Roc CIA Hearing

1 STATE OF DELAWARE

2 STATE BOARD OF PENSION TRUSTEES AND OFFICE OF PENSIONS

3

RE: SHIRLEY E. ROCCIA

4 APPEAL NO. 12-04/106800

5

860 Silver Lake Boulevard - Suite 1

6 McArdle Building

Dover, Delaware

7

8 July 11, 2012

11:00 am

9

10 BEFORE: THOMAS J. COOK

NANCY SHEVOCK

11

12 ALSO PRESENT: CYNTHIA L. COLLINS, ESQ., Deputy Attorney

General for

13 State Board of

Pension Trustees

14 DAVID CRAIK, Pension Administrator, Office

of Pensions

15 NICHOLE DOBO, The News Journal

THOMAS H. ELLIS, ESQ., Deputy Attorney

16 General for

Office of Pensions

17 SHIRLEY E. ROCCIA

ROBERT F. MINNEHAN, PH. D.

18 JAMES DARLINGTON TAYLOR, JR., ESQ.

19

20

21

22

CORBETT & ASSOCIATES - A VERITEXT COMPANY

23 300 Delaware Avenue - Suite 815

Wilmington, Delaware 19801

24 (302) 571-0510

Page 1

VERITEXT NATIONAL COURT REPORTING COMPANY888-777-6690 ~ 215-241-1000 ~ 610-434-8588 ~ 302-571-0510

1 INDEX TO TESTIMONY

2

MICHAEL SCANLAN PAGE

3

Direct by Ms. Roccia 17

4 Cross by Mr. Ellis 23

5

ANN E. LEWIS, PH. D.

6

Direct by Ms. Roccia 28

7 Cross by Mr. Ellis 29

8

SHIRLEY E. ROCCIA

9

Direct by Mr. Ellis 31

10

11 DAVID CRAIK

12 Direct by Mr. Ellis 46

13

HARRIE ELLEN MINNEHAN

14

Direct by Mr. Ellis 52

15

16 KIMBERLY SUE VINCENT

17 Direct by Mr. Ellis 57

Cross by Ms. Roccia 62

18 Redirect by Mr. Ellis 63

19

20 INDEX TO EXHIBITS

21

OFFICE OF PENSION EXHIBIT NOS.

22

Exhibit 1 Letter dated October 24, 2011 from 29

23 Ann E. Lewis, Ph.D., to Shirley

Roccia

24

Page 2


1 Exhibit 2 Letter dated August 22, 2011 from 32

David C. Craik to Shirley E. Roccia

2

Exhibit 3 Letter dated April 17, 2011 from 37

3 David C. Craik to Shirley Roccia

4 Exhibit 4 Letter dated September 28, 2011 49

from David C. Craik to Shirley E.

5 Roccia

6 Exhibit 5 Packet of Kim Vincent's prepared 57

material

7

Exhibit 6 Query Comments 66

8

9

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10

11

12

13

14

15

16

17

18

19

20

21

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23

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Page 3


1 MS. COLLINS: Today we are here for the

2 appeal hearing of Mrs. Shirley Roccia, Appeal

3 No. 12-04/106800. And before we get started, I'll just

4 do a few housekeeping items and explain to you the

5 process.

6 MS. ROCCIA: Thank you.

7 MS. COLLINS: The first thing I want to

8 remind everybody is that we do have some personal

9 information. So things like Social Security numbers you

10 do not have to disclose. They're protected. Obviously

11 your name and other things are. So if you start to

12 wander into territory with personal confidential

13 information, I may speak up or, you know, Mr. Ellis.

14 We have a fairly informal process here.

15 Everything is recorded so that we will have a copy of the

16 transcript of the proceeding. You get to start with an

17 opening statement. And then Mr. Ellis will have an

18 opening statement. In that opening statement, if you can

19 tell us what it is that you would like the Board of

20 Pension Trustees to do which you have appealed to the

21 Board -- what decision -- that would be helpful.

22 Once both of you have made your opening

23 statements, you'll have an opportunity to call your

24 witnesses. Mr. Ellis has requested that witnesses be

Page 4


1 sequestered. So Kim you probably need to leave.

2 MS. VINCENT: Okay.

3 (Ms. Vincent exited the conference

4 room.)

5 MS. COLLINS: And so they'll be held

6 outside. And then when it's their turn to testify, we

7 will bring them in.

8 MS. ROCCIA: Okay.

9 MS. COLLINS: Once you examine your

10 witness, Mr. Ellis would have a chance to cross-examine.

11 And if there's any kind of clarifying or follow-up

12 questions you'd like to ask, you may do that at that

13 time.

14 Once all the witnesses have testified,

15 you'll have an opportunity to make your closing argument.

16 And then Mr. Ellis will make his closing argument.

17 Sometimes myself or one of the Board of Pension Trustees

18 may ask a question of the witness.

19 Just for the record and so you

20 understand, Secretary Cook and Mrs. Shevock are members

21 of the Board of Pension Trustees, and they have not seen

22 your file, your record. They have no knowledge about

23 what is in your particular record or the issues related

24 to your appeal. So when you're discussing things or when

Page 5


1 you're making your opening statement, if you can use

2 dates and be specific. Don't assume that they know what

3 you're talking about.

4 MS. ROCCIA: Okay.

5 MS. COLLINS: And if you're going to say

6 "he" or "she," it's better if you use a full name so that

7 they know.

8 MS. ROCCIA: That's important

9 information. Thanks for telling me for.

10 MS. COLLINS: You know, a lot of people

11 think that they brought everything, but they haven't.

12 So, you know, don't make that assumption.

13 Normally what happens is after this we

14 have a discussion. And then we'll do some research. And

15 the hearing officers will come up with a recommendation

16 that -- we'll draft that recommendation. And it will be

17 presented to the full Board of Pension Trustees and

18 discussed and then voted upon.

19 Unfortunately there's not a Pension

20 Board meeting in August. So the first time this will

21 probably be able to get in front of the Board will be at

22 the September Board meeting. The Pension Board meetings

23 are always on the last Friday of every month. So it will

24 be the very last day of September. So at that point

Page 6


1 we'll contact you with the determination of the Board.

2 They will either uphold or deny the pension

3 administrator's determination.

4 At that point, if you're unhappy with

5 the results or the opinion, you do have an opportunity to

6 appeal up to Superior Court. So -- and there's a 30-day

7 time period. That's very strict. So if you do want to

8 do that, I urge you to make sure you meet the deadlines.

9 MS. ROCCIA: Will do.

10 MS. COLLINS: Do you have any questions

11 or --

12 MS. ROCCIA: I may have questions along

13 the way, but I think --

14 MS. COLLINS: Please ask if there's

15 anything going on that you don't understand or have

16 questions about. Please -- please ask us.

17 MS. ROCCIA: Okay.

18 MS. COLLINS: Okay. So if you want to

19 get started. Make your opening statement.

20 MS. ROCCIA: All right. I am here today

21 because I received, in October, a letter from the Pension

22 Board saying that my pension would be suspended if I

23 continued to work at Pencader and because I had been a

24 public school employee -- a State of Delaware employee --

Page 7


1 and retired -- and there was a problem with me working in

2 a public school again. Which problem I was not aware of

3 at all. Because I had gone to a pension presentation at

4 Brandywine High School two years before I retired. The

5 question had come up at that time in the group that was

6 listening to the presentation -- the question had come

7 up: Can you still work in a public school after you

8 retire? The answer was definitely yes. And the

9 discussion ensued. And everyone left there with the

10 opinion -- there was a feeling that we could still work

11 if we chose to take a position in a public school. No

12 detailed clarification, just a definite feeling that we

13 could do this. It was not my intention at that time to

14 do it, but after I retired --

15 MR. ELLIS: Mrs. Roccia --

16 MS. ROCCIA: Mm-hmm.

17 MR. ELLIS: -- can I interrupt for just

18 a second?

19 Do you want to repeat everything that

20 you're now saying again a second time or would you like

21 to go ahead and be sworn? And I'm not sure if you

22 understood. You can make an opening statement.

23 MS. ROCCIA: Yes.

24 MR. ELLIS: And if this is your opening

Page 8


1 statement, that's fine.

2 MS. ROCCIA: Yes.

3 MR. ELLIS: But if in fact what you want

4 the two trustees to do is consider this your testimony on

5 the issue today, rather than have to repeat everything

6 that you're now saying over again, why don't you go ahead

7 and get sworn now.

8 MS. ROCCIA: Okay. I'm not sure why

9 I -- okay. Whatever you say.

10 MR. ELLIS I mean, do you want to repeat

11 all of what you're saying?

