THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Bryan Silva,

Petitioner

v. Docket No. CR-06-641

State Board of Retirement,

Respondent

Appearance for Petitioner:

William Lundregan, Esquire

71 Washington Street, 2nd FL
Salem, MA 01970

Appearance for Respondent:

William J. Eagan, Esquire

Legal Department
State Board of Retirement
One Ashburton Place, RM 1219
Boston, MA 02114

Administrative Magistrate:

Judithann Burke

DECISION

The Petitioner, Bryan Silva, is appealing from the September 5, 2006 decision of the Respondent, State Board of Retirement (SBR), denying his request for reconsideration of his classification by the SBR in Group 2 for retirement urposes.

The Petitioner seeks Group 4 classification. (Exhibit 7). The appeal was timely filed.

(Exhibit 8). A hearing was held on October 24, 2007 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, eight (8) exhibits were marked. The Petitioner testified in his own behalf. Both parties stated their arguments for the record. One (1) tape was made of the proceedings. The record was left open for the filing by the parties of post hearing memoranda of law. The Respondent also filed a Motion to Strike any evidence on the merits based upon issue preclusion. The last of the filings was received at DALA on November 16, 2007 thereby closing the record.

PROCEDURAL HISTORY

The Petitioner, Bryan Silva, d.o.b. 6-06-56, began employment with the Commonwealth of Massachusetts on July 10, 1988. He was employed by the Essex County Sheriff's Department as a Maintenance/Janitor from November 1991 through March 15, 2001. The Petitioner left work at that time due to a chronic condition of sleep apnea and Type II Diabetes Mellitus. He was retired on ordinary disability on November 29, 2001. He was classified in Group 2.

On December 27, 2001, the SBR denied the Petitioner's request for Group 4 classification and again classified him in Group 2. The Petitioner filed an appeal on January 21, 2002 and requested an expedited hearing at DALA.

A hearing was held at DALA on April 3, 2002. In a DALA Decision dated May 3, 2002, Administrative Magistrate Maria Imparato affirmed the decision of the SBR and concluded:

The Legislature has "consistently described employees falling within Group 4 by naming their positions or titles rather by describing the type of work they perform". Gaw v. CRAB, 4 Mass. App. Ct. 250, 345 N.E. 2d 908, 911 (1976). The Petitioner falls squarely into Group 2 because his position of
Maintenance/Janitor in the Essex County Sheriff's Department required him to have the care, custody, instruction or other supervision of prisoners.

Bryan Silva v. State Board of Retirement, CR-02-027 (DALA Decision May 3, 2002; no CRAB Decision).

On August 11, 2006, the Petitioner wrote to the SBR and requested that the board reconsider its previous denial of Group 4 classification. In a letter dated September 5, 2006, the SBR denied the Petitioner's request for reclassification.

On September 16, 2006, the Petitioner appealed to DALA.

ARGUMENTS

The Respondent contended that, in the instant case, the Petitioner's eligibility for Group 4 classification has been decided and the doctrine of issue preclusion applies to this matter. Citing Joseph Murkette v. State Board of Retirement, CR-05-483 (DALA Dec. 08/24/07; no CRAB Dec.), and Green v. Town of Brookline, 53 Mass. App. Ct. 120 (2001), the Respondent argued that issue preclusion may be used defensively if "(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom the estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication; and, (4) the issue decided in the prior adjudication was essential to the earlier judgment".

The Respondent submitted that, in this case, there was a final judgment on the merits in the prior DALA adjudication which determined that the Petitioner was properly classified in Group 2.

The Petitioner argued that the doctrine of issue preclusion should not be applied in the administrative context where there is an insufficiency in the record below. The Petitioner submitted that, where it cannot be determined from the record whether the Respondent simply voted to deny any reconsideration of the Petitioner's case, or alternatively, did reconsider the case and then voted to deny reconsideration, issue preclusion should not bar a new hearing on the merits.

RULING

The Petitioner is not entitled to prevail in this appeal. The SBR acted appropriately in denying the Petitioner's request for reconsideration based on the doctrine of issue preclusion. Further, the SBR was not required to reevaluate the merits of the Petitioner's request for reclassification for the same reason. The record of the local board is clear on its face. Thus, the cases cited by the Petitioner are inapposite. The request for reconsideration was properly denied. See Murkette, supra at p. 4.

The SBR has correctly argued the that the Murkette decision is applicable to this case.

Issue preclusion may be used defensively if (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication; and, (4), the issue decided in the prior adjudication was essential to the earlier judgment.

If the conditions for preclusion are otherwise met, '[a] final order of an administrative agency in an adjudicatory proceeding …precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction'. Id. at page 4 citing Green, supra at 123-124.

In this case, the Petitioner was the principal party in his first appeal. The issue in that case, his retirement classification, is identical to that which he has raised in his request for reconsideration. The issue that was decided in the prior litigation, that Group 2 is the correct job classification for his position, was essential and decisive in the earlier administrative adjudication.

The decision regarding the Petitioner's retirement classification was decided and became final with the rendering of DALA's determination in CR-02-027.

Relitigation of the same issue between these same two parties is precluded. The issue raised in the Petitioner's request for reconsideration is identical to that in the first appeal.

Evidence proffered on the merits at the October 24, 2007 DALA hearing was taken de bene, subject to a Motion to Strike. The SBR filed a Motion to Strike on November 16, 2007. The motion is ALLOWED, as said evidence is not relevant to the resolution of this case.

In conclusion, the decision of the SBR, denying the Petitioner's request for reconsideration of his retirement classification, is affirmed.

So ordered.

Division of Administrative Law Appeals.

Judithann Burke
Administrative Magistrate

DATED: January 25, 2008


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