should be considered as compensation under the Public  [**943]  School Employees' Retirement Code. ² PSERS learned then that the School District had purchased annuities for Christiana during the four previous school years (1984-1988). At the hearing, Christiana sought for the first time to add  [*139]  each of those annuity purchases to the salary amounts reported by the School District to PSERS. Christiana's take-home pay did not reflect those payments, and as noted earlier, the School District never included any of the annuity purchases in its salary reports to PSERS during those four years.

FOOTNOTES

2 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101-8104.

The hearing examiner recommended that the $ 19,200 should be excluded from the calculation of Christiana's final average salary [***10]  because the amount was properly characterized as nonincludable "severance payments" under the Retirement Code. The hearing examiner also recommended that the four annuity payments made during 1984-1988 be included in the calculation of final average salary as compensation.

The Board determined that Christiana had not properly raised the issue relating to the four annuity purchases in the earlier years, but nevertheless addressed the issue because there were sufficient facts on the record for its resolution. The Board concluded that the nonsalary reduction tax shelter annuity payments were not includable as Retirement Code compensation because they were nonstandard and/or nonregular remuneration as well as being bonuses and fringe benefits. The $ 19,200 annuity purchases in the 1988-1989 school year were found not to be includable in Retirement Code compensation because the payments were components of a severance package and were also characterized as nonincludable bonuses and fringe benefits. On June 24, 1993, the Board entered an order directing that none of the annuity purchases were to be included as Retirement Code Compensation. The Commonwealth Court affirmed the Board's order.  [***11]  ^HN1

On appeal from a final adjudication of an administrative board, our scope of review is limited to a determination of whether the board committed an error of law, whether there has been a violation of constitutional rights, or whether necessary factual findings are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). The issue raised in this appeal is whether the Board committed an error of law in determining that the annuity payments were not compensation  [*140]  for purposes of computing final average salary under the Retirement Code.

Section 8102 of the Retirement Code defines the following relevant terms:

^HN2"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding any severance payments.

"Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months with the compensation for part-time service being annualized on the basis of the fractional portion of the school year for which credit is received;  [***12]  except, if the employee was not a member for three such periods, the total compensation received as an active member annualized in the case of part-time service divided by the number of such periods of membership; and, in the case of a member with multiple service credit, the final average salary shall be determined by reference to compensation received by him as a school employee or a State employee or both.

"Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational  [**944]  and experience qualifications who are not terminating service.

24 Pa.C.S.A. § 8102.

The regulations promulgated under the Retirement Code further refine the definition of "compensation:"

^HN3Excludes a bonus, severance payment or other remuneration or similar emoluments received by a [***13]  school employee during his school service not based on the standard salary  [*141]  schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits.

22 Pa. Code § 211.2.

The restrictive definitions of compensation under the Retirement Code and regulations reflect the Legislature's intention to preserve the actuarial integrity of the retirement fund by "excluding from the computation of employes' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits." Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (1993); Laurito v. Public School Employes' Retirement Board, 146 Pa. Commw. 514, 519, 606 A.2d 609, 611 (1992).

In Laurito v. Public School Employes' Retirement Board, the Commonwealth Court affirmed [***14]  a decision of the Retirement Board that refused to include a salary increase for the purposes of computation of retirement benefits for an elementary middle school principal. Dr. Angelo Laurito retired after 42 years of service with the Northern Cambria School District. Laurito's annual salary was negotiated each year with the school district. For the 1984-1985 school year, his salary was $ 32,600. On July 25, 1985, the school board awarded him a $ 16,000 "salary adjustment" for the 1985-1986 school year. In addition, Laurito was granted a leave of absence for the 1985-1986 school year, and his July 1, 1986 resignation for retirement purposes was accepted.

PSERS notified Laurito that the $ 16,000 increase would not be included as compensation for retirement purposes. The Retirement Board upheld the determination, concluding that the claimed salary adjustment was a severance payment. The Commonwealth Court affirmed on appeal, finding that the  [*142]  record failed to establish that Laurito's salary increase was customary for an individual of similar experience within the school district. The court concluded that the school board's actions were tantamount to a severance agreement, stating [***15] 

We find especially persuasive the observation made by the board that the $ 16,000 payment in the final year of service provided a mechanism for the school district to recognize Laurito's devoted service, as well as to remedy the perceived inequity of a below-average salary throughout a working lifetime, by effectuating an inflated final salary for purposes of retirement benefits.

146 Pa. Commw. at 519-20, 606 A.2d at 611-12.

In Dowler v. Public School Employes' Retirement Board, the Commonwealth Court held that a payment made pursuant to a retirement agreement was not compensation despite the personnel director's performance of consulting services. William Dowler was employed for over seventeen years as the personnel director at the West Chester Area School District before his retirement on July 1, 1988. In addition to his other duties, Dowler conducted all of the school district's labor negotiations in the first three years of his employment. The school district hired private contractors to conduct labor negotiations thereafter.

On November 17, 1987, Dowler and the school district entered into an agreement concerning his retirement. Dowler was to be placed on a [***16]  reduced work schedule from January 1, 1988, to July 1, 1988. He was to be compensated during that time as if he were working a five-day schedule and his duties would include training a replacement and assisting with negotiations. In addition,  [**945]  funds were to be given to Dowler on January 1, 1988, to purchase credit for his military services in an amount not to exceed $ 15,000.

For the first time in Dowler's experience, three labor contracts expired at the end of June, 1988. Dowler assisted in the negotiations while working full-time as the personnel director. A new director was not hired until May, 1988. The school district paid $ 14,854.08 to Dowler, which he used to  [*143]  purchase retirement credit for military service. PSERS concluded that the amount was a severance payment and did not include it as part of Dowler's final average salary in computing his retirement compensation.

Dowler appealed the determination, asserting that he did not receive the benefit of his agreement because he was not given the opportunity to work half-time at full pay. The Board concluded that the money represented a severance payment and dismissed the appeal. The Commonwealth Court affirmed, stating

 ^HN4

Under [***17]  the Code, all payments, other than for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. The claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the School District for personnel with the same educational and experience qualifications who are not terminating service.

153 Pa. Commw. at 115-16, 620 A.2d at 643.

In furtherance of its responsibility to ensure the actuarial soundness of the retirement fund, the Board has determined that it is statutorily required to exclude nonregular remuneration, nonstandard salary, fringe benefits, bonuses, and severance payments from inclusion as compensation under the Retirement Code. The Board has developed the concepts of "standard salary" and "regular remuneration" as part of its understanding of compensation.

Based upon its interpretation of the Retirement Code and accompanying regulations, ^HN5standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld [***18]  for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary  [*144]  reduction Internal Revenue Code § 403(b) tax sheltered annuities.

Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300,    , 646 A.2d 645, 649-50 (1994) (emphasis supplied).

The nonsalary reduction tax sheltered annuities purchased for Christiana during the four consecutive school years beginning in 1984-1985 were found by the Board to be nonstandard salary, nonregular remuneration and bonuses or fringe benefits under this analysis. ³ The $ 19,200 in annuity purchases, which the School District authorized after being advised of Christiana's impending retirement, were excluded as being part of a severance package.

FOOTNOTES

3 Such annuities are distinguishable from the annuity contracts purchased under a deferred compensation program authorized under the Fiscal Code, Act of March 30, 1811, P.L. 145 as amended, 72 P.S. §§ 4521.1 - 4521.2. Income deferred under programs authorized thereunder is included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits. 72 P.S. § 4521.1(e). Christiana's assertion that the annuity purchases made on his behalf qualified for treatment as deferred compensation under this provision fails to recognize this distinction and is unsupportable.

 [***19]  Christiana had received salary increases for the first three years after he became superintendent for the Upper St. Clair School District. Over a four-year period, Christiana's annual salary increased from $ 58,000 to $ 71,000. When his salary for 1984-1985 was under consideration, members of the School Board expressed concern that an additional increase would generate negative publicity. A newspaper reporter's comment that Christiana's salary at that time exceeded that of Pennsylvania's Governor was repeated in the headlines of a local newspaper. Unwilling to confront public scrutiny  [**946]  of a salary increase, the School Board elected to freeze Christiana's salary and purchased a single premium annuity for the purpose of purchasing prior years' seniority pension credit.

Richard J. Mancini, the School District's business manager, testified that Christiana was the highest paid school superintendent in Western Pennsylvania, including the City of Pittsburgh  [*145]  School District which was ten times the size of Upper St. Clair's School District. Mancini indicated that the single premium annuity was considered as a way to handle adverse public reaction because responses to salary surveys would not [***20]  include that amount. He considered the annuity purchases to be compensation.

Nevertheless, the record establishes that the School District did not report the annuity payments to PSERS as compensation paid to Christiana and did not pay pickup contributions on those amounts. In fact, the School District continued to purchase single premium annuities even when salary increases were approved in subsequent years. In the 1987-1988 school year, Christiana's salary was increased to $ 74,000 and a single premium annuity in the amount of $ 9,500 was purchased. His salary was then increased to $ 80,000 in the following year in which an additional $ 9,500 was earmarked for an annuity purchase.

With respect to the $ 19,200 annuity payment, the School Board's resolutions indicate that it was part of a comprehensive salary and benefits package developed after notice of Christiana's impending retirement. The School Board's initial resolution dated November 14, 1988, contemplated a salary increase to $ 80,000, payment for services of a financial planner not to exceed $ 2,000, continuing medical benefits for Christiana and his wife until age 65, the purchase of three years' pension credit for military [***21]  service ⁴, and the $ 19,200 annuity purchase. On January 9, 1989, the resolution was rescinded. A second resolution was adopted which incorporated all of the earlier provisions, but split the $ 19,200 into two separate annuity purchases.

FOOTNOTES

4 The amount expended by the School District for this purchase was approximately $ 21,000. Christiana did not seek to include this amount in the computation of his retirement benefits.

The Commonwealth Court concluded that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary. As to the 1988-1989 salary and benefits package, the court found that the record was devoid of any evidence that the package was in accord with the  [*146]  District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten-year term of his employment.

We find that the Commonwealth Court did not err in concluding that none of the annuity purchases were includable as compensation for purposes of [***22]  determining Christiana's final average salary. There is substantial evidence in the record to support the Retirement Board's conclusions that the annuity payments were remuneration that was not based on the standard salary schedule for which Christiana was rendering service, and that the $ 19,200 payment was a severance payment. Therefore, under the Retirement Code and applicable regulations, the annuity payments were properly excluded from the computation of Christiana's final average salary.

The order of the Commonwealth Court is affirmed.

Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case.    

166 Pa. Commw. 300, *; 646 A.2d 645, **;
1994 Pa. Commw. LEXIS 436, ***

ROBERT D. CHRISTIANA, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent

NO. 1745 C.D. 1993

COMMONWEALTH COURT OF PENNSYLVANIA

166 Pa. Commw. 300; 646 A.2d 645; 1994 Pa. Commw. LEXIS 436

March 2, 1994, ARGUED

July 28, 1994, FILED

SUBSEQUENT HISTORY: Petition for Allowance of Appeal and/or Cross-Petition Granted December 7, 1994.

PRIOR HISTORY:  [***1]  APPEALED From File No. 117-16-8296. State Agency, Public School Employes' Retirement Board.

COUNSEL: Reed B. Day for petitioner.

Louis Sheehan, Assistant Counsel, for respondent.

JUDGES: BEFORE: HONORABLE DAVID W. CRAIG, President Judge, HONORABLE JAMES GARDNER COLINS, Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE SANDRA SCHULTZ NEWMAN, Judge.

OPINION BY: JAMES R. KELLEY

OPINION

 [*302]   [**646]  OPINION BY JUDGE KELLEY

Robert D. Christiana, the former Superintendent of the Upper St. Clair School District (District) appeals from an order of the Public School Employes' Retirement Board (Board) which denied the inclusion of certain annuities purchased for Christiana by the District in the calculation of his final average salary under the Public School Employes' Retirement Code (Retirement Code). ¹

FOOTNOTES

1 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101 - 8104.


The Board made extensive findings of fact. Those findings relevant to the present [***2]  appeal may be summarized as follows. Christiana was first employed by the District in July, 1979 at the initial salary of $ 52,000. Christiana's salaries for the subsequent school years were:

1980-1981	$ 58,000
1981-1982	$ 63,500
1982-1983	$ 65,723
1983-1984	$ 71,000

 [*303]  The following amounts were initially reported to the Public School Employes' Retirement System (PSERS) as Christiana's salary for the next five school years:

1984-1985	$ 71,000
1985-1986	$ 71,000
1986-1987	$ 71,000
1987-1988	$ 74,000
1988-1989	$ 80,000

In November 1988, the Upper St. Clair School Board (School Board) became aware of Christiana's intention to retire from his position at the end of the 1988-1989 school year. Christiana formally retired in August, 1989.

