COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

David Knightly,

Petitioner

v. CR-07-681

State Board of Retirement,

Respondent

Appearance for Petitioner:

Michael Sacco, Esq.

285 College Highway
P.O. Box 479
Southampton, Ma. 01073

Appearance for Respondent:

Dennis Kirwan, Esq.

State Board of Retirement
One Ashburton Pl. - Rm. 1219
Boston, Ma. 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, David Knightly, is appealing the September 5, 2007 decision of the Respondent, State Board of Retirement, denying his request for creditable service for the period of time from January 10, 1985 through June 28, 1998 when he served as a chief deputy sheriff in the civil process division of Hampshire County (Exhibit 1). The appeal was timely filed in accordance with the provisions of G.L. c. 32 §16(4).

A hearing pursuant to G.L. c. 7 §4H was held on December 6, 2007 at the offices of the Division of Administrative Law Appeals, 98 N. Washington Street, Boston, Ma. Various documents were entered into evidence at the hearing (Exhibits 1 -32). The Parties' Pre-hearing Memorandum was marked as "A" for identification. The Petitioner testified in his own behalf. One cassette tape recording was made of the hearing. The record in this case was left open until January 6, 2008 for the filing of written closing arguments.

FINDINGS OF FACT

Based on the testimony and evidence presented, I make the following findings of fact:

1. The Petitioner, David Knightly, d.o.b. 12/9/35, was appointed as a Deputy Sheriff in the Civil Process Division of the Hampshire County Sheriff's Department on January 10, 1985. The oath was administered by Robert J. Garvey, the Hampshire County Sheriff (testimony of Petitioner).

2. On or about July 30, 1987, the Petitioner was appointed Chief Deputy Sheriff for Civil Process by Sheriff Garvey (Exhibit 4).

3. The Petitioner continues to serve as the Chief Deputy for Civil Process for Hampshire County up to and including the present date. His duties and responsibilities have not changed since the date of his initial appointment in 1985 with the exception of advancements made in technology and the implementation of a computer tracking system (testimony of the Petitioner).

4. The Petitioner's compensation has always been determined by the Sheriff and he reports directly to the Sheriff who has the sole discretion to terminate his employment at any time (testimony of the Petitioner).

5. The Petitioner's duties as Deputy Sheriff in the Civil Process Division include serving summons, complaints, and subpoenas for the Hampshire County Sheriff as well as overseeing the correctional facilities in Hampshire County (testimony of the Petitioner).

6. The Petitioner's office was initially located at the Hampshire County Jail; however, a few years later, his office was moved to Amherst, Ma. and in 1990, it was again moved to Northampton, Ma. (testimony of the Petitioner, Exhibit 7).

7. From the time of his appointment on January 10, 1985 through June 28, 1998, the Petitioner performed the duties of Chief Deputy Sheriff for Civil Process. The Civil Process Division of Hampshire County was organized and operated under the name of Hampshire County Sheriffs, Inc. (HCSI)(testimony of the Petitioner).

8. The compensation that the Petitioner received from HCSI was derived from serving civil process and was subject to social security withholdings (testimony of the Petitioner).

9. On or about June 28, 1998, the HCSI was formally absorbed into the Sheriff's Department and at that time, the Petitioner was enrolled as a member of the Hampshire County Retirement System (testimony of the Petitioner).

10. Subsequent to the merger, the Petitioner's compensation was derived from the general funds of the Commonwealth of Massachusetts and not from serving civil process (testimony of the Petitioner).

11. Pursuant to St. 1999, c. 127 §53, thereafter codified as G.L. c. 34B, Hampshire County was abolished on January 1, 1999 and at that time, the Petitioner had his membership transferred to the State Retirement System.

12. On February 7, 2007, the Petitioner contacted the State Board of Retirement to request that he be permitted to purchase his prior service rendered during the period of January of 1985 through June of 1998 (Exhibit 28).

13. On May 7, 2007, the State Board of Retirement asked for additional information and on August 1, 2007, the Petitioner provided that information (Exhibits 29&30).

14. On September 5, 2007, the State Board of Retirement sent the Petitioner formal notification that his claim had been denied (Exhibit 1).

