COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

City of Boston,

Petitioner

v. Docket No. CR-06-408

Boston Retirement Board,

Respondent

Appearance for Petitioner:

Scott C. Merrill, Esq.

Foley Hoag LLP
Seaport World Trade Center West
155 Seaport Blvd.
Boston, MA 02210-2600

Appearance for Respondent:

Edward McKenna, Esq.

66 N Street
Boston, MA 02127

Appearance for Intervenors:

Paul T. Hynes, Esq.

45 Bromfield St., Floors 8 & 9
Boston, MA 02108-4106

Administrative Magistrate:

Kimberly A. Fletcher, Esq.

DECISION

On June 29, 2006, the City of Boston appealed the decision of the Boston Retirement Board approving the petition of the Boston School Police for Group 2 classification. The City appealed timely under the provisions of G.L. c. 32, § 16(4) (Ex. 1). On November 16, 2006, I allowed the motion to intervene filed on behalf of the Boston School Police Union. On the first day of hearing, May 1, 2007, held at the Division of Administrative Law Appeals, 98 North Washington Street, Boston, I allowed the amended motion to intervene to include the following members of the Boston School Police Union: David Rainsford, William Jackson and Gerard Lightford. On May 1, 2007, I admitted nine documents into evidence (Exs. 1 - 9. On July 12, 2007, an appendix was added to Ex. 2).

On July 10, 2007, I allowed the Boston Retirement Board's motion to quash the subpoena of its Chairman. The following individuals testified at the second day of hearing held on July 12, 2007: Paul Fitzgerald, Deputy Superintendent in the Boston Police Department and David Rainsford, Captain in the Boston School Police. Exhibits 10 - 20 were admitted. The Petitioner's pre-hearing memorandum is "A" for identification; the Respondent's pre-hearing memorandum is "B" for identification; and the Intervenor's pre-hearing memorandum is "C" for identification. There are two tapes of the hearing. Post-hearing memoranda were received and the record closed on October 15, 2007.

Findings of Fact

1. The Boston School Police ("BSP") force was established in 1978 to address the safety and security of approximately 136 schools and to establish a safe learning environment for over 63,000 students (Ex. 2).

2. The BSP is a division under the Department of Safety Services. The Chief of the Department of Safety Services is John Sisco, a civilian, who answers to the CEO of the Boston School Department who answers to the Superintendent of Schools (Ex. 2 and Fitzgerald, testimony).

3. The first five responsibilities of a School Police Officer as noted on the position description are:

• Takes appropriate action in the event of a disturbance or
incident as directed by Principal, Headmaster, or Chief of
Safety Services in accordance with the building security plan
and Department of Safety Service's procedures.

• Observes and reports any potential problem in or around the
School and effects appropriate action when necessary.

• Submits written reports as required by the Department of
Safety Services.

• Serves on emergency school support team as directed by Chief
of Safety Services.

• Investigates incidents as directed (Ex. 6).

4. There are 62 officers, 20 superior officers and five administrators in the BSP (Ex. 2).

5. The primary goal of the BSP is school-based community policing. BSP officers serve as a visible uniformed law enforcement presence in each school, as members of the faculty and administrative team working hand in hand to solve problems in the school community, as resources for law-related issues, as professional role models for students, and as teachers of safety education classes (Ex. 18).

6. Prior to becoming a BSP officer, an applicant fills out an application with the Boston School Department and undergoes a CORI check. It is not a Civil Service position. An applicant must attend a two-week course of training; there are no physical requirements (Fitzgerald, testimony).

7. An applicant to the Boston Police Department must pass a Civil Service exam, undergo a background investigation, and pass physical standards and a psychological evaluation. A Boston Police cadet attends a six-month course of training at the police academy prior to becoming a Boston police officer. The police academy has rigorous physical requirements (Fitzgerald, testimony).

8. BSP officers attend week-long annual training (Rainsford, testimony).

9. BSP officers do not carry firearms; they carry handcuffs and mace (Fitzgerald, testimony).

10. BSP officers cannot obtain warrants (Fitzgerald, testimony).

11. The BSP has about four or five motor vehicles in which supervisors travel to and from the various schools. The radios do not have Boston Police Department frequency (Fitzgerald, testimony).

12. The BSP officers work primarily during the daytime with a supervisor working a 4:00 to 11:00 p.m. shift. On occasion, a BSP officer is deployed to an evening athletic event, a dance or a PTA meeting (Fitzgerald and Rainsford, testimony).

13. The Quinn Bill is available to Boston police officers but not to BSP officers (Fitzgerald, testimony).

14. BSP officers are not subject to drug testing. Boston Police Officers are subject to drug testing (Rainsford, testimony).

