COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Mark Patton, et al,

Petitioners

v. Docket No. CR-07-597

Falmouth Retirement Board,

Respondent

Appearance for Petitioners:

William M. Appel, Esq.

159 Washington Street
Lynn, MA 01902

Appearance for Respondents:

Nicholas Poser, Esq.

197 Portland Street
5th Floor
Boston, MA 02114

Administrative Magistrate:

James Rooney, Esq.


Summary

Falmouth Natural Resources officers are not entitled to re-classification in Group 4 because they are not "members" of a "police department."

DECISION

Falmouth Natural Resources officers Mark Patton, Charles Martinsen, Philip Lang, and Sarah Brooks timely appealed the July 26, 2007 decision of the Falmouth Retirement Board refusing to reclassify them from Group 1 to Group 4. I held a hearing on December 18, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington, Boston, MA. I also allowed the parties to depose the Falmouth Police Chief and Town Manager and enter their testimony into evidence.

I entered into evidence at the hearing documents offered by Petitioners, who titled one set of documents "Police Authority Documents" (P.A) and another set "Denial of Benefits Documents" (D.B). For clarity, this opinion will refer to exhibits as (P.A.) or (D.B.). The following additional documents submitted by the Board and Petitioners are in evidence:

Exhibit A: Letter from the Department of Natural Resources to the Falmouth Retirement Board requesting re-classification, dated March 15, 2007.
Exhibit B: Letter from Falmouth Retirement Board to Natural Resources Director Patton, dated July 26, 2007
Exhibit C: Notice of Appeal from Director Patton to DALA, dated August 1, 2007
Exhibit D: Petitioners' Pre-hearing Memorandum
Exhibit E: Deposition of Police Chief Anthony Riello
Exhibit F: Deposition of Town Manager Robert Writenour, Jr.

Findings of Fact

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

1. Petitioners are Department of Natural Resource Officers of the Town of Falmouth appointed by the Board of Selectman as "Police Officer[s] for Special Assignment" for the primary purpose of providing ecological and environmental protection of the town's natural resources. (P.A. Exs. 17 and 20 and Testimonies of Mark Patton and Robert Writenour, Jr.)

2. The Department of Natural Resources (DNR) of Falmouth consists of four employees: Director Mark Patton, Assistant Director Charles Martinsen, and officers, Philip Lang and Sarah Brooks. (P.A. Ex. 16.)

3. The DNR Officers, including the Director and Assistant Director, are currently classified for retirement purposes in Group 1 under General Laws c.32 s. 3 (2)(g). (D.B. Ex. 6.)

4. The DNR officers are appointed by the Town Selectmen, and their appointment must be renewed every few years. (P.A. 17.)

5. DNR officers are not under the direct control of the Falmouth Police Department and are not officers of the Police Department. (P.A. 25 and Testimony of Mark Patton.) The Director of the DNR reports to the Town Administrator, not the police chief. (P.A. Ex. 20 and 25, Ex. F.)

6. As Director of the DNR, Mark Patton's primary duties are to direct "the enforcement of laws relating to hunting, fishing, shell-fishing and animal control with particular attention to MGL Ch.90B, Ch. 130, Ch.131, and Ch. 140, and other applicable laws." As articulated in his job description, Director Patton is responsible for providing patrols of the harbors and woodlands, prosecuting illegal dumping violations, responding to natural and manmade disasters, such as hurricanes, and coordinating with the District Attorney's Office to prosecute offenders. (P.A. Ex. 20 and Testimony of Mark Patton.) Director Patton "works under the administrative direction of the Town Administrator" (P.A. Ex.20.)

7. The primary duties of Assistant Director Charles Martinsen are to "serve as Shellfish Constable/Herring Warden by assisting the Director of Natural Resources in the supervision of the enforcement of hunting, fishing, shell fishing, environmental, boating and animal control laws." As Warden, he has a responsibility to "prosecute[] violators through the court process" and "[e]nforce conservation regulations through the medium of cease and desist orders to stop illegal or improper projects." (P.A. Ex. 20 and Testimony of Charles Martinsen.)

8. There is no express grant of authority for DNR officers to make arrests or enforce all of the laws of the Commonwealth. (Ex. E. and Testimony of Mark Patton.)

9. All of the DNR officers wear both uniforms and badges. The badges read, "Falmouth Police" and show the Town of Falmouth seal. Identification cards list the officer's name, followed by "Officer of the DNR." DNR officers receive these articles from a uniform store in Hyannis, MA. (Testimony of Charles Martinsen.)