15. On September 13, 2007, the Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 2).

CONCLUSION

G.L. c. 32 §4 provides in pertinent part that creditable service is available to an employee of a governmental unit. After reviewing the testimony and evidence provided in this hearing, I conclude that the Petitioner is entitled to purchase creditable service for the period of time that he was employed as a Deputy Sheriff in the Civil Process Division of the Hampshire County Sheriff's Department.

Employee is defined in G.L. c. 32 §1 as a person whose "regular compensation …is paid by any political subdivision of the commonwealth." Governmental Unit is defined in G.L. c. 32 §1 as "the commonwealth or any political subdivision thereof…"

In the current case, the Petitioner was at all times employed by the Hampshire County Sheriff's Department. For the period in question (1985 through 1998) up to and including the present date, the Petitioner has been employed as a Deputy Sheriff in the Civil Process Division in that office. The Hampshire County Sheriff determines his salary and his compensation is issued from that office.

The Hampshire County Sheriff's Department is a political subdivision of the Commonwealth of Massachusetts.

The facts and circumstances in this case are extremely similar to those of the case of Boston Retirement Board v. Contributory Retirement Appeal Board, Mass Appeals Court, 05-P, Memorandum and Order Pursuant to Rule 1:28 (October 11, 2006). In that case, Nate Lincoff had been appointed as the Deputy Sheriff for the Civil Process Division of Suffolk County on June 22, 1979. Despite the fact that he was employed on a full-time basis, he was not afforded membership in the Boston Retirement System. Commencing in May of 1984, Mr. Lincoff held various positions within the Suffolk County Sheriff's Department that entitled him to membership in the Boston Retirement System and he continued in this capacity until his retirement on September 20, 2002. Immediately prior to his retirement, the Petitioner requested that he be entitled to purchase his prior service during the period of time that he was denied membership in the Boston Retirement System from 1979 through 1984. In Boston Retirement Board, supra, it was held that Mr. Lincoff was entitled to purchase this prior service as it was determined that he was at all times employed by the Suffolk County Sheriff's Department in the Civil Process Division and that the Suffolk County Sheriff determined his compensation.

The Respondent contends that the Petitioner was not a public employee during the time during the period of time in question that he worked in the Civil Process Division of the Hampshire County Sheriff's Department as his salary was not generated by public monies. The Civil Process Division was funded by fees set by statute, G.L. c. 262 §8, paid by both private and public entities for process serving. Additionally, the Respondent notes that the Petitioner was not a member of the State Retirement System at that time nor did he have retirement deductions taken from his compensation. Rather, the Respondent stresses that the fact that the Petitioner had social security withholdings for the four years in question precludes him from receiving creditable service for the same period of time.

The fact that the salary for the Petitioner's position in the Civil Process Division was generated by fees set by statute rather than appropriation from the Commonwealth of Massachusetts and/or Hampshire County does not alter the fact that the Petitioner was still employed by the Hampshire County Sheriff's Department at that time. Since the Hampshire County Sheriff's Department, as previously stated, is a governmental unit, the Petitioner is not precluded from receiving creditable service for the period of time that he worked in the Civil Process Division simply because the fees for that Division were generated by statute rather than appropriation.

Although Mr. Knightly had withholdings for social security taken from his salary during the time period in question, there is nothing in Chapter 32 that precludes the awarding of creditable service merely because an employee paid into the social security system during the same time frame. See Boston Retirement Board, supra, where Mr. Lincoff, was permitted to purchase creditable service for the period of 1979 through 1984 when he was employed as a Deputy Sheriff in the Civil Process Division in that office and had withholdings for social security taken from his salary during that time. See also Betty Belton v. Springfield Retirement Board, CR-93-1071 (DALA dec. 5/22/95; no CRAB dec.) where Ms. Belton, an employee of the City of Springfield had social security withholdings from her salary for a period of time when her compensation was paid through the Springfield Action Commission Concentrated Employment Program. Ms. Belton was permitted to purchase creditable service for the period of time in question, despite the social security withholdings, as at all times she was paid by the City of Springfield and all of her service was rendered for that governmental unit.
The decision of the State Board of Retirement is reversed. The case shall be remanded to the State Board of Retirement to permit the Petitioner to make the appropriate payments to enable him to purchase creditable service for the period of time from January 10, 1985 through June 28, 1998 when he served as Deputy Sheriff in the Hampshire County Sheriff's Department.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS


Joan Freiman Fink
Administrative Magistrate


Dated: 3/21/08


This information is provided by the Division of Administrative Law Appeals.