At its November 14, 1988 meeting, the School Board adopted resolutions concerning the 1988-1989 salary and benefits payable to  [**647]  or for the benefit of Christiana. Among the resolutions was one which directed the District to provide Christiana "with an annuity or other equivalent payment at a cost to the District of $ 19,200 for the purposes of purchasing for the Superintendent pension credit under the State Retirement Plan [***3]  … ."

On January 9, 1989, the School Board met and rescinded its resolutions of November 14, 1988, adopting the following relevant resolutions in their place:

RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities, shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further,

RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania. ²

FOOTNOTES

2 The amount necessary to purchase the pension credit for military service was slightly in excess of $ 20,000; however, Christiana does not seek to characterize this expenditure as "compensation" under the Retirement Code.


 [***4]   [*304]  Pursuant to this resolution, the District purchased an annuity for Christiana in the amount of $ 9,500, but this expenditure was not directly reflected as Christiana's regular salary. ³ In contradistinction, the District in 1989 directly paid Christiana an additional $ 9,700 which increased his regular salary from $ 80,000 to $ 89,700. The $ 9,700 was separately accounted for and deducted from Christiana's take-home salary. The District purchased an annuity for Christiana with the payroll deductions.

FOOTNOTES

3 This annuity, and all others subsequently referred to, were purchased by the District pursuant to Internal Revenue Code § 403(b) which grants special tax advantages to school employees with respect to annuities purchased for them by their tax-exempt employers.


The District reported to PSERS a total of $ 8,730 in payroll deductions starting in March 1989, through and including June 1989, to reflect the additional compensation called for by the January 9, 1989 School Board resolution. ⁴ After review of the School Board [***5]  meeting minutes and resolutions, on January 19, 1990, PSERS declined to accept or recognize the reported $ 8,730 for retirement credit purposes.

FOOTNOTES

4 The $ 8,730 in payroll deductions reported to PSERS represented a $ 970 shortfall from the $ 9,700 deduction authorized by the School Board.


By letter to PSERS dated February 9, 1990, the District resubmitted Christiana's reported salary for the 1988-1989 school year. The letter broadened the reporting period to encompass deductions made between January 1, 1989 and June 30, 1989, and adjusted the total salary accordingly. The letter read, in part:

On the original 1st quarter report $ 970.00 of additional compensation was not reported in February, 1989.

Further, in reviewing the report for the 4th quarter of 1988 we discovered that a payment of $ 9,500.00 to Dr. Christiana was also not reported.

The District views these payments as merit increases, no different than merit pay which is paid in accordance with  [*305]  our negotiated agreement with the teachers of  [***6]  the School District.

At the administrative hearing held September 11, 1991 before a hearing examiner to consider the issue of whether the $ 19,200 (comprised of $ 9,500 + $ 9,700) (Enhancement II) paid to Christiana in the 1988-1989 school year should be considered Retirement Code compensation for the purposes of calculating the final average salary, PSERS was made aware that additional remuneration was awarded to Christiana not only in his final year of service but also for the four previous school years (1984-1988) (Enhancement I). At the hearing, for the first time Christiana sought to add Enhancement I to the salaries previously reported to PSERS for the respective years for inclusion as Retirement Code compensation.

 [**648]  According to the relevant School Board meeting minutes, the Enhancement I payments were intended to compensate Christiana "in lieu of salary increases" for the given years. The pertinent resolutions directed that the District purchase a single premium annuity for Christiana for the purposes of purchasing prior years seniority pension credit at the following amounts:

1984-1985	$ 5,000
1985-1986	$ 7,000
1986-1987	$ 10,000
1987-1988	$ 9,500

None [***7]  of these amounts were reflected in Christiana's take-home pay, nor were the amounts formally reported to PSERS as salary.

The hearing examiner recommended that Enhancement II be excluded from the calculation of Christiana's final average salary because the amounts were properly characterized as non-includable "severance payments" under the Retirement Code. The hearing examiner recommended further that Enhancement I be included in the calculation of final average salary because such amounts were properly characterized as includable Retirement Code compensation. Christiana appealed to the Board.

Concerning Enhancement I, the Board concluded that Christiana's non-salary reduction tax shelter annuity payments  [*306]  may not be included in Retirement Code compensation because such payments are non-standard and/or non-regular remuneration as well as being bonuses and fringe benefits. Similarly, the Board concluded that the Enhancement II payments were components of a severance package none of which may be included in Retirement Code compensation because such payments must be characterized as non-includable bonuses and fringe benefits. It is from that order that Christiana now appeals to this court.

 [***8]  On appeal, Christiana argues (1) that he is entitled to have his final average salary adjusted in order to receive retirement credit for single premium tax-sheltered annuities purchased for him by his employer in lieu of salary increases; (2) that PSERS may not sua sponte utilize statistical and public policy considerations when denying a claim for retirement benefits which were not raised before the hearing examiner; (3) that the Board denied Christiana due process by overruling the hearing examiner without providing Christiana reasonable notice and an opportunity to be heard; and, (4) that the Board denied Christiana due process by commingling the prosecutorial and adjudicative functions in determining Christiana's eligibility for benefits.

We note that ^HN1our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Finnegan v. Public School Employes' Retirement Board, 126 Pa. Commonwealth Ct. 584, 560 A.2d 848 (1989).

Christiana first [***9]  argues that the Board erred in failing to give effect to the relevant portions of the Fiscal Code of the Commonwealth ⁵ which expressly authorize the inclusion of tax-deferred income as credit for customary retirement plans. For five years, Christiana argues, the District purchased qualified tax-deferred annuities for Christiana in accordance with the ^HN2Fiscal Code, which provides in relevant part:

 [*307]  The state treasurer shall pay all grants, salaries, annuities, gratuities, and pensions established by law … the treasurer or other officer in charge of payrolls for any … political subdivision may make systematic investments in mutual funds, savings accounts or government bonds or make premium payments on life insurance or annuity contracts to any institution or company licensed and authorized … to accept deposits … for the purpose of funding a deferred compensation program for employes.

72 P.S. § 4521 (emphasis provided by Christiana).

Moreover, Christiana asserts, the Fiscal Code authorizes the purchase of annuities through a deferred compensation program:

 [**649]  ^HN3(a) The governing body of any … political subdivision may, by contract, agree with any employe  [***10]  to defer, a portion of that employe's compensation and may subsequently, with the consent of the employe, purchase … annuity contracts … .

* * *

(e) Such deferred compensation program shall be in addition to, and not a part of, any other retirement benefit program provided by law for employes of the … political subdivision. Income deferred under programs authorized by this act shall continue to be included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits earned by any employe.

72 P.S. § 4521.1(a), (e), (emphasis provided by Christiana).

Christiana maintains that these provisions of the Fiscal Code permit the use of tax-deferred annuity payments which may be purchased by deferring a portion of an employee's compensation. Such deferred income, Christiana contends, is then to be included in the computation of the employee's retirement and pension benefits.

FOOTNOTES

5 Act of March 30, 1811, P.L. 145, as amended, 72 P.S. §§ 4521 - 4521.2.


 [***11]  We cannot disagree with Christiana's reading of the Fiscal Code provision set forth above. However, his argument continues,  [*308]  advancing the assertion that the Board erred by characterizing the annuities as non-salary reduction purchases, or non-regular remuneration, thus rendering such payments ineligible for inclusion as compensation under its interpretation of the Retirement Code.

^HN4Section 8102 of the Retirement Code sets forth the following relevant definitions:

"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding severance payments.

"^HN5Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months … .

"^HN6Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"^HN7Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary [***12]  salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service.

24 P.S. § 8102.

^HN8Section 211.2 of Title 22 of the Pennsylvania Code expands upon the definition of Retirement Code compensation, in pertinent part:

Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments  [*309]  which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits.

22 Pa. Code § 211.2 (emphasis added).

Accordingly, the Board has developed general concepts in understanding the Retirement Code's meaning of "compensation": "standard salary" and "regular remuneration". Based upon its interpretation of the Retirement Code and accompanying regulations,  [***13]  standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary reduction Internal Revenue Code § 403(b) tax sheltered  [**650]  annuities. Board's opinion, June 24, 1993, pp. 16-17 (emphasis added).

Based on its interpretation of the guiding statutes and regulations, the Board characterized both Enhancement I and II payments to Christiana as non-standard salary, non-regular remuneration, bonuses and fringe benefits. Additionally, the Board characterized Enhancement II as part of a severance payment. Therefore, the Board denied the inclusion of both the Enhancement I and Enhancement II annuity payments in the calculation of Christiana's final average salary.

^HN9The Board is charged with the execution and application of the Retirement Code and the Board's interpretation should not be overturned unless it is clear that such construction is erroneous. Panko v. Public School Employees' Retirement System, 89 Pa. Commonwealth Ct. 419, 492 A.2d 805 (1985). [***14]  Accordingly, our review of the record suggests that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary.

In each of the school years in which Christiana received an Enhancement I payment, the School Board adopted resolutions which directed that "in lieu of a salary increase" for that year, Christiana would benefit from the purchase of a single  [*310]  premium annuity for the purpose of purchasing prior years seniority pension credit. Christiana testified that the Enhancement I annuity payments were used as a means of rewarding Christiana without representing to the taxpayers of Upper St. Clair that his "salary" was substantially increased each year. (Original Record, Transcript of Hearing held September 11, 1991, at pp. 16-18.) Christiana testified he believed that his total compensation included his base reported salary, plus the additional amounts provided for the purchase of the annuities. (Id. at pp. 25-26.) The District's business manager at the time, Richard Mancini, testified that in his opinion "there was no doubt" the annuity payments were compensation. (Id. at p. 67.)

Referring to the first annuity payment of  [***15]  $ 5,000 in 1984-1985, Dina J. Fulmer, a School Board member at the time testified as follows:

Q: What did you understand this $ 5,000 to be?

A: It was a -- well, a reward for his performance. It was a way of compensating him which would not get our name in the paper again.

* * *

Q: Why were the words in lieu of a salary increase chosen?

A: Well, in lieu of means instead of or actually in place of being that lieu is the French word for place. Rather than increasing his base salary, we just decided to purchase this annuity.

(Id. at pp. 83, 85.)

However, regardless of Christiana's or the District's contradictory understanding, the record reveals that the District did not pay pickup contributions on the annuity purchases made on behalf of Christiana beginning with the 1984-1985 school year. ⁶ Further, in its reports to PSERS, the District did not  [*311]  report the Enhancement I payments as compensation paid to Christiana, nor did the District initially report any of the $ 19,200 Enhancement II payment to PSERS, as compensation or otherwise. Lastly, despite its apparent unwillingness to formally raise Christiana's base salary in the face of public opposition, Christiana [***16]  did in fact receive two regular salary increases totalling $ 9,000 during the five year period under consideration.

FOOTNOTES

6 Section 8102 of the Retirement Code defined "pickup contributions" as regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.


With respect to Enhancement II alone, the record also supports the findings of the Board that the payments constituted part of a severance package. Christiana testified the Board was made aware of his intention to retire prior to their November, 1988 negotiations concerning his 1988-1989 salary and benefits. (Id. at 47-48.) What emerged from those deliberations were resolutions directing (i) that the District, "in recognition of the superior manner in which the Superintendent  [**651]  has performed his duties", pay Christiana additional compensation in the amount of $ 9,500 in 1988; and (ii) that the District pay Christiana an additional $ 9,700 at or prior to his retirement. (Original Record,  [***17]  PSERS Exhibit #10B.)

While the record is silent as to whether Enhancement II was made contingent on Christiana's retirement, it is at the very least payment "in excess of the scheduled or customary" salary Christiana had enjoyed. Further, the final year salary and benefits package, of which Enhancement II was a part, included employer provided amounts for a financial planner, continuing medical coverage for Christiana and his wife, and a one-time offering of a salary reduction tax sheltered annuity. We find the record devoid of any evidence that Christiana's final year package was in accord with the District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten year term of his employment.

^HN10The Retirement Code indicates that the General Assembly wishes to exclude from the computation of employees' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits.  [*312]  Dowler v. Public School Employes' Retirement Board, 153 Pa. Commonwealth Ct. 109, 620 A.2d 639 (1993).

Christiana next argues that the Board erred by  [***18]  sua sponte utilizing financial statistics and public policy considerations not considered before the hearing examiner in denying Christiana's claim for retirement benefits. We disagree.

