while they try to say she didn't give consideration for his salary that the additional compensation she perceived she stopped making the payments to hope he had in two thousand and four she worked an additional you look in the record south and it's in our briefing a fire and in the court record it to ninety one i believe the stipulation of the parties was th is working as saying once you stop paying kickbacks and it appeared to your regional office that you were doing this work that back in this  may i yes please not because there's not an issue about whether she did the mark that's never there's nothing in this practice if you didn't do it in fact the only evidence and the record is that you perform all the additional due for the compensation that was received this spike t r s wanting to argue that there's not there stipulation years that she did they have no evidence that she didn't do that and if they were going to take that and they have to have some evidence that she was well really doing the work there are two issues before the kid before the court in this case first issue is whether or not compensation paid to miss adams as a result of her scheme with her boss to kick back portion or salary under the he or s rules and regulations the second issue case is whether or not your ass properly imposed a constructive trust over the increase in the pension ability of t r s to do what they did the first issue has to do with the interpretation of the regulations and before we get into that in order to interpret the regulations we have to look at stipulation number five which we've attached as part of the abstract the brief and that stipulation stated as follows hold greeted adams request for  on condition that she paid him one half of the net after taxes proceeds on a monthly basis that's the that's a key fact then we look to the break elations of t r s and means any form of credible compensation received by a member in consideration of services rendered by teachers he works in that are in consideration of services render really have any do with this i mean we were just here several months ago in the sartwell case in which the one of the issue was whether or not something qualified is credible it's credible earnings under the definition sally it was a conversion case it didn't have anything to do with a situation like this one let me just ask you this way that it's a question yes it's really what did the legislature mean when they threw in this qualifier  define salary which they have done in the regulations of course it's subject to review by by court you reviewed the sartwell case it's been reviewed in a lot of different situations none of which really painted to this situation just say hey you know we're going to do this on a on a piecemeal basis we've actually promulgate regulations which have been found to be valid as i've said before you know this court addressed not not this issue and i don't even want it to imply that but you look at some of these regulations to find salary and you didn't say the regulations were ok you disagree with me on one point which you know that's that your job to do but you didn't throw out the regulation you didn't say the regulation defining what's fast salary is fair and this regulation clearly says that it's credible compensation received by a number in consideration of services rendered by teacher she received the pay increase by her own stipulation hopper services rendered by teacher but because he agreed she agreed to kickback part of the thousands and thousands of people in the state who are asked by their bosses to perform additional work that don't receive anything additional and in fact she asked him originally for a pay increase and he said no it was only after a few rea right on that they haven't yet because we're still awaiting a final determination she she raises several different arguments some of which addressed already been addressed questions here or to myself  counsel but all the rest some of the others one of the argument she raised wasn't this came within the extra duties example of salary which is found sixteen fifty point four fifty two that does not apply clearly this was there was nothing extra about this this was part of her job sponsibility that particular portion of the regulation is designed to address a situation where a teacher for doing lunchroom duty or for having a club sponsorship like your book it was nothing extra about this this was just part of her job sponsored bill it's another argument she raises with this argument is that it wasn't what she did with the money after she got it that's the problem it's how she earned the money she didn't earn the money because of services rendered as a teacher she got the money to mr cole and when it was appealed to the claims review committee and ultimately the board they disallowed the entire second issue that wasn't addressed by council but i think is equally important is this whole construct is a an equitable remedy and it's designed to perform to prevent i'm just rich and it's been applied in a number of situations involving public corruption cases the first of those was conflict of interest and transferring it to the innocent beneficiary that faith is not an essential element of disloyalty and good faith is no defense to the charge force are not interested in coppery public corruption cases that's been applied to recover from those people who are paying for rides those people she writes it's been applied in situations where the courts of found that there's walk what would happen in this case is exactly what we have already done we have essentially disallowed the increase in the pension that would have resulted from this corrupt scheme her pension benefits will be reduced by by that amount because she will not be allowed to receive credit for earnings and we will recruit the amount of additional payments that have been made rule on the first issue of the definition of celery we will arrive at the same ultimate point if you rule on the construct of prestige however i would say to you that this is going to be with you very instructive going forward other pension systems and i think it is very well supported by the law that pension systems do you have a right to impose a constructive trust or situation a constructive trust so whatever should be approached i still don't understand what the step what that remedy it's so well i'm not going to turn down a win on if you look back at the it's the recommended decision of the claims review committee that is clearly addressed and that was of course approved by by the board of trustees yes that is that is part of  decision it's not the only basis because it was based both upon the disallowance because it didn't cost him salary but alternatively on the constructive trust remedy as well let me go back to the reason we disallow it was because you look at stipulation five and you look at the record you look at the deposition testimony in the grand jury testimony there's no question she got the increase because of mean i don't know if you say she would have done or she wouldn't but if let's say she had done it and let's say that she just continued to make instead of twenty four thousand dollars addition and she made her base salary and she didn't do the work and that's what she would have got better base salary and we would have been you know just fine but but everybody who is assigned extra responsibilities doesn't get a pain with this court doesn't get a pay increase different well i think it probably would have been different but i'm not sure it would have been kosher well the real key here is why she got them so we don't need your position is we need not concern or cells with those questions i don't think you know i don't think you have to whether she did the money or whether she did the work or she didn't do the work wife whether she would have kept the job or not kept the job i think you have an address that we all know that there is a way that you can present light on i'm just concerned about  what if it was all a gentleman what if it was needed what she performed would work and other that matters what if this court gets an increase caseload you say i'm not right i have to confess counsel i still don't quite understand we're going with that aspect of time well i think that we would be very i think you would be very instructive to pension systems about the state on how that works and i think that it is clearly raised here and it's clearly an appropriate legal issue out force will be up you know you decide it's raising my you right in your brief not by that allows them to do what they did they just say they have to right consider this west south but the definition in chapter eight section sixteen fifty point zero four fifty set an example of  compensation recognised as salary is additional compensation earned during the school year for the performance of extra duty that's exactly what and while they say they keep pointing back to stipulation number five calling agreed to to give adams the pay raise on the condition of paying over one half of him there is no stipulation there's nothing in the record says if she had agreed to do that he would have given i think it's also interesting is in the pallies free there's often discussion about what the record says what about without citation to the record their comments about with the grand jury testimony said without any specific reference to the record because know they're going back and they're saying you know this was criminal and that they're they're looking at all kinds of different things grand jury testimony they're not just saying they've made a factual determination  in terms of the actual investigation of the situation they made this decision after the fact they decided you know the same way they sat it well what she paid of him should be south now it's whatever she got shouldn't be salary was never a question about she didn't do the work until we get to the great when they said well you know she didn't she didn't do the work and that's what's in the past and that's not what's in the past you still have to list this very seriously question about constructive person h say it sours she did the work that was never an issue bad judgment not defending what she did but the issue here is what the law requires and these are are not human to this court with all due my question is whether the law requires her to get the benefit of the pension law that she that was operating at the time for the work that she did for the money that she heard for the taxes you know that she