12 MS. ROCCIA: No, I don't want to repeat.

13 MR. ELLIS: Okay.

14 MS. ROCCIA: I thought you wanted a

15 statement. I mean...

16 MS. COLLINS: Go ahead and swear her in.

17 SHIRLEY E. ROCCIA

18 the witness herein, having first been

19 duly sworn on oath, was examined and

20 testified as follows:

21 MS. ROCCIA: All right. May I go on?

22 MR. ELLIS: Yes. I think, maybe,

23 because you didn't understand, you might want to go back

24 to the beginning --

Page 9


1 MS. ROCCIA: Okay.

2 MR. ELLIS: -- why there was a

3 disagreement. You went to this seminar. And pick it up.

4 MS. ROCCIA: I went to the seminar two

5 years before I retired. And the discussion in the

6 seminar centered -- one of the discussions centered

7 around the fact that a question had been raised could

8 pensioners go back and teach in a public school again.

9 And, yes, we were told without doubt we could.

10 And so at that time I really had no

11 intentions of even trying to go back to work after I

12 retired. I figured I was going to retire and live

13 happily ever after. And I retired. And then this

14 opportunity came up for me to work at Pencader Charter.

15 And I remembered what had -- what discussion had ensued

16 at the pension presentation. And I figured "fine." And

17 I was told that other pensioners were working at Pencader

18 and there was not a problem with it.

19 And the first time I was aware that

20 there was any problem was on October -- on or about

21 October 1st when I received a letter from the Pension

22 Board stating that I could not work in a public school

23 and continue to collect my pension.

24 So I went to Mr. Scanlan immediately.

Page 10


1 And Ms. -- Dr. Lewis and Mr. Scanlan and -- at that time

2 Mr. Scanlan suggested that we -- that I obtain my

3 business license and work as a vendor. And I had

4 absolutely no reason to doubt that this was a completely

5 legal thing to do. I had no idea that there would be any

6 objection to it. Anytime I've ever worked in a school

7 before in other schools, you don't question. You don't

8 question what the finance officer tells you to do. You

9 sign the papers and you do what you're told. And your

10 contract is there. You don't question whether they're

11 doing something legal or illegal or questionable at all.

12 So I had complete faith in Mr. Scanlan. And I still do,

13 because I don't think he would have -- I don't think he

14 would have done anything that would have jeopardized

15 Pencader or myself. And so I went ahead and obtained my

16 business license and continued to work at Pencader.

17 And April 1st I received the next letter

18 from the Pension Board stating that I could not do that

19 and that as of April 1st my pension was suspended and my

20 benefits were suspended. And so I'm here to appeal that

21 situation, considering the fact that I thought it was

22 perfectly all right to do what I did -- trusted the

23 knowledge and decision-making of our school financial

24 officers. So that's why I'm here.

Page 11


1 MR. COOK: Can I ask a question now?

2 MS. COLLINS: Mm-hmm.

3 MR. COOK: The forum that you talked

4 about where retirement --

5 MS. ROCCIA: Yes, mm-hmm.

6 MR. COOK: -- was that something

7 sponsored by the Pension Office or was that a school --

8 MS. ROCCIA: I believe it's DSTA, but

9 there were pension people there. There was one pension

10 representative there. And -- yes.

11 MR. COOK: Okay.

12 MS. ROCCIA: And it's a yearly thing.

13 They do it every year --

14 MR. COOK: It happens annually. Okay.

15 MS. ROCCIA: -- in a couple of different

16 locations in the state.

17 MR. COOK: I'm assuming you retired from

18 Brandywine High School --

19 MS. ROCCIA: I retired -- or no.

20 MR. COOK: -- or Brandywine District.

21 Or no?

22 MS. ROCCIA: No, I didn't. I went to

23 the presentation at Brandywine High School.

24 MR. COOK: Oh, okay.

Page 12


1 MS. ROCCIA: I retired from the New

2 Castle County Vo-Tech School District.

3 MR. COOK: Okay.

4 MS. COLLINS: Thank you.


6 MS. COLLINS: Mr. Ellis, would you like

7 to make your opening statement?

8 MR. ELLIS: Well, in a nutshell, I think

9 the testimony will show that Mrs. Roccia resigned after

10 26 or 27 years of teaching. I believe she's 67 years old

11 now.

12 MS. ROCCIA: That's correct.

13 MR. ELLIS: And almost within a month or

14 two she was back at work. And it is my understanding

15 that Mrs. Roccia spoke with Kim Vincent, of this office,

16 who advised her against entering into this relationship

17 with Pencader Charter. And then, true enough, Mr. Craik

18 did send a letter alerting, based upon the tip, that

19 there need to be some change of things among these three

20 teachers, one of whom was Mrs. Roccia.

21 The school leader, on behalf of

22 Mrs. Roccia, sent a letter, again, to Mr. Craik. I'm not

23 sure whether or not Mr. Craik got that letter. It's the

24 same letter, only this time it's addressed to

Page 13


1 Mrs. Roccia. It was copied to Mr. Craik. And she

2 obviously went -- I'm sure we'll hear the testimony. She

3 went to Mr. Scanlan, who is no authority on the law, who

4 is no authority on accounting, but who advised her to

5 sign this independent contractor agreement, which she

6 did. And our position is that that independent

7 contractor arrangement was a sham. The IRS would

8 disparage it as such. In fact, she was a full-time

9 employee. She was in a pension-credible position, as a

10 consequence of which should not have been receiving her

11 school salary -- her school remuneration at the same time

12 she was receiving pension benefits.

13 Let me also say that Mr. Craik, as he

14 always does, sends that form letter out to pensioners who

15 may have been state employees with an advice against

16 falling afoul of this provision of 5502 and setting forth

17 in very uncertain terms the various exemptions that do

18 exist but that, unfortunately, as time evolved didn't

19 really cover the situation of Mrs. Roccia, as a

20 consequence of which we're seeking an order of recoupment

21 today.

22 Thank you.

23 MS. COLLINS: Who would you like to call

24 as your first witness?

Page 14


1 MS. ROCCIA: May I ask a question?

2 MS. COLLINS: Sure.

3 MS. ROCCIA: You just referred to the

4 fact that I had spoken with Kim Vincent and she had

5 advised me not to enter into a relationship with

6 Pencader. I don't recall having a conversation with Kim

7 Vincent about and her saying that at all. I may have

8 called -- I can't even be sure. I may have called the

9 Pension Office to see if I needed to deal with this or if

10 the school would deal with it -- handle the first letter.

11 I -- I do not recall that anyone told me I should not

12 engage in this -- in a relationship with --

13 MS. COLLINS: I think that Ms. Vincent

14 will be called as a witness. So you'll have an

15 opportunity to cross-examine her --


17 MS. COLLINS: -- and question her about

18 that.

19 MS. ROCCIA: And the other thing that

20 you mentioned was a letter.

21 MS. COLLINS: Mrs. Roccia, the -- if you

22 have things that you want to question or challenge that

23 Mr. Ellis made in his opening statement, you can do that

24 either through your own testimony or through witness

Page 15


1 testimony or through cross-examination of other, you

2 know, witnesses that he may -- he may present, just, you

3 know, in terms of the process. And then if you want to

4 reiterate that during your closing statement, that is a

5 great place to do that as well.

6 MS. ROCCIA: So I shouldn't be asking

7 this -- this question now?

8 MS. COLLINS: Not of Mr. Ellis. He's

9 the attorney.

10 MS. ROCCIA: I'm sorry.

11 MS. COLLINS: That's okay. That's

12 why -- you asked the question. I'm just trying to help

13 out, because I understand this is all very new and, I'm

14 sure --

15 MR. ELLIS: Unpleasant.

16 MS. COLLINS: Unpleasant. And, you

17 know, everybody gets nervous in these situations. And so

18 I appreciate you asking questions.

19 So you would like to call Mr. Scanlan in

20 at this point?

21 MS. ROCCIA: Yes, please.

22 MS. COLLINS: Tom, could you go get him

23 at this point?

24 MR. ELLIS: Sure.

Page 16


Michael Scanlan - Direct


2 MICHAEL SCANLAN,




6 MS. COLLINS: Mr. Scanlan, thank you for

7 hanging around --

8 THE WITNESS: Not a problem.

9 MS. COLLINS: -- for the second hearing.

10 I think Mrs. Roccia -- I can't pronounce

11 your name.

12 MS. COLLINS: Roccia.

13 THE WITNESS: Roccia.

14 MS. COLLINS: -- has some questions for

15 you.