10. DNR officers drive state-registered trucks with police plates equipped with blue lights, sirens, shotguns, and police radios. (P.A. Ex. 19 and 21 and Testimony of Mark Patton.)

11. Officers are authorized through their appointment to carry a pistol, revolver, rifle, shotgun, billy, handcuffs, and "other such materials necessary to accomplish their assigned duties." (P.A. Ex. 17.)

12. Prior to appointment, DNR officers must pass firearms, baton, and pepper spray training through the Massachusetts Criminal Justice Training Council and graduate from the Massachusetts Police Academy. (P.A. Ex. 1, 2, 4, 5 and 6.) This training occurs alongside police cadets. Officers have transferred from the DNR to the Falmouth Police Department without additional training. (Testimony of Mark Patton.)

13. All DNR officers must continue to attend regular in-service trainings with the Massachusetts Criminal Justice Training Council, including annual re-qualification of semi-automatic pistols and shotguns. (P.A. Ex. 4, 16 and Testimony of Mark Patton.)


14. In addition to basic in-service requirements, Director Mark Patton attends monthly Massachusetts Training Council Southeastern Command seminars with the three police captains from the Falmouth Police Department. (P.A. Ex. 3 and Testimony of Mark Patton.) Assistant Director Martinsen has received certification in the Standardized Field Sobriety Testing, Marine Field Sobriety Testing, Police Operation of All Terrain Vehicles, Incident Response to Terrorist Bombings Performance Level Training Course, and Training in Rescue Boat Operations. (P.A. Ex. 7, 8, 9, 10 and 11.)

15. For 365 days a year, twenty four hours a day, DNR officers patrol the two major conservation areas set aside by the state, together with the Town's beaches, parking lots, and woodlands, looking for boating, shellfish, hunting and ATV violators. (P.A. Ex. 19 and Testimony of Mark Patton.) These patrols take up roughly 70% of Assistant Director Martinsen's time. (Testimony of Charles Martinsen.)

16. On patrol, the DNR officers have encountered dangers relating to their primary environmental concerns. Because ATVs are regularly used for drug trafficking, routine patrols of ATV paths have led to chases on foot and ATV, and often result in the seizure of cocaine or heroin. (P.A. Ex. 22 and Testimony of Mark Patton.) Officers have been injured when pursuing illegal ATV users. (P.A Ex. 42.)

17. Patrols of wooded areas are equally demanding on officers. In one incident, a DNR officer was radioed to assist in finding individuals who had threatened to kill the Game Warden after being cited for a hunting violation. The DNR officer intercepted the men in the woods, held them at gunpoint with his shotgun, and proceeded to disarm them. (P.A. Ex. 50.)

18. With repeating frequency, the DNR officers have been called upon to engage in non-environmental law enforcement. They have assisted the Falmouth Police in numerous drug raids and arrests and searched for a murder victim and a bank robber. (P.A Ex. 22, 43 and 46 and Testimony of Mark Patton.) They have aided Massachusetts Narcotics Division and the Massachusetts State Troopers by pursuing motor vehicles that have fled off road. (P.A Ex. 44 and Testimony of Charles Martinsen.)

19. The Town has also called upon DNR officers to perform police details. Massachusetts requires that a police officer be in attendance at the polling places. (P.A. Ex. 32.) DNR officers have been placed in charge of ballot boxes on election days. (P.A. Ex. 30 and Testimonies of Mark Patton and Charles Martinsen.) DNR officers have also assisted with security at town parades and special events. (Testimonies of Mark Patton and Charles Martinsen.)

20. In a letter dated March 15, 2007 to the Falmouth Retirement Board, Petitioners inquired specifically as to why, despite performing the same duties as police officers, and meeting the same requirements, they were paid less for retirement purposes. (Ex. A.)

21. In July of 2007, the Board informed the Petitions that it voted to classify DNR Officers in Group 1. (Ex. B.)

22. Petitioners filed an appeal requesting reclassification from Group 1 to Group 4 in a letter dated August 1, 2007, which the Division of Administrative Law Appeals received on August 3, 2007. (Ex. C.)


Discussion

Petitioners are not entitled to be reclassified in Group 4 under M.G.L. c. 32 s.3 (2)(g) because they are not members of a municipal police department.

