THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Division of Administrative Law Appeals
Doreen Fay, Ed.D.
v. Docket No. CR-06-677
State Board of Retirement,
Appearance for Petitioner:
278 Center Street
Groveland, MA 01834
Appearance for Respondent:
Erin C. Nally, Esquire
State Board of Retirement
One Ashburton Place, RM 1219
Boston, MA 02108
The Petitioner, Doreen Fay, Ed.D., is appealing from the September 29, 2006
decision of the Respondent, State Board of Retirement (SBR), denying her request to be
classified in Group 2 for retirement purposes. (Exhibit 5). The appeal was timely filed.
(Exhibit 12). A hearing was held on October 30, 2007 at the offices of the Division of
Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.
At the hearing, eleven (11) exhibits were marked. The Petitioner testified
in her own behalf. Both parties stated their arguments for the record. One (1) tape was
made of the proceedings. Exhibit 12 was marked when the Respondent's pre-hearing
memorandum was received on November 15, 2007.
FINDINGS OF FACT
Based upon the testimony and documents submitted at the hearing in the above-
entitled matter, I hereby render the following findings of fact:
1. The Petitioner, Doreen Fay, Ed.D., d.o.b. 11-21-45, was appointed to the
Sex Offender Registry Board as the juvenile psychologist designee on March 15, 2001
and was re-appointed to a six-year term that will end on March 25, 2010. (Exhibits 1 and
2. As a juvenile psychologist, the Petitioner's duties include: presiding over
administrative, evidentiary hearings, drafting detailed findings of fact to support
determinations made, reviewing and approving or disapproving recommended sex
offender classifications and making recommendations regarding these offenders to the
court. These duties necessarily involve repeated contact with convicted male sex
offenders who are almost exclusively felons, and who for the most part are incarcerated,
under parole or probation supervision, mentally ill or mentally defective. In her contact
with these offenders, the Petitioner must be in control of the hearings. She must diffuse
any overly adversarial or volatile situations. (Testimony and Exhibits 4 and 6-8).
3. During the hearings conducted by the Petitioner, there is no court officer or
any other security personnel, except in the case of incarcerated offenders. The Petitioner
is responsible for the safety of everyone in the hearing room. All of the hearings are
4. The length of the hearings varies form one (1) hour to three (3) days. The
average hearing lasts two (2) to three (3) hours. The Petitioner writes up a decision in
approximately ten (10) hours. Approximately seventy (70) per cent of the Petitioner's
work time involves writing decisions, paper reviews of cases and other administrative
work. The Petitioner conducts an average of three (3) hearings per week. (Testimony).
5. Approximately eighty (80) per cent of the offenders who attend the
Petitioner's hearings are represented by an attorney. There is an attorney for the Sex
Offender Registry Board present at all of the hearings. (Id.).
6. On August 8, 2006, the Petitioner requested that the SBR classify her in
Group 2 for retirement purposes and she submitted a Group Classification Questionnaire
with her request. (Exhibit 5).
7. On September 28, 2006, the SBR classified the Petitioner in Group 1. (Id.).
8. The Petitioner filed a timely appeal. (Exhibit 12).
The Petitioner is not entitled to prevail in this appeal. G. L.c. 32 s. 3(2)(g)
provides for the system of classification of employees for retirement purposes. Group 1
includes "officials and general employees including clerical, administrative, and technical
workers, laborers, mechanics and all others not otherwise classified". (Emphasis
Group 2 includes "employees of the commonwealth or of any county, regardless
of any official classification…whose regular and major duties require them to have
the care, custody, instruction or other supervision of…prisoners, ...parolees...
persons who are mentally ill, mentally defective, or defective delinquents or
wayward children…". (Emphasis added).
The Respondent has correctly argued that, as a hearing officer, a third party neutral, the Petitioner has no role in the care, custody or supervision over any of the sex offenders who are parties in her hearings. Further, her actual hearing time accounts for
approximately nine (9) hours per week on average. This amount of time is less than
25% of her total work week. This amount of time does not amount to her face to face
work with the sex offenders being her "regular and major duties" notwithstanding the seriousness of the offenses and the questionable character or threatening nature of many of those men.
Classification is "properly based on the sole consideration of [one's] job duties at the time of retirement." Maddocks v. CRAB, 340 N.E. 2d 503, 507 (1976). The Petitioner's regular and major job duties as a hearing officer do not require her to have the "care, custody, instruction or other supervision of those who were prisoners, parolees, mentally ill or mentally defective or defective delinquents". G.L. c. 32, §(3)(g). Although she conducts face to face meetings and hearings, intervenes in some potential crisis situations, and is responsible for the safety of all parties in the hearing rooms, her regular and major job duties are adjudicatory and administrative in nature; she spends the bulk of her time conducting paper reviews and writing decisions.
The Petitioner also argues that she is entitled to Group 2 classification because her work as a hearing officer subjects her to risk of physical harm. She provided the example of a sex offender who wrote a threatening letter to her after one of the hearings. The Petitioner's argument is without merit, as the unambiguous plain language G.L. c.32, §3(2)(g) pertaining to classification in Group 2, does not refer to one's risk of physical harm as a possible criterion for inclusion. Thus, while the Petitioner certainly has encountered angry, upset, violent, unstable, aggressive, and arguably mentally ill people during her work, her mere interaction with these people does not constitute "care, custody, instruction or other supervision" over them. Since the Petitioner does not have the care, custody, instruction or other supervision of prisoners, parolees, persons who are mentally ill or mentally defective or defective delinquents and she does not interact with them for an amount of time greater than half of her regular and major duties, she is not entitled to Group 2 classification. Her job was properly classified in Group 1 for retirement purposes.
The decision of the SBR classifying the Petitioner as Group 1 is affirmed.
DIVISION OF ADMINSTRATIVE LAW APPEALS
DATED: December 31, 2007
This information is provided by the Division of Administrative Law Appeals.