16 MS. ROCCIA: Think of "rock."

17 MS. COLLINS: Rock.

18 MS. ROCCIA: Roccia.

19 MS. COLLINS: Okay.

20 DIRECT EXAMINATION

21 BY MS. ROCCIA:

22 Q. I made a statement telling them how after the

23 October 1st letter from the Pension Board you advised me

24 to go ahead with a business license --

Page 17



1 A. Mm-hmm.

2 Q. -- and become a vendor.

3 A. Mm-hmm.

4 Q. Is that correct?

5 A. Yes.

6 Q. Okay. And I also mentioned that I had

7 complete faith in the fact that you would have done what

8 was appropriate and correct --

9 A. That's right.

10 Q. -- and not done anything illegal and would not

11 have questioned what you had done. I have never

12 questioned a school financial officer in any other school

13 I've been associated with.

14 So I would assume that what you did was

15 correct and legal and there would be no question with it.

16 A. Right.

17 Q. And we did that have that -- I did ask you

18 that --

19 A. Yes.

20 Q. -- at the time.

21 A. Mm-hmm.

22 Q. Yes, mm-hmm.

23 A. Actually, we had several conversations along

24 those lines.

Page 18



1 Q. Yes.

2 A. Right.

3 Q. Is there anything you would like to add with

4 regard to the vendor status or your knowledge of this as

5 a viable option?

6 THE WITNESS: My testimony is going to

7 remain the same, so is there a need to redo the testimony

8 or --

9 MS. COLLINS: Yes. This is a different

10 proceeding entirely.

11 THE WITNESS: Okay. All right.

12 MS. COLLINS: They stand on their own.

13 They're different facts.

14 THE WITNESS: When -- in answer to your

15 question, when the decision was made -- and it wasn't a

16 decision that was solely mine. It was a decision that

17 would have been put from some people that were -- are

18 administrators -- the school leader, the DOE rep- --

19 MS. COLLINS: And can you identify the

20 school leader?

21 THE WITNESS: Ann Lewis. I'm sorry.


23 THE WITNESS: All right. The contact

24 from DOE was also --

Page 19



1 MS. COLLINS: And who was that?

2 THE WITNESS: That was Dorcel Spence.


4 THE WITNESS: All right. Who was also a

5 retiree working on a contract. All right. And from the

6 contacts that I made to other charter schools and

7 districts and having knowledge of the fact that

8 contractors were not under the same guidelines and

9 stipulations and that casual/seasonals were. And if the

10 Pension Office saw that what appeared to be full-time

11 equivalents, right -- I happen to agree with them when I

12 looked at the records.

13 I changed the records to reflect what

14 the school actually -- the status of the -- of your

15 situation was supposed to be that as a casual/seasonal.

16 I adjusted the records to reflect that -- that status.

17 Received a negative reply from the Pension Office as to

18 whether or not that satisfied their need -- needs. And

19 it was at that time a decision was made -- not my own but

20 by the administration to go the contractor route, right,

21 knowing that there were no guidelines and stipulations

22 for contractors dictated by the Pension Office.

23 And, in fact, until this past Monday

24 when an e-mail came out with the new guidelines

Page 20



1 referencing the epilogue language in the budget bill, the

2 FY13 budget bill -- were there guidelines established for

3 contractors now effective July 1st of this year have to

4 be followed.

5 With that in mind, we changed your

6 status and -- and suggested that you change your status

7 from that of casual/seasonal, which obviously wasn't --

8 wasn't going to satisfy the -- the Pension Office to that

9 of a contractor.

10 MS. COLLINS: Did you have any further

11 questions?

12 BY MS. ROCCIA:

13 Q. I think it's important to stress that at that

14 time -- or until just recently there were no guidelines.

15 You said there were no guidelines for

16 contract employees?

17 A. Not issued by the Pension Office, no.

18 Q. Not issued by the Pension Office.

19 A. Not in reference to retirees about their

20 pension.

21 Q. So if there is new ruling, could I assume that

22 the new rulings would not apply to previous situations?

23 Is that -- do you think that's --

24 MS. COLLINS: I'm going to object to

Page 21



1 that because Mr. Scanlan is not an attorney and you're

2 asking for legal advice.

3 MS. ROCCIA: Right.

4 THE WITNESS: I'm not --

5 MS. COLLINS: And he's not qualified to

6 provide legal advice.

7 THE WITNESS: Thank you.

8 MS. ROCCIA: All right.

9 THE WITNESS: I have no idea.

10 MR. ELLIS: Do you know what?

11 MS. COLLINS: Tom, did you want to...

12 MR. ELLIS: Yeah. I was going to say:

13 Let me make objections.


15 MR. ELLIS: I'm not making one. Go

16 ahead.

17 MS. ROCCIA: Oh. I thought you had one.

18 THE WITNESS: I was waiting as well.

19 MR. ELLIS: I realized that all of a

20 sudden --


22 MR. ELLIS: -- everything ground to a

23 stop.

24

Page 22


Michael Scanlan - Cross

1 BY MS. ROCCIA:

2 Q. Okay. Well, I think you have explained the

3 situation that -- that I'm in as far as the vendor

4 status. And I really don't know what else to ask you

5 because you've explained everything clearly.

6 MS. ROCCIA: Does anybody else have a

7 questions to ask him?

8 MR. ELLIS: I do.

9 THE WITNESS: Mr. Ellis will.

10 MS. ROCCIA: Okay.

11 CROSS-EXAMINATION

12 BY MR. ELLIS:

13 Q. Mr. Scanlan, just to go over some of the same

14 ground here: You're not an accountant?

15 A. That's correct.

16 Q. You're not a CPA and you're not a lawyer?


18 Q. Do you agree with the Pension Office that

19 initially it looked as if a data processor prior to your

20 time had entered information in with respect to

21 Mrs. Roccia that made the Pension Office conclusion that

22 she appeared to be full time in a pension-credible

23 position an accurate one?

24 A. Correct.

Page 23



1 Q. Okay. You didn't know, until apparently

2 fairly recently, the IRS has a 20 question test and a

3 form that folks are able to submit and have filled out so

4 that the IRS can give an independent view of whether or

5 not somebody in actuality is an independent contractor

6 who may sign something that calls itself an independent

7 contractor agreement. Correct?

8 A. Mm-hmm. Correct.

9 Q. Okay. And that independent -- maybe you don't

10 know. But the independent contractor test, that IRS 20

11 test, is not something new. Did you know that?

12 A. Yes.

13 Q. It's been around for a long time?

14 A. Mm-hmm.

15 Q. It's just something that now the Pension

16 Office has apparently instituted into the law to try to

17 eliminate problems in the future --

18 A. Correct.

19 Q. -- if there's uncertainty.

20 A. Correct.

21 Q. Okay. Now, the independent contractor

22 agreement was not your idea. You knew that it was

23 happening. I guess you gave your blessing. But it

24 didn't initiate with you, didn't start with you. It was

Page 24



1 something that administrators -- Mrs. Lewis, I suppose,

2 in particular -- had the power to approve or reject.


4 Q. Okay.

5 A. I did support it.

6 Q. Understood. Understood.

7 And, again, it was your wife, Debbie

8 Scanlan, who sent the e-mail to Mr. Craik's office. I

9 think you saw that --

10 A. Yes. I did.

11 Q. -- in which she reported that Mrs. Roccia's

12 employment with the school had been terminated.

13 A. Correct.

14 Q. But it didn't suggest that she was continuing

15 to teach there but as a vendor or as an independent

16 contractor. Correct?

17 A. (The witness indicated.)

18 Q. Okay.

19 THE REPORTER: I'm sorry. Your

20 response, sir?

21 THE WITNESS: No. I'm sorry.

22 BY MR. ELLIS:

23 Q. Okay. It didn't make any reference to the

24 fact that they were going to be -- Mrs. Roccia was going

Page 25



1 to be continuing as a teacher but as an independent

2 contractor?

3 A. No, it did not.

4 Q. Did you ask -- the data that was input that

5 suggested full-time employment suggested that Mrs. Roccia

6 was going to be making $53,000 a year in 26 payments. Is

7 that right?

8 A. I don't know the dollar figure, no.

9 Q. You don't remember --

10 A. I do know it was set up over 26 payments.

11 Q. You don't remember the exact numbers that you

12 typed in?

13 A. Correct.

14 Q. But it was -- do you remember that there was a

15 26- --

16 A. Yes, I do.

17 Q. Okay. Did you ask her precisely what the

18 nature of her teaching duties would be after she signed

19 the independent contractor agreement on October 1st,

20 2011?