^HN11The Board, and not the hearing examiner, is the final fact finder in these cases. Dowler. As such, the Board may take official notice of facts which are obvious and notorious to an expert in the agency's field and those facts contained in the agency's files. Falasco v. Pennsylvania Board of Probation and Parole, 104 Pa. Commonwealth Ct. 321, 521 A.2d 991 (1987).

Next, Christiana asserts that in overruling the recommendations of the hearing examiner, the Board denied Christiana reasonable notice and an opportunity to be heard. Christiana contends that the Board made its determination in this matter without his participation and based its decision on facts and issues Christiana never had the opportunity to address.

^HN12The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard." Christiana was presented [***19]  with just these very opportunities and exploited them by filing a brief and reply brief prior to the hearing; attending the hearing and presenting evidence; and, filing exceptions to the hearing examiner's recommendations, followed by a response to the exceptions filed by PSERS. Our review of the record indicates that the Board studied the complete record, including the arguments advanced by Christiana, in reaching its decision.

Lastly, Christiana raises a due process challenge concerning the alleged commingling of prosecutorial and adjudicative functions between the PSERS and the Board. However, Christiana failed to raise this issue before the Board.

 [*313]  We have held that ^HN13commingling claims may be waived if they are not raised before the administrative board. Newlin Corp. v. Department of Environmental Resources, 134 Pa. Commonwealth Ct. 396, 579 A.2d 996 (1990). ⁷ Unless a claimant can offer a convincing reason for failing to raise the claim before the Board, the commingling issue is waived. Dowler. Here, Christiana has not offered any explanation for failing to raise this issue below.

FOOTNOTES

7 ^HN14Pennsylvania Rule of Appellate Procedure 1551 states, in part, that:

no question shall be heard or considered by the court which was not raised before the government unit except (1) Questions involving the validity of a statute … (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit.

 [***20]  Accordingly, the order of the Board is affirmed.

JAMES R. KELLEY, Judge

 [**652]  ORDER

NOW, this 28th day of July, 1994, the order of the Public School Employes' Retirement Board, dated June 24, 1993, is hereby affirmed.

JAMES R. KELLEY, Judge

Top of Form

669 A.2d 1098, *; 1996 Pa. Commw. LEXIS 10, **

DR. VERNON R. WYLAND, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent

NO. 566 C.D. 1995

COMMONWEALTH COURT OF PENNSYLVANIA

669 A.2d 1098; 1996 Pa. Commw. LEXIS 10

October 17, 1995, Argued

January 8, 1996, Decided

January 8, 1996, FILED

SUBSEQUENT HISTORY:  [**1]  Petition for Allowance of Appeal Denied August 5, 1996, Reported at: 1996 Pa. LEXIS 1604.

PRIOR HISTORY: APPEALED From No. File no. 480-24-6298. State Agency: Public School Employes' Retirement Board.

DISPOSITION: Affirmed.

COUNSEL: Dee Lafferty Pugh for petitioner.

Louis Sheehan, Assistant Counsel, for respondent.

JUDGES: BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE GEORGE T. KELTON, Senior Judge.

OPINION BY: JAMES R. KELLEY

OPINION

 [*1100]  OPINION BY JUDGE KELLEY

FILED: January 8, 1996

Dr. Vernon R. Wyland, the former Superintendent of the Garnet Valley School District (school district) appeals from the order of the Public School Employes' Retirement Board (board) adopting a hearing examiner's calculation of his final average salary used to determine his retirement benefits under the Public School Employees' Retirement Code (Retirement Code). ¹ We affirm.

FOOTNOTES

1 24 Pa.C.S. §§ 8101 - 8534.


The relevant facts as found by the hearing examiner, and adopted by the board, may be summarized as follows. Wyland became a member of the Public School Employes' Retirement System (PSERS) by virtue of his employment [**2]  with the Shaler Area School District on June 1, 1983. On July 1, 1987, he began service with the Garnet Valley School District as the District Superintendent for the 1987-1988 school year, at an annual salary of $ 65,000. On December 16, 1988, his annual salary for the 1988-1989 school year was increased to $ 70,200, retroactive to July 1, 1988. On March 28, 1990, Wyland's annual salary for the 1989-1990 school year was increased to $ 74,412, retroactive to July 1, 1989. Wyland's annual salary for the 1990-1991 school year was increased to $ 94,481 as of June 30, 1991.

During the 1989-1990 school year, the school district experienced a prolonged labor action with intense teacher contract negotiations which continued until a new contract was signed in June of 1990. During the labor action, the teachers went out on strike for a period of 25 to 30 days. As a result of the contract negotiations and work stoppage, Wyland became the target of community pressures and antagonisms and he also became the subject of a vote of "no confidence" from the teachers.

During the same period, the school district was engaged in a building program involving the construction of a new middle school building [**3]  and other renovations. At that time, the Garnet Valley Board of School Directors (school board) was sensitive to the adverse public reaction to cost overruns associated with the building program. The teachers' contract negotiations and public reaction to the work stoppage contributed to a significant turnover in the composition of the school board. Six school board members changed as a result of resignations, and new members who were appointed came to the school board predisposed against Wyland as a result of the labor situation and the cost overruns.

As a result, in November of 1990, Wyland was informed by the president of the school board that his contract would not be extended beyond its expiration date of June 30, 1991. Because the school board did not want to take public action on their decision, Wyland was asked if he would rather resign from his position. Wyland concluded that it would be best to resign as he felt it would be easier to tell prospective employers that he had resigned, rather than to say that his contract had not been extended.

After negotiations regarding the terms of Wyland's resignation, on November 21, 1990, the president of the school board sent him a letter [**4]  outlining the terms under which he could resign. The letter stated, inter alia:

3)

The [School] Board guarantees the payment to you of your full salary through June 30, 1991. That salary will not be reduced between now and June 30, 1991.

(a) Your annual raise, ordinarily effective January, 1991, will be deferred. As part of your salary, and in lieu of the annual raise in January, the [School] Board will purchase from you all unused vacation days credited to your account as of June 30, 1991 … .

(b)

Additionally, at the conclusion of your contract on June 30, 1991, the [School] Board, as part of your annual raise, will pay you for all unused sick days then credited to your account … .

(c)

Notwithstanding Paragraphs 3(a) and 3(b), you have agreed to reimburse the District for its share of the retirement cost allocable to the inclusion of that portion of your salary  [*1101]  represented by payments under Paragraph 3(a) and 3(b).

Wyland accepted the proposed terms as outlined in the letter.

On November 26, 1990, Wyland submitted his letter of resignation, contingent upon the school board's acceptance of the proposed terms in [**5]  the president's letter. At its regular meeting on November 27, 1990, the school board accepted Wyland's resignation effective June 30, 1991. The school board did not take a public vote regarding the content and financial terms of the November 21, 1990 letter to avoid disclosure of their action.

By letter dated June 20, 1991, Wyland submitted a memorandum to the school district's director of business and support services which summarized his accumulated vacation days and sick days. On June 25, 1991, Wyland and the school board president signed a letter of agreement which contained identical terms as outlined in the letter of November 21, 1990.

On June 28, 1991, the school district issued Wyland a check in the amount of $ 20,069.40 as payment for his unused sick days, vacation days and comp days. The payroll document computing Wyland's vacation and sick days noted that the payment was to be considered compensation as per the November 21, 1990 letter of agreement. As required by the letter of agreement, Wyland reimbursed the school district for its share of the retirement costs allocable to the inclusion of the $ 20,069.40 payment.

On June 28th, Wyland also entered into an agreement [**6]  with the school district releasing the school district from any future liability concerning his resignation, in exchange for the payment of $ 20,069.40. The agreement referred to this payment as a "severance payment". Wyland was required to sign the release agreement in order to receive the $ 20,069.40 payment. He signed the release agreement and received the payment.

On September 17, 1991, PSERS received a retirement application from Wyland with an effective date of retirement of June 29, 1991. PSERS contacted the school district regarding the $ 20,069.40 payment to Wyland. The school district sent PSERS a copy of the minutes of the school board meeting in which Wyland formally submitted his resignation, and indicated that no information from his personnel file could be released without his written consent. PSERS then informed the school district that in the absence of any written evidence concerning the reason for the payment, the $ 20,069.40 would not be used to calculate Wyland's retirement benefits. Wyland was sent copies of both letters from PSERS, but his consent for the release of information from his personnel file was never requested by PSERS.

Initially, Wyland's retirement [**7]  benefits were calculated by PSERS using a "final average salary" of $ 79,698. However, without the necessary documentation, the $ 20,069.40 was removed from PSERS' computation of his final average salary. As a result, his retirement benefits were recalculated using a final average salary of $ 73,008. By letter dated April 8, 1992, PSERS informed Wyland that his benefits had been recomputed, and that he was required to repay $ 7,619.03 that he had received in overpayment.

By letter dated April 23, 1992, Wyland requested that PSERS include the $ 20,069.40 in its calculation of his final average salary. On July 1, 1992, PSERS notified Wyland that its Appeals Committee had denied his request. By letter dated July 28, 1992, Wyland requested an administrative hearing.

On July 6, 1993, a hearing was scheduled and held before an independent hearing examiner. Based on the evidence presented at the hearing and the briefs and motions submitted by the parties, the hearing examiner concluded that the $ 20,069.40 paid to Wyland was a severance payment, and should not be considered in the calculation of his final average salary. In this regard, the hearing examiner specifically found the following:  [**8] 

1. At the time of the November 21, 1990 agreement, [the school district] was under a great deal of political pressure due to the recent teacher strike and cost overruns at the middle school project and [Wyland]'s raise was motivated by [the school district]'s need for [Wyland]'s cooperation.

2. The November 21, 1990 agreement was designed as a buyout of [Wyland]'s  [*1102]  vacation and sick days, both items regularly purchased by [the school district] at the end of a superintendent's term, and both items that would not normally be considered standard salary.

3. Both [Wyland] and [the school district] represented to the general public that [Wyland]'s pay for the 1990-1991 school year was $ 74,412.00, and it would be unfair to now allow [Wyland] to claim a higher pay for retirement purposes.

4. The November 21, 1990, agreement required [Wyland] to reimburse [the school district] for its share of the retirement cost allocable to the inclusion of the $ 20,069.40 payment into [Wyland]'s salary. With a regular salary increase this retirement cost would have been the responsibility of [the school district].

5. [Wyland] was required [**9]  to sign the June 28, 1991, release agreement in order to receive the $ 20,069.40 payment and the release agreement referred to the money as a severance payment.

The hearing examiner also found, inter alia, that: the payment was not based on the standard salary schedule for which Wyland was rendering service; the payment was not made under the school district's scheduled or customary salary scale; and, the payment was made contingent upon Wyland's "retirement" as that term includes terminations which result in the immediate receipt of a pension.

Both Wyland and PSERS filed exceptions to the hearing examiner's decision with the board. The board adopted the hearing examiner's findings of fact and conclusions of law, and affirmed the hearing examiner's decision. Wyland then filed a petition for review in this court appeal.

On appeal, Wyland claims: (1) the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted severance pay rather than compensation, thereby reducing his final average salary used for the calculation of his retirement benefits; and (2) his due process rights were denied by PSERS' failure to request information from [**10]  him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of the prosecutorial and adjudicative functions of PSERS and the board.

We note that ^HN1our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300, 646 A.2d 645 (Pa. Cmwlth. 1994); Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (Pa. Cmwlth. 1993). Because the board is charged with the execution and application of the Retirement Code, the board's interpretation should not be overturned unless it is clear that its construction of the Retirement Code is erroneous. Christiana.

Wyland first argues that the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted a severance payment rather than compensation. In particular, Wyland claims that: there is no evidence that the increase was paid contingent upon his retirement; there is no substantial evidence [**11]  that it was payment for his unused vacation or sick time; his resignation at the end of his contract term cannot be considered to be his "retirement"; the increase was consistent with the school district's compensation plan; and it made his salary comparable to other superintendents in Delaware County.

^HN2Both the Retirement Code and the applicable regulations contain restrictions on the types of compensation that may be used in calculating an employee's final average salary. Hoerner v. Public School Employes' Retirement Board, 655 A.2d 207 (Pa. Cmwlth. 1995). The purpose of these restrictions is to ensure the actuarial soundness of the retirement fund by preventing employees from artificially inflating compensation as a means of receiving greater retirement benefits. Id.

^HN3Section 8102 of the Retirement Code sets forth the following relevant definitions:

"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses  [*1103]  incidental to employment and excluding any severance payments.

