COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Enzo Simmarano,

CR-07-352
Petitioner

v.

State Board of Retirement,

Respondent

Appearance for Petitioner:

Christine Narcisse, Esq.

McGuire & McGuire, P.C.
14 Harvard Street
Worcester, MA 01609

Appearance for Respondent:

Erin Nally, Esq.

State Board of Retirement
One Ashburton Pl. - 12th Fl.
Boston, MA 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Enzo Simmarano, is appealing the April 27, 2007 decision of the Respondent, State Board of Retirement, classifying his position in Group 1 for retirement purposes (Exhibit 2). 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 May 27, 2004 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 - 8). The Petitioner's Pre-Hearing Memorandum was marked as "A" for identification and the Respondent's Pre-hearing Memorandum was marked as "B" 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 June 4, 2008 for the filing of supplemental information.

FINDINGS OF FACT

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

1. The Petitioner, Enzo Simmarano, d.o.b. 6/24/54, commenced employment as a Group Worker I with the Department of Youth Services (DYS) on October 1, 1989. His duties as a Group Worker I included caring for juvenile offenders (testimony of the Petitioner).

2. He became a member of the State Retirement System at that time (testimony of the Petitioner).

3. In 1994, he was promoted to the position of Building Maintenance Supervisor/Campus Police with the DYS. In this capacity, his duties included general building maintenance. In 1999, his job title changed to Maintenance Working Foreman (testimony of the Petitioner).

4. In April of 2004, he was promoted to the position of Building Maintenance Supervisor II at the Grafton DYS facility, a position that he held until his retirement on April 28, 2007 (testimony of the Petitioner).

5. The official Position Description issued in 2007 for the position of Building Maintenance Supervisor II describes as the General Statement of Duties and Responsibilities: "supervise the maintenance, security and repair of the Grafton Secure Building which houses 3 secure (locked programs for incarcerated youths. Provide and supervise a vocational program for the youths committed to DYS" (Exhibit 6).

6. Among the detailed statement of duties and responsibilities included in the official Position Description are the following: "supervise and assist in the performance of building security…grounds maintenance…supervise and train committed residents who are participating in the vocational program" (Exhibit 6).

7. During the period of 2004 through 2007, the Petitioner was the only employee in the maintenance department at the Grafton DYS facility. The vast majority of the maintenance work including repairs of broken pipes, moving furniture, vacuuming, snow removal, lawn mowing, carpet repairs, and miscellaneous chores was performed by the youths committed to the DYS Grafton facility (testimony of the Petitioner).

8. The Petitioner was the sole supervisor of the DYS youths assigned to the maintenance department and he alone was responsible to ensure that the DYS youth offenders performed the maintenance work correctly (testimony of the Petitioner).

9. On a daily basis, the Petitioner worked with the DYS youths, demonstrating to them the proper methods for performing maintenance repairs. Each morning the DYS shift supervisor would select the approximately three (3) individual DYS youths to spend the day with the Petitioner performing the scheduled maintenance tasks for that day (testimony of the Petitioner).

10. The Petitioner spent at least a portion of each day training the DYS youths in woodworking and carpentry as virtually none of the youths had any prior experience working in that field (testimony of the Petitioner).

11. The Petitioner spent approximately 6 ½ hours each day out of his 8 hour work day working with the DYS youths. The remaining 1 ½ hours per day were spent ordering supplies and performing paperwork (testimony of the Petitioner).

12. The Petitioner was certified in Cardio-Pulmonary Resuscitation as well as Crisis Intervention and attended workshops offered by the DYS designed to train workers in various methods of de-escalating potentially dangerous situations at the facility (testimony of the Petitioner).

13. On February 23, 2007, the Petitioner sent the State Board of Retirement a formal request that his position as Building Maintenance Supervisor II be reclassified from Group 1 to Group 2 for retirement purposes (Exhibit 1).

14. On February 28, 2007, the Petitioner completed a Group Classification Questionnaire for the State Board of Retirement. In this questionnaire, the Petitioner described the exact nature of his responsibilities as: "safety of security of 3 secured DYS Programs (Detained Youths). Required to be annually certified for restraint, CPR, first aid, and defibrillator use" (Exhibit 7).