21 A. No, I did not.

22 Q. Okay. Thanks.

23 MR. ELLIS: Nothing further. Thanks.

24 MS. COLLINS: Do you have any questions?

Page 26



1 MR. COOK: Just to clarify, Mr. Scanlan.

2 THE WITNESS: Yes.

3 MR. COOK: Who do you report to at the

4 school?

5 THE WITNESS: Ann Lewis.

6 MR. COOK: Ann Lewis.

7 THE WITNESS: Mm-hmm.

8 MR. COOK: Okay.

9 THE WITNESS: Anything else?

10 MS. COLLINS: And I guess for --

11 according to the records, when did Mrs. Roccia start at

12 Pencader Charter?

13 MR. ELLIS: We'll get into that, I

14 think.


16 MR. ELLIS: I'm going to cross-examine

17 her or ask her some questions.

18 MS. COLLINS: Okay. Thank you.

19 Okay.

20 MR. ELLIS: Thank you, Mr. Scanlan.

21 THE WITNESS: You're welcome.

22 MS. ROCCIA: If I need you, I'll call

23 you again, if I can't answer a question.

24 (The witness was excused.)

Page 27


Michael Scanlan

28

1 - - - - -

2 MS. COLLINS: Did you want to call

3 Mrs. Lewis now?

4 MS. ROCCIA: That would be fine. Sure.


6 MS. LEWIS: I'll get her on the record.

7 MS. COLLINS: Do you want to get her?

8 MR. ELLIS: I didn't know she was here.

9 ANN E. LEWIS, PH. D.,





14 BY MS. ROCCIA:

15 Q. I called you in basically to verify what

16 Michael had established -- that you and he had discussed

17 a contract status --

18 A. Right.

19 Q. -- once the letter came from the Pension Board

20 and that he supported you and you both supported each

21 other in that decision.

22 Correct?

23 A. Mm-hmm. Correct. Correct. We followed the

24 same procedure with all pensioners.

Page 28


Ann E. Lewis, Ph.D. - Cross

29

1 Q. Right. And -- okay.

2 MS. ROCCIA: Does anybody else have any

3 questions of Dr. Lewis?

4 MS. COLLINS: Do you have any?

5 MR. ELLIS: Yes, I do.

6 THE WITNESS: Okay.

7 (Pension Office Exhibit No. 1 was marked

8 for identification.)

9 CROSS-EXAMINATION

10 BY MR. ELLIS:

11 Q. Hello. I'm handing you -- I'm sorry --

12 Pension Office 1. Have you seen that before?

13 A. Yes.

14 Q. Okay. What is that?

15 A. This is the same letter given to all

16 pensioners terminating their position with the school

17 after the exchange with the Pension Office.

18 Q. Okay. And it was copied to Mr. Craik?

19 A. Right.

20 Q. And Mrs. Minnehan?

21 A. Correct. And an original went into each

22 pensioner's file.

23 MR. ELLIS: And that came to you,

24 Mrs. Roccia.

Page 29


Ann E. Lewis, Ph.D. - Cross

30

1 MS. ROCCIA: Yes, sir.

2 BY MR. ELLIS:

3 Q. When she was hired --

4 A. Mm-hmm.

5 Q. -- for the school year 2011-2012 --

6 A. Okay.

7 Q. -- in August, was your expectation that she

8 would be working as a full-time teacher?

9 A. She worked as a special teacher in an area

10 where not many teachers are qualified. She teaches the

11 Read 180 classes. One of the reasons we work with

12 pensioners is because of their status. And in the Read

13 180, there's a tremendous amount of training that's

14 involved. And Mrs. Roccia already had that training. So

15 it was something we didn't have to pay for.

16 Q. Okay. Thank you very much.

17 A. You're welcome.

18 MR. ELLIS: No further questions. Thank

19 you.

20 MS. COLLINS: Do you have any questions

21 for her?

22 MR. COOK: No.

23 MS. SHEVOCK: No.

24 MS. COLLINS: Okay. Thank you very

Page 30


Shirley E. Roccia - Direct

1 much.


3 - - - - -

4 MS. ROCCIA: What else can I do?

5 MS. COLLINS: Did you want to testify?

6 Or do you want to let Mr. Ellis ask you questions?

7 MS. ROCCIA: Why don't you ask me

8 questions, because I don't know what else you want from

9 me really.

10 SHIRLEY E. ROCCIA,

11 having been previously sworn as a witness,

12 was resumed on examination and testified

13 further as follows:


15 BY MS. ROCCIA:

16 Q. Mrs. Roccia, you live at 204 Pinehurst Road in

17 Wilmington, correct?


19 Q. Your birthday is March 17, 1945?

20 A. Yes.

21 Q. You retired from your teaching position at

22 Howard High School of Technology on June 30th of 2011?

23 A. Correct.

24 Q. That was after 27 years of state service?

Page 31



1 A. Yes.

2 Q. On August 22nd, 2011, you were sent a letter

3 by pension administrator David Craik advising you that

4 your pension application had been approved effective

5 July 1, 2011. Do you remember that?

6 A. I do remember that and I probably still have

7 it, yes.

8 Q. I'm handing you -- well --

9 MR. ELLIS: That's Pension Office 2.



12 BY MS. ROCCIA:

13 Q. Mrs. Roccia -- Roccia. Excuse me.

14 A. That's okay.

15 Q. I handed you a document which is the exact --

16 I'll hand you that one. We'll trade. Same one? Same

17 document. Right?

18 A. Yes, same.

19 Q. Okay. The one you got was obviously signed by

20 Mr. Craik and probably had a letterhead. What I handed

21 you was a copy of his letter to you of August 22nd, 2011.

22 A. Mm-hmm.

23 Q. And you see -- and you have to say "yes" or

24 "no." The reporter can't really interpret an "mm-hmm."

Page 32



1 That might mean anything.

2 If you read down to the fifth line, it

3 says you cannot receive a pension from the state

4 employees' pension plan fund during any month in which

5 you are an employee as defined under the provisions of

6 that plan unless you are one of the following five

7 things. And you were none of those. You weren't an

8 elected official, you weren't appointed by the governor,

9 you weren't a temporary employee, you weren't an elected

10 official, nor were you a substitute teacher. If you tell

11 me you were a sub, I'd want to know who you subbed for.

12 A. No. I was not a sub.

13 Q. Okay. Thanks. So you were on notice from the

14 middle of August that there might be a problem with going

15 back to teach. Right? Or did you not read that?

16 A. I'm sure I read it. But once I -- once I was

17 employed by Pencader, I was assured that there were other

18 pensioners working there as well. And, again, recalling

19 the presentation that I had attended two years prior, I

20 did not think that what I was doing was going to be a

21 problem. Okay? I didn't know how the school was going

22 to classify me or code me or whatever -- you know,

23 whatever. My position is a federally-funded position.

24 And, you know, I was assured that there would not be a

Page 33



1 problem.

2 Q. What were your hours in September of 2011?

3 A. 7:30 -- 7:30 to 3:00 -- ten minutes to 3:00.

4 Q. Five days a week?

5 A. Five days a week.

6 Q. Got paid every other week?

7 A. For the month of September I did, yeah.

8 Q. Mm-hmm.

9 A. Mm-hmm.

10 Q. How about after October 1st of 2011?

11 A. As a vendor?

12 Q. Mm-hmm.

13 A. Once a month.

14 Q. You'd invoice for teaching services?

15 A. Yes.

16 Q. But your service at the school hadn't changed?

17 You were still there --

18 A. I'm still --

19 Q. -- from 7:30 until 3:00?

20 A. Yes. As the Read 180 teacher, yes.

21 Q. As a Read 180?

22 A. Yes, mm-hmm. And, again, I was assured that

23 there were other pensioners working and this -- this

24 would not be a problem.

Page 34



1 Q. Mrs. Roccia, when you saw the way Leader

2 Lewis's letter was written, did it occur to you that if

3 it was read by Mr. Craik it could be misunderstood?

4 A. No.

5 Q. Well, let me ask you this. Did you think your

6 employment at Leader (sic) had been terminated?

7 A. It was terminated because I was no longer

8 working as a regular teacher. I was working as a

9 vendor --

10 Q. Mm-hmm.

11 A. -- all right, which puts me in a different

12 status or code or whatever you want to call it.

13 Q. Did you think that letter was incomplete?

14 Maybe it would have been more accurate to have said but

15 she's going to continue teaching but as an independent

16 contractor?

17 A. That wouldn't have occurred to me because this

18 letter simply says that I cannot work as a seasonal

19 employee, which was the incorrect coding, and that now my

20 status was terminated -- officially terminated -- or

21 position officially terminated. I wouldn't have thought

22 that anything else would have needed to be said.