"Final average salary." The highest average compensation received as an active member during any three nonoverlapping [**12]  periods of 12 consecutive months … .

"Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service.

24 Pa.C.S. § 8102 (emphasis added).

^HN4Title 22 Pa. Code § 211.2 also defines compensation as follows:

Compensation - Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated [**13]  in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. (Emphasis added.)

^HN5Whether or not a payment must be considered a severance payment is a question of law. Dowler. Under the Retirement Code, all payments, other than those for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. Id. A claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the school district for personnel with the same educational and experience qualifications who are not terminating service. Id.

In this case, both the hearing examiner and the board were presented with the letters of agreement between Wyland and the school board president dated November 21, 1990 and June 25, 1991 which stated, inter alia, that Wyland would be paid for all of his unused vacation and sick days in lieu of his annual raise, and that he would reimburse the school district for its share of the retirement cost allocable to the inclusion [**14]  of this amount. The hearing examiner and the board were also presented with an agreement between Wyland and the school board president dated June 28, 1991 which stated that the parties had reached certain agreements concerning the termination of his employment and severance payments, the terms of which were embodied in the letter of June 25. The hearing examiner and the board were also presented with documentation that Wyland was paid $ 20,069.40 by the school district for 62 unused vacation and comp days, and 93 unused sick days. Clearly, such evidence is sufficient to support the board's conclusion that the $ 20,069.40 paid to Wyland constituted a severance payment as it is defined in the Retirement Code.

Wyland is essentially asking this court to reweigh the conflicting evidence presented to the hearing examiner and the board, and to only accept that evidence which contradicts the plain meaning of the contents of the foregoing documents. However, ^HN6questions of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of the fact finding agency, and are not usually matters for a reviewing court.  [**15] Herzog v. Department of Environmental Resources, 166 Pa. Commw. 114, 645 A.2d 1381 (Pa. Cmwlth. 1994). Moreover, "this court 'may not substitute its judgment for that of an administrative agency acting within its discretion in the field of its expertise upon substantial evidence … .'" Dowler, 620 A.2d at 644 (citation omitted). The hearing examiner and the board rejected Wyland's claims regarding this evidence. On  [*1104]  appeal, we will not substitute our judgment nor reweigh this evidence.

Wyland next claims that his right to due process and fundamental fairness was denied by PSERS' failure to formally request information from him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of prosecutorial and adjudicative functions by PSERS and the board. He first argues that his vested property rights to his pension were reduced by PSERS in an arbitrary manner, without notice and without a chance to respond, thereby violating his due process rights.

^HN7The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard."  [**16]  Wyland was afforded these opportunities and exercised them before the hearing examiner and the board in this case.

As the claimant in Hoerner, we note that Wyland has failed to cite any authority for the proposition that he was entitled to a "pre-reduction" hearing before PSERS in this case. The determination of Wyland's final average salary and the calculation of benefits is simply the result of a staff function performed by PSERS.

Wyland could, and did, appeal the initial determination of his retirement benefits to PSERS' appeal committee and, ultimately, to the board. He filed a brief and a reply brief prior to the hearing before the hearing examiner, attended the hearing and presented evidence, and filed exceptions to the hearing examiner's determination with the board. ^HN8As Wyland was given notice and a hearing prior to the final determination of his retirement benefits, and there exists no authority for a hearing in connection with PSERS' initial review, this claim is meritless. See Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994) (The initial denial of an insurance license application was the result of a staff function [**17]  performed by the Pennsylvania Insurance Department; as this decision could be appealed to the Insurance Commissioner who would conduct a hearing before the final determination, applicants were not entitled to notice and a hearing prior to the initial denial of a license application).

Finally, Wyland argues that the commingling of the prosecutorial and adjudicative functions by PSERS and the board is violative of his due process rights. In support of his position, Wyland relies on the case of Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1994). In Lyness, our Supreme Court stated:

In the modern world of sprawling governmental entities akin to corporations it would be both unrealistic and counterproductive to insist that administrative agencies be forbidden from handling both prosecutorial and adjudicatory functions, where such roles are parcelled out and divided among distinct departments or boards. Efficiency and cost-effectiveness are certainly desirable ends. Indeed, each administrative board and judge is ultimately a subdivision of a single entity, the Commonwealth of Pennsylvania, but this does not render their collective work as prosecutors, investigators [**18]  and adjudicators constitutionally infirm, nor create an imminent threat of prejudice.

What our Constitution requires, however, is that if more than one function is reposed in a single administrative entity, walls of division be constructed which eliminate the threat or appearance of bias. … [A] "mere tangential involvement" of an adjudicator in the decision to initiate proceeding is not enough to raise the red flag of procedural due process. … Our constitutional notion of due process does not require a tabula rasa. … However, where the very entity or individuals involved in the decision to prosecute are "significantly involved" in the adjudicatory phase of the proceedings, a violation of due process occurs.

Lyness, 529 Pa. at 546-47, 605 A.2d at 1209-10 (citations omitted).

Thus, ^HN9where "walls of division" are erected between the parties completing disparate functions within an administrative agency, no due process violation will be found. See, e.g., Stone & Edwards Insurance;  [*1105]  Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994).

Even if we were to adopt Wyland's position that the initial determination and review [**19]  of his retirement benefits by PSERS and the board constitute "prosecutorial" and "adjudicative" functions, there has been no showing by Wyland of a commingling of these functions as proscribed by Lyness. Wyland's initial application was reviewed by a supervisor in the retirement processing section of PSERS. When he was dissatisfied with the determination of his benefits, Wyland requested PSERS' appeals committee to review his claim. When he was dissatisfied with the appeals committee's decision, Wyland submitted a request to the legal division of PSERS for a hearing before a hearing examiner. The independent hearing examiner conducted the hearing and made a recommendation to the board, which was the final arbiter. The board was not involved in the adjudication until Wyland appealed the decision of the hearing examiner to the board. Such a procedure does not involve the commingling of prosecutorial and adjudicative functions, and does not violate due process. See Duffield.

Unquestionably, under Lyness, ^HN10the mere possibility of bias under Pennsylvania law is sufficient to "raise the red flag" of the protections offered by the procedural guaranty of due process. Stone &  [**20]  Edwards Insurance. However, the appearance of bias proscribed by Lyness must be one which arises from an actual environment of commingled functions. Id. Wyland has not advanced a claim of the actual commingling of functions in the manner in which PSERS and the board conduct their investigations, prosecutions and adjudications. In the absence of any actual commingling, which would give rise to an appearance of bias, Wyland's unsubstantiated claim of commingling is meritless. Id.

Accordingly, the order of the board is affirmed.

JAMES R. KELLEY, Judge

ORDER

NOW, this 8th day of January, 1996, the order of the Public School Employes' Retirement Board, dated January 27, 1995, at No. 480-24-6298, is affirmed.

JAMES R. KELLEY, Judge

Bottom of Form

Top of Form

Bottom of Form

543 Pa. 132, *; 669 A.2d 940, **;

1996 Pa. LEXIS 10, ***

ROBERT D. CHRISTIANA, Appellant v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Appellee

No. 75 W.D. Appeal Docket 1994

SUPREME COURT OF PENNSYLVANIA

543 Pa. 132; 669 A.2d 940; 1996 Pa. LEXIS 10

September 18, 1995, ARGUED

January 18, 1996, DECIDED

PRIOR HISTORY:  [***1]  Appeal from the Order of the Commonwealth Court Entered July 28, 1994, at No. 1745 C.D. 1993, Affirming the Opinion and Order of the Public School Employes' Retirement Board Dated June 24, 1993 at No. 117-16-8296. 166 Pa. Cmwlth. 300, 646 A.2d 645 (1994). JUDGES BELOW: CRAIG, COLINS, MCGINLEY, PELLEGRINI, FRIEDMAN, KELLEY, NEWMAN, JJ. (Cmwlth.).

DISPOSITION: Affirmed.

COUNSEL: Mr. Robert D. Christiana, APPELLANT, Pro se.

For Public School Employes' Retirement Board, APPELLEE: Louis J. Sheehan, Esquire. For Attorney General's Office, APPELLEE: Ernest D. Preate, Jr., Esquire.

JUDGES: MR. CHIEF JUSTICE ROBERT N. C. NIX, JR., FLAHERTY, ZAPPALA, CAPPY, CASTILLE, MONTEMURO, JJ. Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case.

OPINION BY: ZAPPALA

OPINION

 [**940]   [*134]  OPINION

JUSTICE ZAPPALA

DECIDED: JANUARY 18, 1996

Appellant, Robert D. Christiana, is a former superintendent of the Upper St. Clair School District. Prior to his retirement, the School District had purchased certain annuities for Christiana. Christiana requested that the amounts paid for the annuities be included by the Public School Employes' Retirement System (PSERS) in its calculation of his final average salary for retirement purposes. After an administrative hearing, the Public School Employes' Retirement Board (Board) entered an order directing that the annuities were not to be included in the computation of his retirement benefits. The Commonwealth Court affirmed the Board's order in an en banc decision. We granted Christiana's petition for allowance [***2]  of appeal and now affirm.

The Board's opinion set forth detailed factual findings that are summarized as follows. Christiana was hired as the superintendent by the School District in July of 1979 at a starting salary of $ 52,000. He had been employed previously by school districts in  [**941]  Michigan and New York in various positions and had served as the superintendent of Pennsylvania's Springfield Township School District. Christiana's salary was increased over the next few years:

1980-1981 $ 58,000

1981-1982 $ 63,500

1982-1983 $ 65,723

1983-1984 $ 71,000

In the next five years, the School District reported the following figures as Christiana's salary to PSERS:

 [*135]  1984-1985 $ 71,000

1985-1986 $ 71,000

1986-1987 $ 71,000

1987-1988 $ 74,000

1988-1989 $ 80,000

Beginning with the 1984-1985 school year, the School District also expended funds to purchase single premium annuities for Christiana. The School District did not report the expenditures as part of Christiana's salary to PSERS or pay retirement contributions on those amounts. The minutes of Upper St. Clair School Board's meetings at which the annuity payments were addressed indicate [***3]  that the annuity payments were to be made for purposes of purchasing prior years' seniority pension credit. ¹ The minutes reflect the costs of the annuity purchases:

FOOTNOTES

1 The minutes also indicate that the annuity payments were "in lieu of salary increases." For the school year 1987-1988, in which Christiana also received a salary increase of $ 3,000, the minutes state that "in lieu of any additional salary increase," the School District shall purchase a single premium annuity for purposes of purchasing prior years' seniority pension credit at a cost of $ 9,500.

1984-1985 $ 5,000

1985-1986 $ 7,000

1986-1987 $ 10,000

1987-1988 $ 9,500

By early November of 1988, the School Board was apprised of Christiana's intention to retire at the end of the 1988-1989 school year. On November 14, 1988, the School Board adopted a resolution relating to Christiana's anticipated retirement:

RESOLVED, That for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further,

 [***4] 

RESOLVED, That commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits applicable to building administrators shall be continued for the Superintendent until his attaining age 65, and for his wife Nancy, until her attaining age 65, at District expense; and further,

RESOLVED, That the District shall reimburse the Superintendent during the 1988-1989 school year for costs incurred  [*136]  for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further,

RESOLVED, That the District shall purchase for the Superintendent three years' pension credit under the State Retirement Plan for his service in the United States Air Force as permitted by the laws of Pennsylvania; and further,

RESOLVED, That the District shall provide the Superintendent with an annuity or other equivalent payment at a cost to the District of $ 19,200 for purposes of purchasing for the Superintendent pension credit under the State Retirement Plan for service as an educator in positions prior to his employment under the Pennsylvania retirement system, as permitted [***5]  by the laws of Pennsylvania; . . .

The annuity payment of $ 19,200 for the 1988-1989 school year became problematic due to changes in the federal tax code that were effective as of January 1, 1989. In response, the School Board rescinded the resolution of November 14, 1988, and adopted a second resolution on January 9, 1989. The resolution split the $ 19,200 payment into two separate payments of $ 9,500, which was backdated to the 1988 calendar year, and of $ 9,700, which was to be made at or prior to Christiana's retirement date of June 30, 1989:

MOTION: By Wellington: WHEREAS, the Board of School Directors at its regular meeting on November 14, 1988, adopted certain resolutions relating to the salary and the benefits payable to or for the benefit of the Superintendent; and

WHEREFORE, prior to the adoption of such resolutions it was represented to the Superintendent that the Board would consider  [**942]  modification to those resolutions after the Superintendent and the District had an opportunity to consult with their respective advisors, and such consultations have taken place and the Board is prepared to make certain modifications;

NOW, THEREFORE,  [***6]  BE IT RESOLVED, that with the consent and agreement of the Superintendent, the resolutions  [*137]  adopted by the Board at its November 14, 1988, meeting relating to the salary and benefits payable to or for the benefit of the Superintendent be and are hereby rescinded and the following resolutions are adopted in their place and stead:

RESOLVED, that for the 1988-89 school year, the salary for the Superintendent shall be $ 80,000; and further,

RESOLVED, that commencing with the retirement of the Superintendent on June 30, 1989, the Blue Cross/Blue Shield or equivalent medical and hospitalization benefits then applicable to Building Administrators shall be continued for the Superintendent until his attaining age 65, and for his wife, Nancy, until her attaining age 65, at District's expense . . .