15. On April 27, 2007, the State Board of Retirement formally notified the Petitioner that he was classified for retirement purposes in Group 1(Exhibit 2).

16. The Petitioner filed a timely appeal of this decision with the Contributory Retirement Appeal Board (Exhibit 3).

17. The Petitioner retired with superannuation retirement benefits effective April 28, 2007 (testimony of the Petitioner).

CONCLUSION

G.L. c. 32 §3 (2)(g) provides for a 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."

Group 2 includes in pertinent part: "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; and employees of the commonwealth…whose major duties require them to have the care, custody, instruction or other supervision of parolees or persons who are mentally ill, mentally defective, or defective delinquents or wayward children …" (emphasis supplied).

The Petitioner contends that since his job requires him to spend the majority of his time supervising youths committed to the DYS youth facility in Grafton, MA, he meets the statutory requirements outlined in G.L. c. 32 §3 (2)(g) for classification in Group 2.

After careful consideration of the testimony and evidence presented in this hearing, I conclude that the Petitioner is entitled to be classified as a Group 2 employee for retirement purposes.

In determining the proper classification for a member, it is important to consider the job description and the actual duties performed by that employee. See Gaw v. Contributory Retirement Appeal Board, 345 N.E. 2d 908 (1976) where the Court considered the primary test for Group eligibility in accordance with G.L. c. 32 §3(2)(g) to be largely the employee's title or job description. The court in Gaw, supra, stressed the significance of the job description in determining whether one's position falls within a specific group. In Maddocks v. Contributory Retirement Appeal Board, 340 N.E. 2d 403 (1976), the Court held that it is the applicant's duties and responsibilities in the period prior to the termination of his or her employment that is controlling for purposes of classification under G.L. c. 32 §3(2)(g).

In the current case, the Petitioner's job description in his position as Building Maintenance Supervisor II states that he is required to "provide and supervise a vocational program for the youths committed to DYS." At the hearing, the Petitioner gave credible testimony to the effect that he spent approximately six and one-half hours each day out of his normal eight hour day working with, supervising, directing, and training youth offenders in maintenance tasks. The Petitioner further testified that he was solely responsible for working with and supervising these DYS youths as there was no other maintenance personnel assigned to the Grafton, MA DYS facility during the three year period that he served as Building Maintenance Supervisor II. The Petitioner gave convincing testimony to the effect that he was required to be certified not only in CPR but also in crisis intervention and further that he received specialized training in how to cope with difficult and problematic youths.

I found the Petitioner to be a sincere and convincing witness and credited his testimony to the effect that the vast majority of his workday is spent working with and supervising youths who are committed to the DYS facility in Grafton, MA.
In the case of Jason Harris v Contributory Retirement Appeal Board, C.A. No. 01-3036-G (2002), the Suffolk Superior Court awarded Group 2 classification to a registered pharmacist at the Brockton Multi-Service Center who met with patients on a daily basis to discuss their medications, including explaining potential side effects. The court held that since Mr. Harris's duties involved both the instruction and care of mentally ill persons in the plain and ordinary sense of those words, he is entitled to Group 2 classification for retirement purposes. Similarly, in Linda Chigas v. State Board of Retirement, CR-03-12 (DALA dec. 2/13/04; no CRAB dec.), a Residential Supervisor II was determined to be a Group 2 employee for retirement purposes where the majority of her duties involved the personal care of the mentally defective adults residing in the group home that she supervised.

G.L. c. 32 s. 3(2)(g) classifies as Group 2 employees those whose major duties require them to have the care, custody, instruction or other supervision of prisoners or persons who are defective delinquents or wayward children. In this case, the Petitioner was directly involved in supervising and training youthful offenders who had been committed to a DYS facility.

I conclude that currently, the Petitioner's major duties require him to be involved in the care and instruction of youths who fall within the categories outlined in G.L. c. 32 §3(2)(g).

In light of the foregoing, I order that the decision of the State Board of Retirement be reversed and that Mr. Simmarano's current group classification be changed from Group 1 to Group 2.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: 8/7/08


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