23 Q. Really? If you got that letter -- that's

24 fine. Thanks. That's your copy.

Page 35



1 A. Mm-hmm.

2 Q. No one from the Pension Office ever told you

3 after September 28th of 2011 that by becoming a, quote,

4 independent contractor you wouldn't have a problem with

5 the Pension Office any longer?

6 A. No one told me there was a problem with it

7 until April 1st.

8 Q. Yeah. My question was: Nobody from the

9 Pension Office ever told you until April 1st that being

10 an independent contractor was going to be a problem?


12 Q. They told you it was a problem in April,

13 though --

14 A. April 1st.

15 Q. -- when you got that letter?

16 A. Yes.

17 Q. Let's see. So you got the termination

18 letter -- the employment termination from Leader Lewis

19 and they restored your pension. So you began --

20 A. Correct.

21 Q. -- receiving your payments on a monthly

22 basis --

23 A. Mm-hmm.

24 Q. -- from that point on.

Page 36



1 And then you got a letter dated

2 April 17th, 2011, not April 1st -- April 17th.

3 A. Okay.

4 MR. ELLIS: Pension 3.



7 MS. COLLINS: That's the 2012. Correct?

8 That's the incorrect date. It should be 2012.

9 MR. ELLIS: Right.

10 MS. COLLINS: Right. We just want to

11 make sure.

12 MR. ELLIS: Thank you.

13 BY MR. ELLIS:

14 Q. So your --

15 A. Yes. This is April 17th.

16 Q. You received that letter?

17 A. Yes, mm-hmm.

18 Q. And you appealed that decision --

19 A. Mm-hmm.

20 Q. -- terminating your benefits; correct?

21 A. Yes.

22 Q. And that's why you're here today?

23 A. Mm-hmm.

24 MR. ELLIS: Move for the admission of 1,

Page 37



1 2 and 3.

2 MS. COLLINS: So moved.

3 MR. ELLIS: I'm moving for the admission

4 of those three documents. Do you have --

5 MS. COLLINS: Any objection to those

6 documents being admitted into the record?

7 MS. ROCCIA: No, I don't.

8 BY MR. ELLIS:

9 Q. Mrs. Roccia, after October 1st, 2011, you

10 began to invoice the school through your business,

11 Educational Resources, for teaching services at $5,700 a

12 month. Correct?

13 A. Correct.

14 Q. And that's more than you had been paid the

15 previous month, your first, I suppose, and only paycheck,

16 as a, quote, full-time employee there. Correct?

17 A. What was done was the balance of my salary was

18 divided into the remaining checks, which would end in

19 June.

20 Q. Yeah.

21 A. Okay?

22 Q. Right.

23 A. So that would make that amount a little bit

24 higher, yes.

Page 38



1 Q. Yeah. Educational Resources, was is that?

2 A. It is my business name.

3 Q. And where is it located?

4 A. In my house.

5 Q. Do you have any employees?

6 A. Myself.

7 Q. Is it a partnership or is it a corporation

8 or --

9 A. It's a sole proprietorship.

10 Q. Got it.

11 A. I had that business several years ago when I

12 was working on a project -- an Internet project for the

13 state -- and created the business at that time. And then

14 it lapsed when I was finished with that project. And I

15 just renewed it in October.

16 Q. Okay. In October. And that was a temporary

17 license for two months, and then you got a yearly. I

18 mean, how does that work?


20 Q. Is that right?

21 A. I renewed it in October. And then in December

22 or beginning -- sometime for the new year they sent me

23 the application for the full year.

24 Q. Let me ask you a few questions about this

Page 39



1 independent contractor arrangement. Pencader Charter

2 never paid for your teaching services in a lump sum.

3 Correct? It was always split up either monthly or

4 biweekly?

5 A. Correct.

6 Q. Okay. You have never taught anywhere else but

7 Pencader since August of 2011; correct?

8 A. Correct.

9 Q. Now, you already said you are the sole

10 employee.

11 A. Sole, yes, of the company.

12 Q. You operate out of your home?

13 A. Yeah. That is my base.

14 Q. Okay.

15 A. It's where my supplies are.

16 Q. You had a business license that lapsed, but

17 you renewed it when you became a contractor of the

18 charter school.

19 A. Yes.

20 Q. Okay. Since you don't have any employees, you

21 didn't delegate your teaching responsibilities to the

22 Pencader Charter School; right?

23 A. No.

24 Q. Have you invested any of your money in

Page 40



1 Pencader that could return a profit to you or cause a

2 loss to you financially?

3 A. Invested any money in Pencader? No.

4 Q. Do you need supplies to conduct your teaching

5 activities at the school?

6 A. Yes.

7 Q. Who pays for them?

8 A. I paid for some of them. The school is -- the

9 school supplies some but not all.

10 Q. Do you get reimbursement for what's paid for

11 by you?

12 A. No, no. Pencader -- Pencader was short on

13 supplies, shall we say -- low on supplies. And many

14 teachers -- many employees there purchase their own

15 supplies. We were -- we constantly were running out of

16 paper. And so I purchased my own paper for running

17 things off.

18 Q. So when they couldn't afford supplies, you'd

19 pay for them yourself?

20 A. Yes.

21 Q. Otherwise they -- you would have looked to

22 them to pay for your supplies. Correct?

23 A. Normally a school gives you supplies.

24 Q. Mm-hmm.

Page 41



1 A. Okay?

2 Q. Mm-hmm.

3 A. But because of their -- you know, their

4 situation, they didn't always have supplies. They

5 counted on donations a lot of time. And some companies

6 would give donations of things like paper clips and paper

7 pads and things.

8 Q. How much are you out?

9 A. Oh, I don't know.

10 Q. Less than a thousand?

11 A. It could be a little bit more than a thousand.

12 A box of paper is like $54, $56. I'd have to give a

13 rough estimate. Maybe --

14 Q. A thousand?

15 A. Maybe a thousand.

16 Q. Mm-hmm.

17 A. Okay.

18 Q. Pencader Charter determines your hours of

19 teaching service. Correct?

20 A. Yes. They also require full-time teachers to

21 stay two days a week after school for extra help for

22 students. That's a requirement. It was not a

23 requirement for me.

24 Q. And you submit reports on your students and

Page 42



1 their achievements periodically throughout the school

2 year?

3 A. Of course.

4 Q. That's a part of the job?

5 A. That's a part of the job.

6 Q. Right. Did you think that after August 1st

7 you could delegate your teaching duties to some other

8 person that you might have employed?

9 A. No.

10 Q. They expected you to do the teaching because

11 of your special training. Correct?

12 A. Right.

13 Q. Yeah.

14 A. Mm-hmm.

15 Q. And they have and still do have the power to

16 hire -- they have the power to terminate your employment.

17 Correct?

18 A. Yes.

19 Q. You teach at the school, not at home.

20 A. Correct. Because I have two classes of 15

21 students that need the facilities there.

22 Q. Did you think that after October 1st you were

23 free to enter to -- enter into some teaching relationship

24 with some other entity besides Pencader Charter and teach

Page 43



1 at the same time?

2 A. Did I think that? No. I didn't even consider

3 it. I mean, I wouldn't have considered it.

4 Q. You'd expect them full -- they expected you

5 full time at Pencader Charter?

6 A. Well, let me put it this way. I know my

7 limitations. I don't think I could have done twice as

8 much work.

9 Q. You didn't work anywhere else?

10 A. No, I didn't work anywhere else.

11 Q. Just as Pencader Charter. And that was full

12 time -- 7.4 (sic) hours a day or more. Right?

13 A. From 7:30 to 3:00.

14 Q. Yeah.

15 A. Uh-huh. And I did not have to stay for the

16 extra time duty.

17 MR. ELLIS: No further questions. Thank

18 you, Mrs. Roccia.

19 Hang on one second.

20 BY MR. ELLIS:

21 Q. Is it your expectation that you're going to

22 teach at Pencader Charter next year?

23 A. Well, I was hoping to. I just learned of --

24 and I have to tell you how I learned of this. I went to

Page 44



1 a retirement party for a teacher at another school. And

2 the -- I was speaking to the new superintendent of the

3 New Castle County Vo-Tech School District. And she told

4 me there that there is an option to delay your pension

5 and continue working, which you've already delayed my

6 pension. So I am assuming that that is an option that I

7 could take advantage of. Now, I have to tell you:

8 Honestly, I never heard that option before. So I guess

9 that's a question I have to find out from the Pension

10 Board.


12 THE WITNESS: All right.

13 MS. COLLINS: Thank you very much.


15 - - - - -

16 MS. COLLINS: Did you want to call your

17 first witness?