RESOLVED, that the District shall reimburse the Superintendent during the 1988-89 school year for costs incurred for the services of a financial planner, such reimbursement not to exceed $ 2,000; and further,

RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities,  [***7]  shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further,

RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania.

Pursuant to this resolution, the School District purchased an annuity in the amount of $ 9,500. The annuity payment was not reflected in Christiana's regular salary. The $ 9,700 payment made in 1989 was treated differently, however. Christiana received that payment directly, but the School District in turn reduced his monthly take-home pay and used the payroll  [*138]  deductions to purchase the 1989 annuity. From March of 1989 through June of 1989, the School District reported additional remuneration of $ 8,730 to PSERS that reflected the payroll changes.

Christiana submitted an application for retirement to PSERS on August 8, 1989. On [***8]  January 19, 1990, PSERS sent a letter advising the School District that after review of the School Board's minutes of November 14, 1988, and January 9, 1989, the $ 8,730 reported did not appear to be Christiana's normal salary and that the amount could not be used in calculating his retirement benefits. The School District was requested to submit a form to reflect this change in the reported salary.

The School District did not comply with the request. Instead, a form was sent increasing the salary report by the sum of $ 970 -the difference between the $ 9,700 annuity purchase for 1989 and the $ 8,730 originally reported as salary. In a letter dated February 9, 1990, the School District's business manager noted the correction and indicated that in addition, the report for the fourth quarter of 1988 had failed to report a payment of $ 9,500 to Christiana. The letter stated that the School District viewed the payments as merit increases. On February 27, 1990, PSERS requested a copy of the School District's merit pay policy. The School District did not respond.

On December 19, 1990, PSERS informed Christiana that his request to include the $ 9,500 for the 1987-1988 school year and the [***9]  $ 9,700 for the 1988-1989 school year in its calculation of his final average salary for retirement purposes had been denied. An administrative hearing was held on September 11, 1991, before a hearing examiner to consider whether the $ 19,200 should be considered as compensation under the Public  [**943]  School Employees' Retirement Code. ² PSERS learned then that the School District had purchased annuities for Christiana during the four previous school years (1984-1988). At the hearing, Christiana sought for the first time to add  [*139]  each of those annuity purchases to the salary amounts reported by the School District to PSERS. Christiana's take-home pay did not reflect those payments, and as noted earlier, the School District never included any of the annuity purchases in its salary reports to PSERS during those four years.

FOOTNOTES

2 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101-8104.

The hearing examiner recommended that the $ 19,200 should be excluded from the calculation of Christiana's final average salary [***10]  because the amount was properly characterized as nonincludable "severance payments" under the Retirement Code. The hearing examiner also recommended that the four annuity payments made during 1984-1988 be included in the calculation of final average salary as compensation.

The Board determined that Christiana had not properly raised the issue relating to the four annuity purchases in the earlier years, but nevertheless addressed the issue because there were sufficient facts on the record for its resolution. The Board concluded that the nonsalary reduction tax shelter annuity payments were not includable as Retirement Code compensation because they were nonstandard and/or nonregular remuneration as well as being bonuses and fringe benefits. The $ 19,200 annuity purchases in the 1988-1989 school year were found not to be includable in Retirement Code compensation because the payments were components of a severance package and were also characterized as nonincludable bonuses and fringe benefits. On June 24, 1993, the Board entered an order directing that none of the annuity purchases were to be included as Retirement Code Compensation. The Commonwealth Court affirmed the Board's order.  [***11]  ^HN1

On appeal from a final adjudication of an administrative board, our scope of review is limited to a determination of whether the board committed an error of law, whether there has been a violation of constitutional rights, or whether necessary factual findings are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). The issue raised in this appeal is whether the Board committed an error of law in determining that the annuity payments were not compensation  [*140]  for purposes of computing final average salary under the Retirement Code.

Section 8102 of the Retirement Code defines the following relevant terms:

^HN2"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding any severance payments.

"Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months with the compensation for part-time service being annualized on the basis of the fractional portion of the school year for which credit is received;  [***12]  except, if the employee was not a member for three such periods, the total compensation received as an active member annualized in the case of part-time service divided by the number of such periods of membership; and, in the case of a member with multiple service credit, the final average salary shall be determined by reference to compensation received by him as a school employee or a State employee or both.

"Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational  [**944]  and experience qualifications who are not terminating service.

24 Pa.C.S.A. § 8102.

The regulations promulgated under the Retirement Code further refine the definition of "compensation:"

^HN3Excludes a bonus, severance payment or other remuneration or similar emoluments received by a [***13]  school employee during his school service not based on the standard salary  [*141]  schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits.

22 Pa. Code § 211.2.

The restrictive definitions of compensation under the Retirement Code and regulations reflect the Legislature's intention to preserve the actuarial integrity of the retirement fund by "excluding from the computation of employes' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits." Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (1993); Laurito v. Public School Employes' Retirement Board, 146 Pa. Commw. 514, 519, 606 A.2d 609, 611 (1992).

In Laurito v. Public School Employes' Retirement Board, the Commonwealth Court affirmed [***14]  a decision of the Retirement Board that refused to include a salary increase for the purposes of computation of retirement benefits for an elementary middle school principal. Dr. Angelo Laurito retired after 42 years of service with the Northern Cambria School District. Laurito's annual salary was negotiated each year with the school district. For the 1984-1985 school year, his salary was $ 32,600. On July 25, 1985, the school board awarded him a $ 16,000 "salary adjustment" for the 1985-1986 school year. In addition, Laurito was granted a leave of absence for the 1985-1986 school year, and his July 1, 1986 resignation for retirement purposes was accepted.

PSERS notified Laurito that the $ 16,000 increase would not be included as compensation for retirement purposes. The Retirement Board upheld the determination, concluding that the claimed salary adjustment was a severance payment. The Commonwealth Court affirmed on appeal, finding that the  [*142]  record failed to establish that Laurito's salary increase was customary for an individual of similar experience within the school district. The court concluded that the school board's actions were tantamount to a severance agreement, stating [***15] 

We find especially persuasive the observation made by the board that the $ 16,000 payment in the final year of service provided a mechanism for the school district to recognize Laurito's devoted service, as well as to remedy the perceived inequity of a below-average salary throughout a working lifetime, by effectuating an inflated final salary for purposes of retirement benefits.

146 Pa. Commw. at 519-20, 606 A.2d at 611-12.

In Dowler v. Public School Employes' Retirement Board, the Commonwealth Court held that a payment made pursuant to a retirement agreement was not compensation despite the personnel director's performance of consulting services. William Dowler was employed for over seventeen years as the personnel director at the West Chester Area School District before his retirement on July 1, 1988. In addition to his other duties, Dowler conducted all of the school district's labor negotiations in the first three years of his employment. The school district hired private contractors to conduct labor negotiations thereafter.

On November 17, 1987, Dowler and the school district entered into an agreement concerning his retirement. Dowler was to be placed on a [***16]  reduced work schedule from January 1, 1988, to July 1, 1988. He was to be compensated during that time as if he were working a five-day schedule and his duties would include training a replacement and assisting with negotiations. In addition,  [**945]  funds were to be given to Dowler on January 1, 1988, to purchase credit for his military services in an amount not to exceed $ 15,000.

For the first time in Dowler's experience, three labor contracts expired at the end of June, 1988. Dowler assisted in the negotiations while working full-time as the personnel director. A new director was not hired until May, 1988. The school district paid $ 14,854.08 to Dowler, which he used to  [*143]  purchase retirement credit for military service. PSERS concluded that the amount was a severance payment and did not include it as part of Dowler's final average salary in computing his retirement compensation.

Dowler appealed the determination, asserting that he did not receive the benefit of his agreement because he was not given the opportunity to work half-time at full pay. The Board concluded that the money represented a severance payment and dismissed the appeal. The Commonwealth Court affirmed, stating

 ^HN4

Under [***17]  the Code, all payments, other than for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. The claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the School District for personnel with the same educational and experience qualifications who are not terminating service.

153 Pa. Commw. at 115-16, 620 A.2d at 643.

In furtherance of its responsibility to ensure the actuarial soundness of the retirement fund, the Board has determined that it is statutorily required to exclude nonregular remuneration, nonstandard salary, fringe benefits, bonuses, and severance payments from inclusion as compensation under the Retirement Code. The Board has developed the concepts of "standard salary" and "regular remuneration" as part of its understanding of compensation.

Based upon its interpretation of the Retirement Code and accompanying regulations, ^HN5standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld [***18]  for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary  [*144]  reduction Internal Revenue Code § 403(b) tax sheltered annuities.

Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300,    , 646 A.2d 645, 649-50 (1994) (emphasis supplied).

The nonsalary reduction tax sheltered annuities purchased for Christiana during the four consecutive school years beginning in 1984-1985 were found by the Board to be nonstandard salary, nonregular remuneration and bonuses or fringe benefits under this analysis. ³ The $ 19,200 in annuity purchases, which the School District authorized after being advised of Christiana's impending retirement, were excluded as being part of a severance package.

FOOTNOTES

3 Such annuities are distinguishable from the annuity contracts purchased under a deferred compensation program authorized under the Fiscal Code, Act of March 30, 1811, P.L. 145 as amended, 72 P.S. §§ 4521.1 - 4521.2. Income deferred under programs authorized thereunder is included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits. 72 P.S. § 4521.1(e). Christiana's assertion that the annuity purchases made on his behalf qualified for treatment as deferred compensation under this provision fails to recognize this distinction and is unsupportable.

 [***19]  Christiana had received salary increases for the first three years after he became superintendent for the Upper St. Clair School District. Over a four-year period, Christiana's annual salary increased from $ 58,000 to $ 71,000. When his salary for 1984-1985 was under consideration, members of the School Board expressed concern that an additional increase would generate negative publicity. A newspaper reporter's comment that Christiana's salary at that time exceeded that of Pennsylvania's Governor was repeated in the headlines of a local newspaper. Unwilling to confront public scrutiny  [**946]  of a salary increase, the School Board elected to freeze Christiana's salary and purchased a single premium annuity for the purpose of purchasing prior years' seniority pension credit.

Richard J. Mancini, the School District's business manager, testified that Christiana was the highest paid school superintendent in Western Pennsylvania, including the City of Pittsburgh  [*145]  School District which was ten times the size of Upper St. Clair's School District. Mancini indicated that the single premium annuity was considered as a way to handle adverse public reaction because responses to salary surveys would not [***20]  include that amount. He considered the annuity purchases to be compensation.

Nevertheless, the record establishes that the School District did not report the annuity payments to PSERS as compensation paid to Christiana and did not pay pickup contributions on those amounts. In fact, the School District continued to purchase single premium annuities even when salary increases were approved in subsequent years. In the 1987-1988 school year, Christiana's salary was increased to $ 74,000 and a single premium annuity in the amount of $ 9,500 was purchased. His salary was then increased to $ 80,000 in the following year in which an additional $ 9,500 was earmarked for an annuity purchase.

With respect to the $ 19,200 annuity payment, the School Board's resolutions indicate that it was part of a comprehensive salary and benefits package developed after notice of Christiana's impending retirement. The School Board's initial resolution dated November 14, 1988, contemplated a salary increase to $ 80,000, payment for services of a financial planner not to exceed $ 2,000, continuing medical benefits for Christiana and his wife until age 65, the purchase of three years' pension credit for military [***21]  service ⁴, and the $ 19,200 annuity purchase. On January 9, 1989, the resolution was rescinded. A second resolution was adopted which incorporated all of the earlier provisions, but split the $ 19,200 into two separate annuity purchases.

FOOTNOTES

4 The amount expended by the School District for this purchase was approximately $ 21,000. Christiana did not seek to include this amount in the computation of his retirement benefits.

The Commonwealth Court concluded that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary. As to the 1988-1989 salary and benefits package, the court found that the record was devoid of any evidence that the package was in accord with the  [*146]  District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten-year term of his employment.