G.L. c. 32 s.3 (2)(g) provides for a system of classification of employees for retirement purposes. Group 1, in which all officers of the Falmouth Department of Natural Resources are presently classified, includes, "Officials and general employees including clerical, administrative and technical workers, laborers, mechanics, and all others not otherwise classified." Group 4 includes, in pertinent part, "members of police and fire departments not classified in Group 1."
Employees who attain Group 4 status receive the maximum retirement allowance at an earlier age than those employees classified in Group 1. Gaw v. Contributory Retirement Appeal Board, 4 Mass.App.Ct.250, 250, 345 N.E.2d 908, 908 (1976). The monetary incentive was introduced to encourage public servants in physically demanding positions to retire early, so that younger, more able bodied individuals could replace them in the workforce. Id. at 254.

In endeavoring to determine the appropriate classification for the DNR officers, I note that the Legislature has "consistently described employees falling with Group 4 by naming their positions or titles rather by describing the type of work they perform." Id. at 254. As a result, "the test for eligibility is largely the employee's title or job description." Id. at 256. See Antonucci v. State Board of Retirement, CR-07-1055 (DALA 3/19/09); Ward v. State Board of Retirement, CR-01-1092 (DALA 1/24/-3); Savery v. Plymouth Retirement Board, CR-97-1802 (DALA 3/30/99).

There is no listing for municipal Department of Natural Resource Officer in Group 4 of G.L. c.32. s.3 (2)(g). Group 4 does include state fisheries and wildlife and the city of Haverhill's conservation officers. Thus, the Legislature is aware that offices like Falmouth's Department of Natural Resources exist, but it has not made a conscious decision to list a natural resource officer category that fits these offices within Group 4.

The Town of Falmouth Board of Selectman appoints a DNR officer as "Police Officer for Special Assignment," but this title also does not appear in Group 4. Had the Legislature wanted Group 4 to include individuals performing the job functions of a natural resource officer or a special assignment officer, it could have listed these jobs within the statute. Cremins v. State Board of Retirement, CR-08-627 (DALA 6/18/09).

Nonetheless, Petitioners argue that they function as police officers within the Town of Falmouth, and thus should be afforded the benefits of Group 4 status. (Ex. D.) This argument must ultimately fail. The legislature anticipated that individuals would hold jobs that serve some police functions, but limited eligibility to Group 4 by requiring that the police function be served on behalf of a "police department." Thus, performing police functions is necessary but insufficient to establish eligibility for Group 4. Failure to be employed by such a department will result in lower status classification.

For example, the Boston School Police, despite police academy training and authorization to arrest, were denied Group 4 classification because they were not employed by a police department, but rather worked for a division under the Department of Safety Services, whose Chief, a civilian, answered to the CEO of the Boston School Department. City of Boston v. Boston Retirement Board, CR-06-408 (DALA 04/04/08).

In contrast, the Boston Housing Authority Police were granted status in Group 4 because they shared in common 100% of the duties of Boston Police Department officers. The Boston Housing Authority have express arrest powers and access to criminal records. Housing Authority Police have job descriptions similar to those of the Boston Police officers, and often work side by side with the Boston Police Department. Both entities require training and recertification with the Massachusetts Criminal Justice Training Counsel. And importantly, the Boston Housing Authority Police is under the jurisdiction of the Boston Police Department. Because the duties and functions of the Boston Housing Authority Police were consistent with other police departments, and because the Housing Authority Police were under the Boston Police Department's jurisdiction, DALA re-classified them as "members of a police department" under Group 4. Boston Housing Authority v. Boston Retirement Board, CR-01-573 (DALA 04/25/01) (CRAB 01/31/03).

Here, there is no debate that the DNR officers exercise some police authority within Falmouth, but they are members of a local agency that is separate and distinct from the Falmouth Police Department. Like the Boston School Police, DNR Director Mark Patton does not report to the Falmouth Police Department. Rather he reports to the Town Administrator, and he is appointed by a civilian body, the Town Selectmen. His appointment is subject to renewal every few years. Unlike the Boston Housing Authority Police, the DNR officers do not have express arrest powers in their appointment. Finally, the DNR is not under the jurisdiction of the Falmouth Police Department.

I conclude that petitioners should not be re-classified under Group 4. Because neither the title of "Department of Natural Resources Officer" nor "Police Officer for Special Assignment" is listed in Group 4, the DNR officers do not qualify for Group 4 by virtue of their job titles. Although the DNR officers have some police functions, they are not members of a municipal police department, and hence are ineligible for Group 4 under the provision for "members of police and fire departments not classified in Group 1." The Falmouth Board of Appeals was correct in denying the DNR officers Group 4 status, and I affirm its decision.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ James P. Rooney
James P. Rooney
Administrative Magistrate


Dated: November 13, 2009