18 MR. ELLIS: I'll call Mr. Craik.

19 MR. COLLINS: Okay.

20 DAVID CRAIK,




24

Page 45


David Craik - Direct


2 BY MR. ELLIS:

3 Q. Please state your full name for the record.

4 A. David Craik.

5 Q. How are you employed?

6 A. I'm employed in the State of Delaware Pension

7 Office.

8 Q. And are you the pension administrator for the

9 State of Delaware Pension Office?

10 A. Yes, I am.

11 Q. For how many years?

12 A. I have been the pension administrator for 15

13 years.

14 Q. In September 2011 did the Pension Office

15 receive an anonymous tip that three teachers at Pencader

16 Charter were collecting pension benefits from the state

17 pension fund while being paid for their full-time

18 teaching duties at Pencader?

19 A. Yes, we did.

20 Q. Was Mrs. Roccia one of the three teachers?

21 A. The tip did not include any names. Through

22 research that we did, we identified the three teachers.

23 And, yes, she was one of them.

24 Q. In September of 2011, was Mrs. Roccia

Page 46



1 receiving pension benefits? Roccia. Geez.

2 A. Yes, she was.

3 Q. When did she retire?

4 A. July 1st of '11.

5 Q. When she retired, did you send her a letter

6 advising her against returning to work for a state

7 employer unless her new job fell into one of the

8 statutory exceptions?

9 A. Yes. Yes, I did.

10 Q. I'm handing you Pension 2. Is that the letter

11 you sent to her?

12 A. Yes, it is.

13 Q. Okay. To your knowledge, did Mrs. Roccia ever

14 contact the Pension Office before she returned to work at

15 Pencader Charter, essentially less than two months after

16 her retirement?

17 A. I thought she had talked to Kim Vincent, but

18 we'd have to ask Kim. I had no direct conversations with

19 Ms. Roccia before then.

20 Q. What did your office do after receiving that

21 tip?

22 A. We determined that she was in a pension-

23 covered position while she was collecting her pension

24 check, so we suspended her pension effective October 1st.

Page 47



1 Q. Was an audit done? And if so, who conducted

2 the audit?

3 A. Kim Vincent would have conducted the audit.

4 Q. Okay. Again, just so the record is clear,

5 what were the actuarial concerns that you had about this

6 anonymous tipster with the information that was provided?

7 A. With the funding of the pension plan, it's --

8 we determine our annual contribution each year based on a

9 percentage of covered payroll. If there are positions

10 that are not -- that are normally pensioned-covered are

11 classified as casual, seasonal or contractual, we are not

12 getting in the employer contributions that we're

13 expecting. So each year there would be an actuarial loss

14 on the contributions we're expecting. So the next year

15 the employer contribution would increase to make up for

16 those losses. So if we have positions that continue to

17 be not paying into the pension plan, we would continue to

18 have losses and not have the contributions we expect come

19 into the plan.

20 Q. Thank you.

21 You sent a letter to Mrs. Roccia on

22 September 28th, 2011; correct?

23 A. Yes.

24 MR. ELLIS: Four.

Page 48





3 BY MS. ROCCIA:

4 Q. I'm handing you Pension 4. What is it?

5 A. It's my letter and -- dated September 28th,

6 2011 in which we notified Ms. Roccia that we were

7 suspending her benefits as of October 1st.

8 Q. What happened after you wrote that letter?

9 A. In mid October we were notified by an employee

10 of Innovative Schools that the employee had been

11 terminated.

12 Q. More accurate to say, her employment had been

13 terminated?

14 A. Yes.

15 Q. Mr. Craik, did Pencader Charter ever opt out

16 of the state pension plan?

17 A. No, they did not. So all of their employees

18 are participants in the state employees' pension plan.

19 Q. Did either Mrs. Roccia or School Leader Lewis

20 ever suggest to you or anyone in the Pension Office that

21 Mrs. Roccia would continue teaching at the school on a

22 substitute or a casual, seasonal or an independent

23 contractor basis?

24 A. No.

Page 49



1 Q. Did you learn in the spring of 2012 that

2 Mrs. Roccia -- Roccia -- in fact still was teaching

3 English at Pencader Charter?

4 A. Yes.

5 Q. For the period October 1, 2011 through

6 March 31st -- strike that. For the period October 1,

7 2011 through April 30th, 2012, was Mrs. Roccia retired

8 from state employment and receiving monthly pension

9 benefits?

10 A. Yes.

11 MS. ROCCIA: Not April.

12 MR. ELLIS: Yeah.

13 THE WITNESS: Through March 31st.

14 Correct.

15 BY MR. ELLIS:

16 Q. Let me ask it again. For the same period,

17 October 1, 2011 through March 30th -- March 31st, 2012,

18 was Mrs. Roccia receiving monthly pension benefits?

19 A. Yes.

20 Q. For that same period, was Mrs. Roccia employed

21 in a pension-creditable position with an employer that

22 participates in the state's pension plan?

23 A. Yes.

24 Q. And how did you determine that Mrs. Roccia's

Page 50



1 position as an English teacher was pension creditable?

2 A. We were looking at her hours in our initial

3 determination back in October. We looked at her payments

4 that she was receiving as an independent contractor and

5 compared her payments to some of the other salaries that

6 the teachers that were coded as pension credible.

7 Q. Creditable?

8 A. Yeah. But their salary -- and her salary was

9 higher than the pension-credible employees. So we

10 determined she was pension credible.

11 MR. ELLIS: No further questions.

12 MS. ROCCIA: May I?

13 MS. COLLINS: Yeah. You may ask as many

14 questions as you would like of Mr. Craik.

15 MS. ROCCIA: I think I explained why my

16 salary looked like it was higher, because my salary was

17 not going to be a 26-pay. It was going to be just till

18 the end of June. So they divided the total amount of my

19 salary that had been agreed upon. So that made my

20 payments look higher. It was not any higher really than

21 anybody else was getting paid. Actually, my salary is

22 less than most teachers.

23 MR. ELLIS any questions by the

24 trustees?

Page 51


Harrie Ellen Minnehan - Direct

1 MS. SHEVOCK: No.

2 MR. COOK: No.


4 - - - - -

5 MR. ELLIS: I'll call Kim Vincent.

6 Ms. Minnehan. Kim, I'll be right there.

7 HARRIE ELLEN MINNEHAN,





12 BY MR. ELLIS:

13 Q. Hello again. Tom Ellis.

14 Same question: In your role before you

15 were assigned, you were at the school but on an

16 occasional basis as meetings and special events dictated.

17 Is that right?

18 A. Correct.

19 Q. Okay. You don't really have any specific

20 personal knowledge of Mrs. Roccia's case or her

21 independent contractor contract or anything of that sort;

22 right?

23 A. No.

24 Q. A good teacher. Right?

Page 52



1 A. I assume.

2 Q. Okay.

3 A. I have no knowledge of her classroom teaching.

4 MS. COLLINS: Okay. Again, the Board

5 has very similar questions.

6 Can you describe your position and your

7 tenure in your interaction with Pencader Charter School?

8 THE WITNESS: I became the president of

9 the board April 5th, 2011. I resigned that position

10 June 1st, 2012.

11 MS. COLLINS: And can you describe the

12 function of the Pencader board and the responsibilities

13 and duties it has?

14 THE WITNESS: The task of the board is

15 to monitor the financial, budgetary and legal issues at

16 the school and to develop and maintain the proper

17 policies.

18 MS. COLLINS: Does the board have to

19 approve contracts that the school enters into or are

20 those delegated to someone else?

21 THE WITNESS: Generally the board keeps

22 track of vendor contracts so that we know that they're

23 within the budget.

24 MS. COLLINS: Okay. Is there a

Page 53



1 requirement that the board approve them individually or

2 is that delegated? Is that authority given to someone

3 else?

4 THE WITNESS: That authority has been

5 under the aegis of the school leader, but it should be

6 the school board.

7 MS. COLLINS: And the school leader

8 during the time frame you mentioned was?

9 THE WITNESS: Pardon me?

10 MS. COLLINS: Can you identify who the

11 school leader was during that time frame?

12 THE WITNESS: Ann Lewis.

13 MS. COLLINS: Was the issues with the

14 Pension Office and the questions about the classification

15 of the employees ever brought to the attention of the

16 school board?

17 THE WITNESS: No, it was not.

18 MS. COLLINS: And when was the first

19 time that you learned that there was an issue or question

20 about the way employees were being classified?

21 THE WITNESS: When I was contacted by

22 Jim Taylor, our attorney.

23 MS. COLLINS: And was that with

24 reference to the subpoenas that the Board of Pension

Page 54



1 Trustees issued to you?

2 THE WITNESS: And, to the best of my

3 knowledge, the rest of the board has not been apprised of

4 this.