We find that the Commonwealth Court did not err in concluding that none of the annuity purchases were includable as compensation for purposes of [***22]  determining Christiana's final average salary. There is substantial evidence in the record to support the Retirement Board's conclusions that the annuity payments were remuneration that was not based on the standard salary schedule for which Christiana was rendering service, and that the $ 19,200 payment was a severance payment. Therefore, under the Retirement Code and applicable regulations, the annuity payments were properly excluded from the computation of Christiana's final average salary.

The order of the Commonwealth Court is affirmed.

Mr. Justice Montemuro, who was sitting by designation, did not participate in the decision of this case.    

166 Pa. Commw. 300, *; 646 A.2d 645, **;
1994 Pa. Commw. LEXIS 436, ***

ROBERT D. CHRISTIANA, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent

NO. 1745 C.D. 1993

COMMONWEALTH COURT OF PENNSYLVANIA

166 Pa. Commw. 300; 646 A.2d 645; 1994 Pa. Commw. LEXIS 436

March 2, 1994, ARGUED

July 28, 1994, FILED

SUBSEQUENT HISTORY: Petition for Allowance of Appeal and/or Cross-Petition Granted December 7, 1994.

PRIOR HISTORY:  [***1]  APPEALED From File No. 117-16-8296. State Agency, Public School Employes' Retirement Board.

COUNSEL: Reed B. Day for petitioner.

Louis J. Sheehan, Assistant Counsel, for respondent.

JUDGES: BEFORE: HONORABLE DAVID W. CRAIG, President Judge, HONORABLE JAMES GARDNER COLINS, Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE SANDRA SCHULTZ NEWMAN, Judge.

OPINION BY: JAMES R. KELLEY

OPINION

 [*302]   [**646]  OPINION BY JUDGE KELLEY

Robert D. Christiana, the former Superintendent of the Upper St. Clair School District (District) appeals from an order of the Public School Employes' Retirement Board (Board) which denied the inclusion of certain annuities purchased for Christiana by the District in the calculation of his final average salary under the Public School Employes' Retirement Code (Retirement Code). ¹

FOOTNOTES

1 Act of October 2, 1975, P.L. 298, as amended, 24 P.S. §§ 8101 - 8104.


The Board made extensive findings of fact. Those findings relevant to the present [***2]  appeal may be summarized as follows. Christiana was first employed by the District in July, 1979 at the initial salary of $ 52,000. Christiana's salaries for the subsequent school years were:

1980-1981	$ 58,000
1981-1982	$ 63,500
1982-1983	$ 65,723
1983-1984	$ 71,000

 [*303]  The following amounts were initially reported to the Public School Employes' Retirement System (PSERS) as Christiana's salary for the next five school years:

1984-1985	$ 71,000
1985-1986	$ 71,000
1986-1987	$ 71,000
1987-1988	$ 74,000
1988-1989	$ 80,000

In November 1988, the Upper St. Clair School Board (School Board) became aware of Christiana's intention to retire from his position at the end of the 1988-1989 school year. Christiana formally retired in August, 1989.

At its November 14, 1988 meeting, the School Board adopted resolutions concerning the 1988-1989 salary and benefits payable to  [**647]  or for the benefit of Christiana. Among the resolutions was one which directed the District to provide Christiana "with an annuity or other equivalent payment at a cost to the District of $ 19,200 for the purposes of purchasing for the Superintendent pension credit under the State Retirement Plan [***3]  … ."

On January 9, 1989, the School Board met and rescinded its resolutions of November 14, 1988, adopting the following relevant resolutions in their place:

RESOLVED, that the District, in recognition of the superior manner in which the Superintendent has performed his duties and responsibilities, shall provide the Superintendent in calendar year 1988 with additional compensation in the amount of $ 9,500; and further,

RESOLVED, that the District shall, at or prior to the retirement of the Superintendent on June 30, 1989, pay to or on behalf of the Superintendent additional compensation in the amount of $ 9,700 plus an amount necessary to purchase for the Superintendent three years' pension credit under the State Retirement Plan in recognition of his service in the United States Air Force, as permitted by the laws of Pennsylvania. ²

FOOTNOTES

2 The amount necessary to purchase the pension credit for military service was slightly in excess of $ 20,000; however, Christiana does not seek to characterize this expenditure as "compensation" under the Retirement Code.


 [***4]   [*304]  Pursuant to this resolution, the District purchased an annuity for Christiana in the amount of $ 9,500, but this expenditure was not directly reflected as Christiana's regular salary. ³ In contradistinction, the District in 1989 directly paid Christiana an additional $ 9,700 which increased his regular salary from $ 80,000 to $ 89,700. The $ 9,700 was separately accounted for and deducted from Christiana's take-home salary. The District purchased an annuity for Christiana with the payroll deductions.

FOOTNOTES

3 This annuity, and all others subsequently referred to, were purchased by the District pursuant to Internal Revenue Code § 403(b) which grants special tax advantages to school employees with respect to annuities purchased for them by their tax-exempt employers.


The District reported to PSERS a total of $ 8,730 in payroll deductions starting in March 1989, through and including June 1989, to reflect the additional compensation called for by the January 9, 1989 School Board resolution. ⁴ After review of the School Board [***5]  meeting minutes and resolutions, on January 19, 1990, PSERS declined to accept or recognize the reported $ 8,730 for retirement credit purposes.

FOOTNOTES

4 The $ 8,730 in payroll deductions reported to PSERS represented a $ 970 shortfall from the $ 9,700 deduction authorized by the School Board.


By letter to PSERS dated February 9, 1990, the District resubmitted Christiana's reported salary for the 1988-1989 school year. The letter broadened the reporting period to encompass deductions made between January 1, 1989 and June 30, 1989, and adjusted the total salary accordingly. The letter read, in part:

On the original 1st quarter report $ 970.00 of additional compensation was not reported in February, 1989.

Further, in reviewing the report for the 4th quarter of 1988 we discovered that a payment of $ 9,500.00 to Dr. Christiana was also not reported.

The District views these payments as merit increases, no different than merit pay which is paid in accordance with  [*305]  our negotiated agreement with the teachers of  [***6]  the School District.

At the administrative hearing held September 11, 1991 before a hearing examiner to consider the issue of whether the $ 19,200 (comprised of $ 9,500 + $ 9,700) (Enhancement II) paid to Christiana in the 1988-1989 school year should be considered Retirement Code compensation for the purposes of calculating the final average salary, PSERS was made aware that additional remuneration was awarded to Christiana not only in his final year of service but also for the four previous school years (1984-1988) (Enhancement I). At the hearing, for the first time Christiana sought to add Enhancement I to the salaries previously reported to PSERS for the respective years for inclusion as Retirement Code compensation.

 [**648]  According to the relevant School Board meeting minutes, the Enhancement I payments were intended to compensate Christiana "in lieu of salary increases" for the given years. The pertinent resolutions directed that the District purchase a single premium annuity for Christiana for the purposes of purchasing prior years seniority pension credit at the following amounts:

1984-1985	$ 5,000
1985-1986	$ 7,000
1986-1987	$ 10,000
1987-1988	$ 9,500

None [***7]  of these amounts were reflected in Christiana's take-home pay, nor were the amounts formally reported to PSERS as salary.

The hearing examiner recommended that Enhancement II be excluded from the calculation of Christiana's final average salary because the amounts were properly characterized as non-includable "severance payments" under the Retirement Code. The hearing examiner recommended further that Enhancement I be included in the calculation of final average salary because such amounts were properly characterized as includable Retirement Code compensation. Christiana appealed to the Board.

Concerning Enhancement I, the Board concluded that Christiana's non-salary reduction tax shelter annuity payments  [*306]  may not be included in Retirement Code compensation because such payments are non-standard and/or non-regular remuneration as well as being bonuses and fringe benefits. Similarly, the Board concluded that the Enhancement II payments were components of a severance package none of which may be included in Retirement Code compensation because such payments must be characterized as non-includable bonuses and fringe benefits. It is from that order that Christiana now appeals to this court.

 [***8]  On appeal, Christiana argues (1) that he is entitled to have his final average salary adjusted in order to receive retirement credit for single premium tax-sheltered annuities purchased for him by his employer in lieu of salary increases; (2) that PSERS may not sua sponte utilize statistical and public policy considerations when denying a claim for retirement benefits which were not raised before the hearing examiner; (3) that the Board denied Christiana due process by overruling the hearing examiner without providing Christiana reasonable notice and an opportunity to be heard; and, (4) that the Board denied Christiana due process by commingling the prosecutorial and adjudicative functions in determining Christiana's eligibility for benefits.

We note that ^HN1our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Finnegan v. Public School Employes' Retirement Board, 126 Pa. Commonwealth Ct. 584, 560 A.2d 848 (1989).

Christiana first [***9]  argues that the Board erred in failing to give effect to the relevant portions of the Fiscal Code of the Commonwealth ⁵ which expressly authorize the inclusion of tax-deferred income as credit for customary retirement plans. For five years, Christiana argues, the District purchased qualified tax-deferred annuities for Christiana in accordance with the ^HN2Fiscal Code, which provides in relevant part:

 [*307]  The state treasurer shall pay all grants, salaries, annuities, gratuities, and pensions established by law … the treasurer or other officer in charge of payrolls for any … political subdivision may make systematic investments in mutual funds, savings accounts or government bonds or make premium payments on life insurance or annuity contracts to any institution or company licensed and authorized … to accept deposits … for the purpose of funding a deferred compensation program for employes.

72 P.S. § 4521 (emphasis provided by Christiana).

Moreover, Christiana asserts, the Fiscal Code authorizes the purchase of annuities through a deferred compensation program:

 [**649]  ^HN3(a) The governing body of any … political subdivision may, by contract, agree with any employe  [***10]  to defer, a portion of that employe's compensation and may subsequently, with the consent of the employe, purchase … annuity contracts … .

* * *

(e) Such deferred compensation program shall be in addition to, and not a part of, any other retirement benefit program provided by law for employes of the … political subdivision. Income deferred under programs authorized by this act shall continue to be included as regular compensation for the purpose of computing deductions for employe contributions to retirement and pension programs and for the purpose of computing retirement and pension benefits earned by any employe.

72 P.S. § 4521.1(a), (e), (emphasis provided by Christiana).

Christiana maintains that these provisions of the Fiscal Code permit the use of tax-deferred annuity payments which may be purchased by deferring a portion of an employee's compensation. Such deferred income, Christiana contends, is then to be included in the computation of the employee's retirement and pension benefits.

FOOTNOTES

5 Act of March 30, 1811, P.L. 145, as amended, 72 P.S. §§ 4521 - 4521.2.


 [***11]  We cannot disagree with Christiana's reading of the Fiscal Code provision set forth above. However, his argument continues,  [*308]  advancing the assertion that the Board erred by characterizing the annuities as non-salary reduction purchases, or non-regular remuneration, thus rendering such payments ineligible for inclusion as compensation under its interpretation of the Retirement Code.

^HN4Section 8102 of the Retirement Code sets forth the following relevant definitions:

"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses incidental to employment and excluding severance payments.

"^HN5Final average salary." The highest average compensation received as an active member during any three nonoverlapping periods of 12 consecutive months … .

"^HN6Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"^HN7Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary [***12]  salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service.

24 P.S. § 8102.

^HN8Section 211.2 of Title 22 of the Pennsylvania Code expands upon the definition of Retirement Code compensation, in pertinent part:

Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments  [*309]  which may be negotiated in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits.

22 Pa. Code § 211.2 (emphasis added).

Accordingly, the Board has developed general concepts in understanding the Retirement Code's meaning of "compensation": "standard salary" and "regular remuneration". Based upon its interpretation of the Retirement Code and accompanying regulations,  [***13]  standard salary and regular remuneration are defined by the Board as take-home cash, including, among others, (i) amounts withheld for tax remittances; (ii) amounts picked up as contributions to PSERS; and (iii) amounts appropriately deferred in qualifying deferred compensation programs, and excluding, fringe benefits, bonuses, severance payments, and non-salary reduction Internal Revenue Code § 403(b) tax sheltered  [**650]  annuities. Board's opinion, June 24, 1993, pp. 16-17 (emphasis added).

Based on its interpretation of the guiding statutes and regulations, the Board characterized both Enhancement I and II payments to Christiana as non-standard salary, non-regular remuneration, bonuses and fringe benefits. Additionally, the Board characterized Enhancement II as part of a severance payment. Therefore, the Board denied the inclusion of both the Enhancement I and Enhancement II annuity payments in the calculation of Christiana's final average salary.