15. BSP officers are licensed pursuant to the Boston Police Department's Rule 400A pertaining to "Special Officers Employed by the City of Boston or the Boston Housing Authority." Licenses issued to BSP officers are subject to annual renewal and may be revoked by the Boston Police Department (Ex. 9).

16. Pursuant to Rule 400A, BSP officers have the power to "make arrests, preserve order and enforce the laws of the Commonwealth and the ordinance of the City of Boston limited to the premises or locality specified in the license." The jurisdiction of the BSP is limited to school property (Ex. 9 and Fitzgerald, testimony).

17. If there is a dangerous situation on school property including the presence of a firearm, a BSP officer would deal with it immediately. If there is a prolonged search for a suspect, a BSP officer would call the Boston Police (Fitzgerald, testimony).

18. If a BSP officer finds drugs on a person on school property, he or she would make the arrest and log the drugs in with the Boston Police Department (Fitzgerald, testimony).

19. In approximately 2000, Paul Fitzgerald, currently Deputy Superintendent in the Major Case Division of the Boston Police Department, created a School Police Unit due to the fact that violence in the schools was on the rise. The purpose of the unit was for Boston Police officers and BSP officers to share information and collaborate (Fitzgerald, testimony).

20. In the 2002 Boston Police Annual Report, it was noted that as a result of the collaborative efforts of the School Police Unit, Boston's schools experienced an almost 10 per cent drop in overall incidents (Ex. 20).

21. At some point in 2005, the BSP Union sought Group 4 classification for its members. On October 13, 2005, the BSP Union amended its request to seek Group 2 classification from the Boston Retirement Board (Ex. 2).

22. On June 19, 2006, the Boston Retirement Board approved the petition of the BSP for Group 2 classification. On June 30, 2006, the City of Boston filed a timely appeal (Ex. 1).

Conclusion and Order

The decision of the Boston Retirement Board classifying the BSP for retirement purposes in Group 2 is reversed. The City of Boston has shown that the Boston Retirement Board erred in so classifying the BSP and that the correct classification for the BSP is Group 1.

Employees are classified for retirement purposes in groups 1 through 4 according to G.L. c. 32, § 3(2)(g). Group 1 contains, "[o]fficials and general employees including clerical, administrative and technical workers, laborers, mechanics and all others not otherwise classified."

Group 2 contains:

Public works building police; permanent watershed guards and permanent park police; University of Massachusetts police; employees of the Massachusetts Port Authority, comprising guards, guard sergeants, head guard and chief of waterfront police;…officers and employees of the general court having police powers; employees of the commonwealth or of any county,…whose regular and major duties require them to have the care, custody, instruction or other supervision of prisoners;…

Group 4 includes:

Division of law enforcement of the department of fisheries, wildlife and recreational vehicles…employees of the Massachusetts Port Authority at the General Edward Lawrence Logan International Airport, comprising permanent crash crewmen, fire control men, assistant fire control men; members of police and fire departments not classified in Group 1; any police officer of the Massachusetts Bay Transportation Authority… (emphasis added).

The Intervenors contend that they should be classified in Group 4 because they perform an important public safety function by responding to incidents and emergency calls and by performing police duties. The Legislature, however, "has consistently described employees falling within Group 4 by naming their positions or titles rather than by describing the type of work they perform." Gaw v. Contributory Retirement Appeal Board, 4 Mass. App. Ct., 250, 345 N.E.2d 908 (1976). Unfortunately for the Intervenors, the title of Boston School Police is not found within Group 4. I find that they are not within the parameters of "members of police and fire departments not classified in Group 1." The BSP is a division under the Department of Safety Services.

The Chief of the Department of Safety Services is a civilian who answers to the CEO of the Boston School Department who answers to the Superintendent of Schools. Although undoubtedly the BSP perform an important public safety function, I conclude that the job training, requirements, duties and functions of the BSP are not consistent with those of police departments in the Commonwealth that have been classified in Group 4.

At one point, the Intervenors argued that they should be classified in Group 2 because they were "public works building police." Although the BSP have jurisdiction in the public schools of Boston, and although the schools are public buildings, the BSP are not "public works building police."

Not only did the Legislature consistently describe employees falling within Group 4 by naming their positions or titles rather than by describing the type of work they perform, "the same is true of those included in Group 2," subject to two exceptions. Gaw, supra. The two exceptions pertain to state and county employees, not municipal employees, whose regular and major duties require them to have the care, custody, instruction or other supervision of prisoners, parolees or persons who are mentally ill, mentally defective or defective delinquents or wayward children.

The job title of Boston School Police is not found in Group 2 (nor in Group 4). The decision of the Boston Retirement Board classifying the BSP in Group 2 is therefore reversed; the correct classification is Group 1.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Kimberly A. Fletcher
First Administrative Magistrate

DATED: 4/14/08


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