6 MR. COOK: Just I read it in the paper.

7 Membership on this board is by application and then --

8 THE WITNESS: Typically in a charter

9 school -- it's different than a traditional school

10 district in which board members are elected.

11 MR. COOK: Right.

12 THE WITNESS: Yeah. We try and find

13 people with particular skills and knowledge that we need

14 to serve on our board.

15 MR. COOK: So they're not for set terms

16 or anything like that?

17 THE WITNESS: Yes, they are. For a two-

18 year term.

19 MR. COOK: Okay.

20 THE WITNESS: They can be elected for

21 one additional two-year term.

22 MS. SHEVOCK: I have a question.

23 Are there policies, procedures, bylaws

24 or does your charter document that the board relinquishes

Page 55



1 their fiduciary responsibility to the school leader?

2 THE WITNESS: That is not in the bylaws

3 and it is not in the policy -- Pencader is in the process

4 of developing a policy manual. They have never had --

5 MS. SHEVOCK: During this time that we

6 were talking about --

7 THE WITNESS: No, there was not.

8 Nothing was written.

9 MS. SHEVOCK: Okay. It was just

10 assumed?

11 THE WITNESS: More or less, yeah.

12 MS. COLLINS: Okay. Was there anything

13 else that you wanted to add or --

14 THE WITNESS: No.

15 MS. COLLINS: Okay. Did you have any

16 questions that you would like to ask?

17 MS. ROCCIA: Not really.

18 MS. COLLINS: All right. Thank you so

19 much for spending half the day with us. We really

20 appreciate it.

21 THE WITNESS: Okay. Thank you.


23 - - - - -

24 MR. ELLIS: I'll call Kim Vincent.

Page 56


Kimberly Sue Vincent - Direct

1 KIMBERLY SUE VINCENT,







8 BY MR. ELLIS:

9 Q. Good afternoon.

10 A. Good afternoon.

11 Q. State your full name, please, for the record.

12 A. Kimberly Sue Vincent.

13 Q. What is your job title?

14 A. Deputy pension administrator.

15 Q. For how many years have you occupied that

16 position?

17 A. Nine years.

18 Q. And what are your duties?

19 A. I administer day-to-day functions of the

20 Pension Office, including validating pension-creditable

21 service, compensation, applications, estimates,

22 counseling, appeal determinations, and analyze and

23 research information for new legislation.

24 Q. Soup to nuts in the Pension Office.

Page 57



1 A. Day to day.

2 Q. All right. Last fall did you conduct an audit

3 of the Pencader Charter schoolteachers, including

4 Mrs. Roccia, who were receiving state pension benefits?

5 A. Yes, I did.

6 Q. Why?

7 A. I received an e-mail directly from an

8 individual who indicated that there were three retirees

9 working in pension-creditable positions at Pencader.

10 Q. How did you conduct your audit?

11 A. I researched human resources and payroll

12 records in the state's payroll and HR system as well as

13 in First State Financial's accounting system.

14 Q. Did you, after your review of those records,

15 come to conclude that Mrs. Roccia was employed in a

16 pension-creditable position while teaching at Pencader?

17 A. Yes, I did.

18 Q. Okay. Specifically how did you come to that

19 conclusion?

20 A. My knowledge and reference back to the

21 Delaware Statute Title 29, 5502 that defines

22 employment -- allowable employment for pensioners and

23 then the definition of those positions within the rules

24 and regulations of the state employees' pension plan,

Page 58



1 which is in 1.0, full-time annual basis, regular

2 part-time annual basis.

3 Q. And what was -- how did you classify

4 Mrs. Roccia?

5 A. Full-time annual basis.

6 Q. And was that true of Mrs. Roccia both before

7 and after October 1, 2011 when she ostensibly became a,

8 quote, independent contractor?

9 A. Yes.

10 Q. I'm showing you a document marked Pension 5.

11 Have you seen that before?

12 A. Yes.

13 Q. Did you create that?

14 A. Yes, I did.

15 Q. Could you tell the Board of Pension Trustees

16 what is Exhibit 5?

17 A. The first two pages are Excel spreadsheets

18 that I created. The first one is for the appellant's

19 personal information as it relates to her paychecks and

20 vendor payments and some specific information about a

21 retirement date. The second page is comparison of her

22 salary to other individuals who are teaching English at

23 Pencader in what has been coded as pension-creditable

24 positions by Pencader. And the other pages are backup to

Page 59



1 that research.

2 Q. And the upshot of it all is what?

3 A. The upshot is that she had consistent wages

4 based on 75 hours on a biweekly basis and her pay was

5 actually twice -- or at the very most, at least one and a

6 half times that of fellow English teachers.

7 Q. And were the fellow English teachers making

8 less than her in pension-creditable positions?

9 A. Oh, yeah.

10 MR. ELLIS: I'll move for the admission

11 of 1 through 5.

12 MS. ROCCIA: Is that before or after

13 taxes, if I may ask?

14 MR. ELLIS: One second. Hold that

15 thought. Hold that question.

16 I'm moving for the admission of 1

17 through 5.

18 MS. COLLINS: Do you have any objections

19 to the admission of those documents?

20 MS. ROCCIA: No.

21 MS. COLLINS: So moved.


23 BY MR. ELLIS:

24 Q. I'm not going to have these marked. But I'm

Page 60



1 just asking you: Should they be a part of Exhibit 5?

2 A. And this being -- oh. What I just looked at

3 is Exhibit 5?

4 Q. You just gave me a handful of documents, and I

5 want to make sure that --

6 A. Yes, they are.

7 Q. -- the Board of Pension Trustees gets to see

8 all the documents you want them to see.

9 A. Yes. They are part of the Exhibit 5 and they

10 have my highlights on them as well.

11 Q. Okay. That's what I thought.

12 So let me show this to you.

13 MR. ELLIS: Do we have a copy for

14 Mrs. Roccia? Roccia.

15 THE WITNESS: I know. I always

16 mispronounce it.

17 MS. ROCCIA: That's okay.

18 THE WITNESS: All of this is an exact --

19 actually, all of this is a copy of what you have there.

20 MR. ELLIS: Could you give that to her,

21 please?

22 THE WITNESS: Certainly.

23 MS. ROCCIA: Thank you.

24 THE WITNESS: Mm-hmm.

Page 61


Kimberly Sue Vincent - Cross

62

1 MR. ELLIS: Okay. I move for the

2 admission of 5 as supplemented.

3 MS. COLLINS: Any objection,

4 Mrs. Roccia?

5 MS. ROCCIA: I'm sorry?

6 MS. COLLINS: Any objections to the

7 introduction of that document into evidence?

8 MS. ROCCIA: No.

9 MS. COLLINS: Okay. So moved.

10 MR. ELLIS: Cross-examine.

11 Thank you.

12 CROSS-EXAMINATION

13 BY MS. ROCCIA:

14 Q. This is entirely news to me. I mean, I -- the

15 only question I had: Are these figures before or after

16 taxes? Because as a vendor, I pay my own taxes. So --

17 A. These -- this is from PHRST while you're still

18 being paid --

19 Q. Yes.

20 A. -- through the payroll system. And these are

21 before taxes -- gross taxes. These are through the

22 vendor system, and it would not include any taxes.

23 Q. Right. Well, I'm actually looking at the

24 comparison figures here. I don't know why I would be

Page 62


Kimberly Sue Vincent - Redirect

1 making more than any other teacher there except if this

2 were a before tax figure.

3 A. Those are all before tax figures. All of them

4 are on that page.

5 MS. ROCCIA: Well, this is entirely news

6 to me. I had no idea that I was making more than any

7 other English teacher there. I wouldn't know that. We

8 don't discuss our salaries. I assumed that I was

9 probably making less.

10 REDIRECT EXAMINATION

11 BY MR. ELLIS:

12 Q. Do you recall any conversation with

13 Mrs. Roccia in August of last year before she began

14 working at Pencader Charter? There was a notion that

15 there was a conversation or an exchange of e-mails or

16 something that you told Mrs. Roccia "not a good idea."

17 A. Yes. On June 6th of 2011, I was contacted by

18 an employee from the Department of Education indicating

19 that Ms. Roccia would be retiring -- as we knew in the

20 office, she had submitted a pension application -- and

21 that she was going to be working at Pencader Charter

22 School. And the question posed to me by the Department

23 of Education employee was whether or not this was

24 allowable. And I said, no, Pencader participates in the

Page 63



1 state employees' pension plan. If she's teaching on a

2 regular basis, she cannot receive her pension benefit

3 during that period of time. And I responded by e-mail to

4 the DOE employee and I have a note that I forwarded that

5 on to Mrs. Roccia as well at her school e-mail address.