^HN9The Board is charged with the execution and application of the Retirement Code and the Board's interpretation should not be overturned unless it is clear that such construction is erroneous. Panko v. Public School Employees' Retirement System, 89 Pa. Commonwealth Ct. 419, 492 A.2d 805 (1985). [***14]  Accordingly, our review of the record suggests that the Board did not err in excluding the annuity payments from the calculation of Christiana's final average salary.

In each of the school years in which Christiana received an Enhancement I payment, the School Board adopted resolutions which directed that "in lieu of a salary increase" for that year, Christiana would benefit from the purchase of a single  [*310]  premium annuity for the purpose of purchasing prior years seniority pension credit. Christiana testified that the Enhancement I annuity payments were used as a means of rewarding Christiana without representing to the taxpayers of Upper St. Clair that his "salary" was substantially increased each year. (Original Record, Transcript of Hearing held September 11, 1991, at pp. 16-18.) Christiana testified he believed that his total compensation included his base reported salary, plus the additional amounts provided for the purchase of the annuities. (Id. at pp. 25-26.) The District's business manager at the time, Richard Mancini, testified that in his opinion "there was no doubt" the annuity payments were compensation. (Id. at p. 67.)

Referring to the first annuity payment of  [***15]  $ 5,000 in 1984-1985, Dina J. Fulmer, a School Board member at the time testified as follows:

Q: What did you understand this $ 5,000 to be?

A: It was a -- well, a reward for his performance. It was a way of compensating him which would not get our name in the paper again.

* * *

Q: Why were the words in lieu of a salary increase chosen?

A: Well, in lieu of means instead of or actually in place of being that lieu is the French word for place. Rather than increasing his base salary, we just decided to purchase this annuity.

(Id. at pp. 83, 85.)

However, regardless of Christiana's or the District's contradictory understanding, the record reveals that the District did not pay pickup contributions on the annuity purchases made on behalf of Christiana beginning with the 1984-1985 school year. ⁶ Further, in its reports to PSERS, the District did not  [*311]  report the Enhancement I payments as compensation paid to Christiana, nor did the District initially report any of the $ 19,200 Enhancement II payment to PSERS, as compensation or otherwise. Lastly, despite its apparent unwillingness to formally raise Christiana's base salary in the face of public opposition, Christiana [***16]  did in fact receive two regular salary increases totalling $ 9,000 during the five year period under consideration.

FOOTNOTES

6 Section 8102 of the Retirement Code defined "pickup contributions" as regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.


With respect to Enhancement II alone, the record also supports the findings of the Board that the payments constituted part of a severance package. Christiana testified the Board was made aware of his intention to retire prior to their November, 1988 negotiations concerning his 1988-1989 salary and benefits. (Id. at 47-48.) What emerged from those deliberations were resolutions directing (i) that the District, "in recognition of the superior manner in which the Superintendent  [**651]  has performed his duties", pay Christiana additional compensation in the amount of $ 9,500 in 1988; and (ii) that the District pay Christiana an additional $ 9,700 at or prior to his retirement. (Original Record,  [***17]  PSERS Exhibit #10B.)

While the record is silent as to whether Enhancement II was made contingent on Christiana's retirement, it is at the very least payment "in excess of the scheduled or customary" salary Christiana had enjoyed. Further, the final year salary and benefits package, of which Enhancement II was a part, included employer provided amounts for a financial planner, continuing medical coverage for Christiana and his wife, and a one-time offering of a salary reduction tax sheltered annuity. We find the record devoid of any evidence that Christiana's final year package was in accord with the District's regular and standard yearly compensation practices, particularly those involving Christiana himself over the ten year term of his employment.

^HN10The Retirement Code indicates that the General Assembly wishes to exclude from the computation of employees' final average salary all payments which may artificially inflate compensation for the purpose of enhancing retirement benefits.  [*312]  Dowler v. Public School Employes' Retirement Board, 153 Pa. Commonwealth Ct. 109, 620 A.2d 639 (1993).

Christiana next argues that the Board erred by  [***18]  sua sponte utilizing financial statistics and public policy considerations not considered before the hearing examiner in denying Christiana's claim for retirement benefits. We disagree.

^HN11The Board, and not the hearing examiner, is the final fact finder in these cases. Dowler. As such, the Board may take official notice of facts which are obvious and notorious to an expert in the agency's field and those facts contained in the agency's files. Falasco v. Pennsylvania Board of Probation and Parole, 104 Pa. Commonwealth Ct. 321, 521 A.2d 991 (1987).

Next, Christiana asserts that in overruling the recommendations of the hearing examiner, the Board denied Christiana reasonable notice and an opportunity to be heard. Christiana contends that the Board made its determination in this matter without his participation and based its decision on facts and issues Christiana never had the opportunity to address.

^HN12The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard." Christiana was presented [***19]  with just these very opportunities and exploited them by filing a brief and reply brief prior to the hearing; attending the hearing and presenting evidence; and, filing exceptions to the hearing examiner's recommendations, followed by a response to the exceptions filed by PSERS. Our review of the record indicates that the Board studied the complete record, including the arguments advanced by Christiana, in reaching its decision.

Lastly, Christiana raises a due process challenge concerning the alleged commingling of prosecutorial and adjudicative functions between the PSERS and the Board. However, Christiana failed to raise this issue before the Board.

 [*313]  We have held that ^HN13commingling claims may be waived if they are not raised before the administrative board. Newlin Corp. v. Department of Environmental Resources, 134 Pa. Commonwealth Ct. 396, 579 A.2d 996 (1990). ⁷ Unless a claimant can offer a convincing reason for failing to raise the claim before the Board, the commingling issue is waived. Dowler. Here, Christiana has not offered any explanation for failing to raise this issue below.

FOOTNOTES

7 ^HN14Pennsylvania Rule of Appellate Procedure 1551 states, in part, that:

no question shall be heard or considered by the court which was not raised before the government unit except (1) Questions involving the validity of a statute … (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit.

 [***20]  Accordingly, the order of the Board is affirmed.

JAMES R. KELLEY, Judge

 [**652]  ORDER

NOW, this 28th day of July, 1994, the order of the Public School Employes' Retirement Board, dated June 24, 1993, is hereby affirmed.

JAMES R. KELLEY, Judge

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669 A.2d 1098, *; 1996 Pa. Commw. LEXIS 10, **

DR. VERNON R. WYLAND, Petitioner v. PUBLIC SCHOOL EMPLOYES' RETIREMENT BOARD, Respondent

NO. 566 C.D. 1995

COMMONWEALTH COURT OF PENNSYLVANIA

669 A.2d 1098; 1996 Pa. Commw. LEXIS 10

October 17, 1995, Argued

January 8, 1996, Decided

January 8, 1996, FILED

SUBSEQUENT HISTORY:  [**1]  Petition for Allowance of Appeal Denied August 5, 1996, Reported at: 1996 Pa. LEXIS 1604.

PRIOR HISTORY: APPEALED From No. File no. 480-24-6298. State Agency: Public School Employes' Retirement Board.

DISPOSITION: Affirmed.

COUNSEL: Dee Lafferty Pugh for petitioner.

Louis J. Sheehan, Assistant Counsel, for respondent.

JUDGES: BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Judge, HONORABLE GEORGE T. KELTON, Senior Judge.

OPINION BY: JAMES R. KELLEY

OPINION

 [*1100]  OPINION BY JUDGE KELLEY

FILED: January 8, 1996

Dr. Vernon R. Wyland, the former Superintendent of the Garnet Valley School District (school district) appeals from the order of the Public School Employes' Retirement Board (board) adopting a hearing examiner's calculation of his final average salary used to determine his retirement benefits under the Public School Employees' Retirement Code (Retirement Code). ¹ We affirm.

FOOTNOTES

1 24 Pa.C.S. §§ 8101 - 8534.


The relevant facts as found by the hearing examiner, and adopted by the board, may be summarized as follows. Wyland became a member of the Public School Employes' Retirement System (PSERS) by virtue of his employment [**2]  with the Shaler Area School District on June 1, 1983. On July 1, 1987, he began service with the Garnet Valley School District as the District Superintendent for the 1987-1988 school year, at an annual salary of $ 65,000. On December 16, 1988, his annual salary for the 1988-1989 school year was increased to $ 70,200, retroactive to July 1, 1988. On March 28, 1990, Wyland's annual salary for the 1989-1990 school year was increased to $ 74,412, retroactive to July 1, 1989. Wyland's annual salary for the 1990-1991 school year was increased to $ 94,481 as of June 30, 1991.

During the 1989-1990 school year, the school district experienced a prolonged labor action with intense teacher contract negotiations which continued until a new contract was signed in June of 1990. During the labor action, the teachers went out on strike for a period of 25 to 30 days. As a result of the contract negotiations and work stoppage, Wyland became the target of community pressures and antagonisms and he also became the subject of a vote of "no confidence" from the teachers.

During the same period, the school district was engaged in a building program involving the construction of a new middle school building [**3]  and other renovations. At that time, the Garnet Valley Board of School Directors (school board) was sensitive to the adverse public reaction to cost overruns associated with the building program. The teachers' contract negotiations and public reaction to the work stoppage contributed to a significant turnover in the composition of the school board. Six school board members changed as a result of resignations, and new members who were appointed came to the school board predisposed against Wyland as a result of the labor situation and the cost overruns.

As a result, in November of 1990, Wyland was informed by the president of the school board that his contract would not be extended beyond its expiration date of June 30, 1991. Because the school board did not want to take public action on their decision, Wyland was asked if he would rather resign from his position. Wyland concluded that it would be best to resign as he felt it would be easier to tell prospective employers that he had resigned, rather than to say that his contract had not been extended.

After negotiations regarding the terms of Wyland's resignation, on November 21, 1990, the president of the school board sent him a letter [**4]  outlining the terms under which he could resign. The letter stated, inter alia:

3)

The [School] Board guarantees the payment to you of your full salary through June 30, 1991. That salary will not be reduced between now and June 30, 1991.

(a) Your annual raise, ordinarily effective January, 1991, will be deferred. As part of your salary, and in lieu of the annual raise in January, the [School] Board will purchase from you all unused vacation days credited to your account as of June 30, 1991 … .

(b)

Additionally, at the conclusion of your contract on June 30, 1991, the [School] Board, as part of your annual raise, will pay you for all unused sick days then credited to your account … .

(c)

Notwithstanding Paragraphs 3(a) and 3(b), you have agreed to reimburse the District for its share of the retirement cost allocable to the inclusion of that portion of your salary  [*1101]  represented by payments under Paragraph 3(a) and 3(b).

Wyland accepted the proposed terms as outlined in the letter.

On November 26, 1990, Wyland submitted his letter of resignation, contingent upon the school board's acceptance of the proposed terms in [**5]  the president's letter. At its regular meeting on November 27, 1990, the school board accepted Wyland's resignation effective June 30, 1991. The school board did not take a public vote regarding the content and financial terms of the November 21, 1990 letter to avoid disclosure of their action.

By letter dated June 20, 1991, Wyland submitted a memorandum to the school district's director of business and support services which summarized his accumulated vacation days and sick days. On June 25, 1991, Wyland and the school board president signed a letter of agreement which contained identical terms as outlined in the letter of November 21, 1990.

On June 28, 1991, the school district issued Wyland a check in the amount of $ 20,069.40 as payment for his unused sick days, vacation days and comp days. The payroll document computing Wyland's vacation and sick days noted that the payment was to be considered compensation as per the November 21, 1990 letter of agreement. As required by the letter of agreement, Wyland reimbursed the school district for its share of the retirement costs allocable to the inclusion of the $ 20,069.40 payment.

On June 28th, Wyland also entered into an agreement [**6]  with the school district releasing the school district from any future liability concerning his resignation, in exchange for the payment of $ 20,069.40. The agreement referred to this payment as a "severance payment". Wyland was required to sign the release agreement in order to receive the $ 20,069.40 payment. He signed the release agreement and received the payment.

On September 17, 1991, PSERS received a retirement application from Wyland with an effective date of retirement of June 29, 1991. PSERS contacted the school district regarding the $ 20,069.40 payment to Wyland. The school district sent PSERS a copy of the minutes of the school board meeting in which Wyland formally submitted his resignation, and indicated that no information from his personnel file could be released without his written consent. PSERS then informed the school district that in the absence of any written evidence concerning the reason for the payment, the $ 20,069.40 would not be used to calculate Wyland's retirement benefits. Wyland was sent copies of both letters from PSERS, but his consent for the release of information from his personnel file was never requested by PSERS.

