COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Jon M. Cremins,

Petitioner

v. Docket No. CR-08-627

State Board of Retirement,

Respondent

Appearance for Petitioner:

Jon M. Cremins
48 Graves Street
South Deerfield, MA 01373

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement
One Ashburton Place, Rm. 1219
Boston, MA 02108

Administrative Magistrate:

Bonney Cashin

Summary of Decision

The petitioner, a campus police officer, is not entitled to be classified in Group 2 or Group 4 for retirement purposes.

DECISION

Introduction

Jon M. Cremins appeals, pursuant to G.L. c. 32, § 16 (4), the August 29, 2008 decision of the State Board of Retirement to classify him for retirement purposes in Group 1 rather than Group 2 or Group 4.

Mr. Cremins requested that his appeal be decided based on written submissions in accordance with 801 CMR 1.01 (10) (c), and the parties agreed to waive a hearing. On December 29, 2008, I ordered the parties to submit stipulations of fact, written arguments, and proposed exhibits by January 29, 2009. The Board filed a statement of facts, six proposed exhibits, and its supporting argument. Mr. Cremins filed one exhibit (his appeal) and written argument, which included facts about his training, job duties, and experience.

The following documents submitted by the Board are in evidence:

Exhibit 1: Letter from State Board of Retirement to Mr. Cremins, dated August 29, 2008.
Exhibit 2: Appeal letter dated August 30, 2008.
Exhibit 3: Mr. Cremins's Group Classification Questionnaire, with attachments,
dated August 4, 2008.
Exhibit 4: Benefit Guide for the Massachusetts State Employees' Retirement System.
Exhibit 5: Mr. Cremins's letter requesting a submission without a hearing dated
September 20, 2008.
Exhibit 6: Notice and Order dated December 29, 2008.

Findings of Fact

Based on the evidence in the record, I make the following findings of fact:

1. Mr. Cremins was employed by Holyoke Community College as a Campus Police Officer I from October 31, 2005 until he retired on November 13, 2008. (Exh. 3 and Exh. 5).

2. Mr. Cremins completed a Group Classification Questionnaire on August 4, 2008 and submitted it to the Board together with his current job description and most recent performance evaluation. (Exh. 3).

3. At its meeting on August 28, 2008, the Board voted to classify Mr. Cremins in Group 1. (Exh. 1).

4. The Board informed Mr. Cremins of its decision by letter dated August 29, 2008. (Exh. 1).

5. Mr. Cremins filed an appeal, dated August 30, 2008, which the Division of Administrative Law Appeals received on September 3, 2008. (Exh. 2).

6. Mr. Cremins's job duties are to: patrol campus buildings and adjacent areas; investigate crimes or other incidents; enforce motor vehicle laws on campus, restrain or arrest suspects when necessary; respond to police and medical emergency calls; provide assistance to courts or grand juries of prosecution of cases; and perform related work as required. (Exh. 2 and Exh. 3).

7. Mr. Cremins arrested and transported criminal offenders; he also disarmed and arrested a student with a handgun, assisted in the arrest of a student wielding a martial arts sword, assisted in stopping a knife fight, and investigated a rape allegation. (Petitioner's filing dated January 9, 2009.)

8. There are no minimum entrance requirements for a Campus Police Officer I; however, appointees must be eligible for appointment as a special police officer under G.L. c. 147. (Exh. 3).

Conclusion

Mr. Cremins filed his appeal within 15 days of the date the Board notified him of its decision. His appeal, thus, is timely.

Employees are classified for retirement purposes in one of four groups according to G.L. c. 32, § 3 (2) (g). Group 1 is a general category that applies to "[o]fficials and general employees including clerical, administrative and technical workers, laborers, mechanics and all others not otherwise classified." G.L. c. 32, § 3 (2) (g).

Group 2 contains:

[p]ublic 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; officials and employees of the department of public safety having police powers;…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; and 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 parolees or persons who are mentally ill or mentally defective or defective delinquents or wayward children …. G.L. c. 32, § 3 (2) (g).