6 Q. Could I have that, please?

7 A. Mm-hmm.

8 Q. And we'll mark that as Pension Office 6.

9 A. It's item No. 1 at the top under General

10 Comments. Those are the general comments. I can make

11 the print bigger, if you would like.

12 Q. I'm sorry?

13 A. I can make the print bigger, if you would

14 like.

15 Q. Yes, please.

16 A. Okay. Do you want to enter it as evidence?

17 Then I can do that.

18 Q. Well, I tell you what. If you blow it up,

19 then let's put a stamp on it.

20 A. Okay.

21 Q. If you don't mind.

22 MS. ROCCIA: May I see it?

23 MR. ELLIS: Sure. We're going to make

24 her a copy as well, please.

Page 64



1 THE WITNESS: Certainly.

2 MS. ROCCIA: I don't recall getting an

3 e-mail of this at all.

4 MS. COLLINS: Kim, can you explain what

5 that -- is that a PeopleSoft document?

6 THE WITNESS: It is a PeopleSoft

7 document. It's -- it's actually a portion of a

8 chronological sequence of events -- 6/6, 10/20 and 10/21.

9 It's not noted here, but I would have

10 sent it to your school e-mail address. So not Pencader,

11 because you weren't employed there yet. But you retired

12 from New Castle County, am I correct, Vo-Tech?

13 MS. ROCCIA: Oh.

14 THE WITNESS: I would have sent it to

15 the last e-mail address I had for you, which was

16 New Castle County Vo-Tech, as of 6/6/11.

17 MS. COLLINS: Do you have a copy of that

18 e-mail?

19 MS. ROCCIA: No. I have no recollection

20 of getting that.

21 MR. ELLIS: Okay. Could you make two

22 copies? Blow it up and make two copies. I mean right

23 now. We'll wait and take a timeout.

24 THE WITNESS: Okay.

Page 65



1 (Whereupon there was a recess in the

2 proceeding.)



5 BY MR. ELLIS:

6 Q. Let's pick up where we left off.

7 Mrs. Vincent, I'm showing you Pension

8 Office No. 6. What is that?

9 A. These are comments from Ms. Roccia's file --

10 Q. Roccia.

11 MS. ROCCIA: Roccia.

12 THE WITNESS: I'm sorry.

13 -- Roccia's file in relevance to my

14 communication with her and the Department of Education

15 employee on June 6, 2011.

16 MR. ELLIS: Okay. Move for its

17 admission.

18 THE WITNESS: I'm sorry.

19 BY MR. ELLIS:

20 Q. She doesn't recall -- you never made a phone

21 call to her?

22 A. No, I did not.

23 Q. You sent an e-mail to her school?

24 A. That is correct.

Page 66



1 Q. Okay.

2 A. To her at her school address.

3 Q. Got it.

4 MS. ROCCIA: You know what? 6/9/11 I

5 was out of school already. That's why I don't get

6 this -- that's why I didn't get this e-mail.

7 MS. SHEVOCK: I was going to ask: What

8 was your last day?

9 MR. COOK: Yeah.

10 MS. ROCCIA: Yeah. Now that I'm looking

11 at it, the 9th was our last -- was our last -- the 8th or

12 the 9th was our last day.

13 MR. ELLIS: Office of pension rests.


15 Did you have any questions of

16 Ms. Vincent?

17 MS. ROCCIA: No.


19 - - - - -

20 MS. COLLINS: Okay. So if you would

21 like to make your closing statement.

22 MS. ROCCIA: Okay. I -- I would just

23 like to reiterate that when I went to the presentation of

24 the information to prospective pensioners, which was held

Page 67


1 by DSEA, and there was a board of -- pension board member

2 present there was an extensive conversation about whether

3 or not pensioners could be employed in a public school

4 again. And the conversation was very specific and said

5 as long as -- as long as the school does not pay into

6 your pension, then you are not crediting anything to your

7 pension. That was the understanding that I left there

8 with.

9 And when I became employed at Pencader,

10 I assumed that what I was doing was acceptable because

11 other pensioners were employed there. I was told that.

12 I was told it was all right. So if I have done anything

13 wrong, it was not my intention to create a problem or to

14 be a problem for anybody. And I -- as I said before, I

15 trusted what the school told me to do.

16 MR. ELLIS: Briefly, pension trustees,

17 we don't suggest that Mrs. Roccia intentionally misled

18 the Pension Office, that she committed any sort of fraud.

19 We say, regrettably, there was a failure of

20 communication. She relied on people, quite

21 understandably, her new associates at a school where she

22 was just beginning, and she relied upon advice that turns

23 out to have been sour, erroneous, not good.

24 Like unemployment insurance, you folks

Page 68


1 have a statute -- the Pension Office has a statute -- to

2 correct overpayments, whether they are the result of

3 fraud or whether they are a result of mistake -- mistake

4 by either the agency or by the individual. So we want

5 the Board of Trustees to take a look at that statute,

6 because we think it is implicated here -- should be used

7 here to recoup the overpayment from future benefits she

8 may be getting as she continues her career as an English

9 teacher, no doubt. Exactly the same way that the process

10 would work with unemployment insurance. I think it's set

11 up exactly the same way here. I think it's to correct --

12 I'm sorry -- to correct mistakes. This is not like the

13 previous case where, I think, arguably there was some

14 effort to be less than entirely forthcoming about what

15 was happening at the school. With respect to

16 Mrs. Roccia, I think she really did not know and she

17 really was depending on folks to help her walk the chalk

18 line.

19 Let me end where I started this morning

20 by reminding you of what the statutes are. 29 Delaware

21 Code, Section 5509 says that an employee shall mean an

22 individual who is employed on a full time or annual basis

23 or on a regular part-time basis as the term full time or

24 annual basis and regular part-time basis are defined in

Page 69


1 the rules and regulations adopted by you, Board members.

2 It goes on to say in the very next

3 provision, the provision that was quoted verbatim by

4 Mr. Craik in his letter of August to Mrs. Roccia,

5 Employment of Pensioners: An individual shall not

6 receive a service or disability pension under this

7 chapter for any month during which the individual is an

8 employee unless the individual is one of five sorts of

9 individuals, none of which applies, by her own admission,

10 to Mrs. Roccia. She is a full-time employee. Her hours

11 at the school, her duties at the school, they remained

12 unchanged from day one to the day of -- the school

13 ended -- seven and a half or whatever hours a day, as a

14 consequence of which we say she's in a pension-creditable

15 position, which meant she was not entitled to be

16 receiving ongoing pension benefits for that six-month

17 period of time.

18 And I thank for your patience.


20 Mrs. Roccia, can you give us, or maybe

21 Ms. Vincent, again your e-mail address so that when we

22 get the decision in September we can e-mail you a copy?

23 MS. ROCCIA: Yes.


Page 70


1 (The hearing concluded at 1:05 p.m. this

2 same day.)

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Page 71


1 C E R T I F I C A T E

2 STATE OF DELAWARE:

:

3 NEW CASTLE COUNTY:

4 I, Robert Wayne Wilcox, Jr., a Registered

5 Professional Reporter, within and for the County and

6 State aforesaid, do hereby certify that the foregoing

7 hearing was taken before me, pursuant to notice, at the

8 time and place indicated; that said witness was by me

9 duly sworn to tell the truth, the whole truth, and

10 nothing but the truth; that the testimony of said witness

11 was correctly recorded in machine shorthand by me and

12 thereafter transcribed under my supervision with

13 computer-aided transcription; that the foregoing hearing

14 is a true record of the testimony given by the witness;

15 and that I am neither of counsel nor kin to any party in

16 said action, nor interested in the outcome thereof.

17 WITNESS my hand and official seal this 16th day

18 of July A.D. 2012.

19

20

________________________________

21 ROBERT WAYNE WILCOX, JR.

REGISTERED PROFESSIONAL REPORTER

22 CERTIFICATION NO. 101-RPR

(Expires January 31, 2011)

23

24

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salaries 51:5 63:8salary 14:11 38:17

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teaches 30:10teaching 13:10

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witnesses 4:24,245:14 16:2

work 7:23 8:7,1010:11,14,22 11:3,1613:14 30:11 35:1839:18 44:8,9,1047:6,14 69:10

worked 11:6 30:9working 8:1 10:17

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written 35:2 56:8wrong 68:13wrote 49:8

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year 12:13 21:3 26:630:5 39:22,23 43:244:22 48:8,13,1455:18,21 63:13

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