Initially, Wyland's retirement [**7]  benefits were calculated by PSERS using a "final average salary" of $ 79,698. However, without the necessary documentation, the $ 20,069.40 was removed from PSERS' computation of his final average salary. As a result, his retirement benefits were recalculated using a final average salary of $ 73,008. By letter dated April 8, 1992, PSERS informed Wyland that his benefits had been recomputed, and that he was required to repay $ 7,619.03 that he had received in overpayment.

By letter dated April 23, 1992, Wyland requested that PSERS include the $ 20,069.40 in its calculation of his final average salary. On July 1, 1992, PSERS notified Wyland that its Appeals Committee had denied his request. By letter dated July 28, 1992, Wyland requested an administrative hearing.

On July 6, 1993, a hearing was scheduled and held before an independent hearing examiner. Based on the evidence presented at the hearing and the briefs and motions submitted by the parties, the hearing examiner concluded that the $ 20,069.40 paid to Wyland was a severance payment, and should not be considered in the calculation of his final average salary. In this regard, the hearing examiner specifically found the following:  [**8] 

1. At the time of the November 21, 1990 agreement, [the school district] was under a great deal of political pressure due to the recent teacher strike and cost overruns at the middle school project and [Wyland]'s raise was motivated by [the school district]'s need for [Wyland]'s cooperation.

2. The November 21, 1990 agreement was designed as a buyout of [Wyland]'s  [*1102]  vacation and sick days, both items regularly purchased by [the school district] at the end of a superintendent's term, and both items that would not normally be considered standard salary.

3. Both [Wyland] and [the school district] represented to the general public that [Wyland]'s pay for the 1990-1991 school year was $ 74,412.00, and it would be unfair to now allow [Wyland] to claim a higher pay for retirement purposes.

4. The November 21, 1990, agreement required [Wyland] to reimburse [the school district] for its share of the retirement cost allocable to the inclusion of the $ 20,069.40 payment into [Wyland]'s salary. With a regular salary increase this retirement cost would have been the responsibility of [the school district].

5. [Wyland] was required [**9]  to sign the June 28, 1991, release agreement in order to receive the $ 20,069.40 payment and the release agreement referred to the money as a severance payment.

The hearing examiner also found, inter alia, that: the payment was not based on the standard salary schedule for which Wyland was rendering service; the payment was not made under the school district's scheduled or customary salary scale; and, the payment was made contingent upon Wyland's "retirement" as that term includes terminations which result in the immediate receipt of a pension.

Both Wyland and PSERS filed exceptions to the hearing examiner's decision with the board. The board adopted the hearing examiner's findings of fact and conclusions of law, and affirmed the hearing examiner's decision. Wyland then filed a petition for review in this court appeal.

On appeal, Wyland claims: (1) the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted severance pay rather than compensation, thereby reducing his final average salary used for the calculation of his retirement benefits; and (2) his due process rights were denied by PSERS' failure to request information from [**10]  him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of the prosecutorial and adjudicative functions of PSERS and the board.

We note that ^HN1our scope of review from adjudications of administrative boards is limited to a determination of whether the board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Christiana v. Public School Employees' Retirement Board, 166 Pa. Commw. 300, 646 A.2d 645 (Pa. Cmwlth. 1994); Dowler v. Public School Employes' Retirement Board, 153 Pa. Commw. 109, 620 A.2d 639 (Pa. Cmwlth. 1993). Because the board is charged with the execution and application of the Retirement Code, the board's interpretation should not be overturned unless it is clear that its construction of the Retirement Code is erroneous. Christiana.

Wyland first argues that the board erred in determining that the $ 20,069.40 payment in his final year of employment constituted a severance payment rather than compensation. In particular, Wyland claims that: there is no evidence that the increase was paid contingent upon his retirement; there is no substantial evidence [**11]  that it was payment for his unused vacation or sick time; his resignation at the end of his contract term cannot be considered to be his "retirement"; the increase was consistent with the school district's compensation plan; and it made his salary comparable to other superintendents in Delaware County.

^HN2Both the Retirement Code and the applicable regulations contain restrictions on the types of compensation that may be used in calculating an employee's final average salary. Hoerner v. Public School Employes' Retirement Board, 655 A.2d 207 (Pa. Cmwlth. 1995). The purpose of these restrictions is to ensure the actuarial soundness of the retirement fund by preventing employees from artificially inflating compensation as a means of receiving greater retirement benefits. Id.

^HN3Section 8102 of the Retirement Code sets forth the following relevant definitions:

"Compensation." Pickup contributions plus any remuneration received as a school employee excluding refunds for expenses  [*1103]  incidental to employment and excluding any severance payments.

"Final average salary." The highest average compensation received as an active member during any three nonoverlapping [**12]  periods of 12 consecutive months … .

"Pickup contributions." Regular or joint coverage member contributions which are made by the employer for active members for current service on and after January 1, 1983.

"Severance payments." Any payments for unused vacation or sick leave and any additional compensation contingent upon retirement including payments in excess of the scheduled or customary salaries provided for members within the same governmental entity with the same educational and experience qualifications who are not terminating service.

24 Pa.C.S. § 8102 (emphasis added).

^HN4Title 22 Pa. Code § 211.2 also defines compensation as follows:

Compensation - Excludes a bonus, severance payment or other remuneration or similar emoluments received by a school employe during his school service not based on the standard salary schedule for which he is rendering service. It shall exclude payments for unused sick leave, unused vacation leave, bonuses for attending school seminars and conventions, special payments for health and welfare plans based on the hours employed or any other payment or similar emoluments which may be negotiated [**13]  in a collective bargaining agreement for the express purpose of enhancing the compensation factor for retirement benefits. (Emphasis added.)

^HN5Whether or not a payment must be considered a severance payment is a question of law. Dowler. Under the Retirement Code, all payments, other than those for regular professional salary, which are part of an agreement in which a professional member agrees to terminate school service by a date certain, are prima facie severance payments. Id. A claimant may rebut a prima facie case only by showing that the payment is in accord with the scheduled or customary salary scale within the school district for personnel with the same educational and experience qualifications who are not terminating service. Id.

In this case, both the hearing examiner and the board were presented with the letters of agreement between Wyland and the school board president dated November 21, 1990 and June 25, 1991 which stated, inter alia, that Wyland would be paid for all of his unused vacation and sick days in lieu of his annual raise, and that he would reimburse the school district for its share of the retirement cost allocable to the inclusion [**14]  of this amount. The hearing examiner and the board were also presented with an agreement between Wyland and the school board president dated June 28, 1991 which stated that the parties had reached certain agreements concerning the termination of his employment and severance payments, the terms of which were embodied in the letter of June 25. The hearing examiner and the board were also presented with documentation that Wyland was paid $ 20,069.40 by the school district for 62 unused vacation and comp days, and 93 unused sick days. Clearly, such evidence is sufficient to support the board's conclusion that the $ 20,069.40 paid to Wyland constituted a severance payment as it is defined in the Retirement Code.

Wyland is essentially asking this court to reweigh the conflicting evidence presented to the hearing examiner and the board, and to only accept that evidence which contradicts the plain meaning of the contents of the foregoing documents. However, ^HN6questions of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of the fact finding agency, and are not usually matters for a reviewing court.  [**15] Herzog v. Department of Environmental Resources, 166 Pa. Commw. 114, 645 A.2d 1381 (Pa. Cmwlth. 1994). Moreover, "this court 'may not substitute its judgment for that of an administrative agency acting within its discretion in the field of its expertise upon substantial evidence … .'" Dowler, 620 A.2d at 644 (citation omitted). The hearing examiner and the board rejected Wyland's claims regarding this evidence. On  [*1104]  appeal, we will not substitute our judgment nor reweigh this evidence.

Wyland next claims that his right to due process and fundamental fairness was denied by PSERS' failure to formally request information from him before eliminating the $ 20,069.40 from its calculation of his final average salary, and by the commingling of prosecutorial and adjudicative functions by PSERS and the board. He first argues that his vested property rights to his pension were reduced by PSERS in an arbitrary manner, without notice and without a chance to respond, thereby violating his due process rights.

^HN7The Administrative Agency Law, 2 Pa.C.S. § 504, states that "no adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice and an opportunity to be heard."  [**16]  Wyland was afforded these opportunities and exercised them before the hearing examiner and the board in this case.

As the claimant in Hoerner, we note that Wyland has failed to cite any authority for the proposition that he was entitled to a "pre-reduction" hearing before PSERS in this case. The determination of Wyland's final average salary and the calculation of benefits is simply the result of a staff function performed by PSERS.

Wyland could, and did, appeal the initial determination of his retirement benefits to PSERS' appeal committee and, ultimately, to the board. He filed a brief and a reply brief prior to the hearing before the hearing examiner, attended the hearing and presented evidence, and filed exceptions to the hearing examiner's determination with the board. ^HN8As Wyland was given notice and a hearing prior to the final determination of his retirement benefits, and there exists no authority for a hearing in connection with PSERS' initial review, this claim is meritless. See Stone & Edwards Insurance Agency, Inc. v. Department of Insurance, 538 Pa. 276, 648 A.2d 304 (1994) (The initial denial of an insurance license application was the result of a staff function [**17]  performed by the Pennsylvania Insurance Department; as this decision could be appealed to the Insurance Commissioner who would conduct a hearing before the final determination, applicants were not entitled to notice and a hearing prior to the initial denial of a license application).

Finally, Wyland argues that the commingling of the prosecutorial and adjudicative functions by PSERS and the board is violative of his due process rights. In support of his position, Wyland relies on the case of Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1994). In Lyness, our Supreme Court stated:

In the modern world of sprawling governmental entities akin to corporations it would be both unrealistic and counterproductive to insist that administrative agencies be forbidden from handling both prosecutorial and adjudicatory functions, where such roles are parcelled out and divided among distinct departments or boards. Efficiency and cost-effectiveness are certainly desirable ends. Indeed, each administrative board and judge is ultimately a subdivision of a single entity, the Commonwealth of Pennsylvania, but this does not render their collective work as prosecutors, investigators [**18]  and adjudicators constitutionally infirm, nor create an imminent threat of prejudice.

What our Constitution requires, however, is that if more than one function is reposed in a single administrative entity, walls of division be constructed which eliminate the threat or appearance of bias. … [A] "mere tangential involvement" of an adjudicator in the decision to initiate proceeding is not enough to raise the red flag of procedural due process. … Our constitutional notion of due process does not require a tabula rasa. … However, where the very entity or individuals involved in the decision to prosecute are "significantly involved" in the adjudicatory phase of the proceedings, a violation of due process occurs.

Lyness, 529 Pa. at 546-47, 605 A.2d at 1209-10 (citations omitted).

Thus, ^HN9where "walls of division" are erected between the parties completing disparate functions within an administrative agency, no due process violation will be found. See, e.g., Stone & Edwards Insurance;  [*1105]  Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994).

Even if we were to adopt Wyland's position that the initial determination and review [**19]  of his retirement benefits by PSERS and the board constitute "prosecutorial" and "adjudicative" functions, there has been no showing by Wyland of a commingling of these functions as proscribed by Lyness. Wyland's initial application was reviewed by a supervisor in the retirement processing section of PSERS. When he was dissatisfied with the determination of his benefits, Wyland requested PSERS' appeals committee to review his claim. When he was dissatisfied with the appeals committee's decision, Wyland submitted a request to the legal division of PSERS for a hearing before a hearing examiner. The independent hearing examiner conducted the hearing and made a recommendation to the board, which was the final arbiter. The board was not involved in the adjudication until Wyland appealed the decision of the hearing examiner to the board. Such a procedure does not involve the commingling of prosecutorial and adjudicative functions, and does not violate due process. See Duffield.

Unquestionably, under Lyness, ^HN10the mere possibility of bias under Pennsylvania law is sufficient to "raise the red flag" of the protections offered by the procedural guaranty of due process. Stone &  [**20]  Edwards Insurance. However, the appearance of bias proscribed by Lyness must be one which arises from an actual environment of commingled functions. Id. Wyland has not advanced a claim of the actual commingling of functions in the manner in which PSERS and the board conduct their investigations, prosecutions and adjudications. In the absence of any actual commingling, which would give rise to an appearance of bias, Wyland's unsubstantiated claim of commingling is meritless. Id.

Accordingly, the order of the board is affirmed.

JAMES R. KELLEY, Judge

ORDER

NOW, this 8th day of January, 1996, the order of the Public School Employes' Retirement Board, dated January 27, 1995, at No. 480-24-6298, is affirmed.

JAMES R. KELLEY, Judge

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