Group 4 contains:

[d]ivision of law enforcement of the department of fisheries, wildlife and recreational vehicles; conservation officer of the city of Haverhill having duties similar to a law enforcement officer of the department of fisheries, wildlife and recreational vehicles; …members of police and fire departments not classified in Group 1; any police officer of the [MBTA];…employees of the department of correction who are employed at any correctional institution or prison camp under the control of said department and who hold the position of correction officer, female correction officer, industrial instructor, recreation officer, assistant industrial shop manager, industrial shop manager, assistant to the supervisor of industries, supervisor of industries, senior correction officer, senior female correction officer, supervising correction officer, supervising female correction officer, prison camp officer, senior prison camp officer, supervising prison camp officer, assistant deputy superintendent; employees of the parole board who hold the position of parole officer or parole supervisor;…the sheriff, superintendent, assistant superintendent, assistant deputy superintendent and correction officers of county correctional facilities….
Id.

An employee's group classification is based on his "job duties at the time of retirement." Maddocks v. Contributory Retirement Appeal Bd., 369 Mass. 488, 493, 340 N.E.2d 503, 506 (1976). Mr. Cremins was a Campus Police Officer I when he retired.

Mr. Cremins is not eligible for classification in Group 4. "[T]he Legislature 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 Bd., 4 Mass. App. Ct. 250, 345 N.E.2d 908, 911 (1976). "Campus Police Officer" is not listed within Group 4. Prior administrative decisions have concluded that those with the title of campus police officer do not fall within Group 4. Ward v. State Bd. of Retirement, Docket No. CR-01-1092 (DALA 2003) at 7. Had the Legislature wanted Group 4 to include individuals performing the job functions of a campus police officer, it would have referenced that job title within the statute. Ball v. State Bd. of Retirement, Docket No. CR-05-443 (DALA 2006; aff'd. CRAB 2007).

Mr. Cremins is not eligible for classification in Group 2. The majority of the job titles and classifications in Group 2 are related to public safety. For example, the group includes park police, University of Massachusetts police, certain employees of the Massachusetts Port Authority, and officers and employees of the department of public safety and of the general court having police powers. G.L c. 32, § 3 (g) (2). Some of Mr. Cremins's job duties at Holyoke Community College are related to public safety. Nonetheless, "Campus Police Officer" is not listed as a job title or position within Group 2. Had the Legislature wanted Group 2 to include individuals performing the job functions of a campus police officer, it would have referenced that job title within the statute. Laukaitis v. State Bd. of Retirement, Docket No. CR-01-682 (DALA 2002).

Group 2 also includes "employees of the commonwealth ... whose regular and major job duties require them to have care, custody, instruction or other supervision of prisoners; and employees of the commonwealth ... whose regular and major job duties require them to have care, custody, instruction or other supervision of parolees or persons who are mentally ill or mentally defective or defective children or defective delinquents or wayward children...." G.L. c. 32 § 3 (g) (2). While these classification categories permit an examination of one's job duties, they nonetheless do not help Mr. Cremins in his attempt to prevail here.
Nothing in Mr. Cremins's official job description or in the additional information he provided about his job training and responsibilities supports a finding that his regular and major duties include dealing with prisoners or the mentally ill as required for classification within Group 2. Mr. Cremins arrested and transported criminal offenders. He described circumstances when he disarmed and arrested a student with a handgun, assisted in the arrest of a student wielding a martial arts sword, assisted in stopping a knife fight, and investigated a rape allegation. While these are dangerous situations and similar to those a police officer may encounter, Mr. Cremins has not described the frequency of these encounters or otherwise provided evidence that would allow me to conclude that his regular and major duties fall within the groups of employees described above.

Mr. Cremins is not eligible to be classified in Group 2 or Group 4. Accordingly, I conclude that Mr. Cremins was properly classified for retirement purposes in Group 1.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

/s/
Bonney Cashin
Administrative Magistrate


Dated: June 18, 2009