COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Kathleen Bailey,

Petitioner

v. CR-07-724

State Board of Retirement,

Respondent

Appearance for Petitioner:

Deborah Kohl, Esq.

191 Bedford Street
Fall River, MA 02720

Appearance for Respondent:

Emily Robbins, Esq.

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

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Kathleen Bailey, is appealing the August 31, 2007 decision of the Respondent, State Board of Retirement, denying her request to be classified in Group 4 for retirement purposes (Exhibit 1). The Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board (CRAB).

A hearing pursuant to G.L. c. 7 §4H was held on April 15, 2008 at the offices of the Division of Administrative Law Appeals, 98 N. Washington, 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 her own behalf as did Thomas McKenna, a former Lieutenant at the Worcester Sheriff's Office who retired in April of 2007. One cassette tape recording was made of the hearing. The record was left open until May 13, 2008 for the filing of written closing memoranda.

FINDINGS OF FACT

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

1. The Petitioner, Kathleen Bailey, d.o.b. 4/12/57, commenced employment with UMass Medical Center as a registered nurse in or about April of 1981 (testimony of the Petitioner).

2. Upon assuming her position with UMass Medical Center in 1981, she became a member of the State Retirement System (testimony of the Petitioner).

3. The Petitioner remained as a registered nurse with UMass Medical Center until December 15, 2005 (testimony of the Petitioner).

4. In or about December 20, 2005, the Petitioner accepted a position as Head Nurse/Director of Nursing at the Worcester County Sheriff's Office (testimony of the Petitioner).

5. The Petitioner's job duties involved overseeing the entire operation of the medical department at the Worcester County Sheriff's Office including supervising the nursing personnel and ensuring adequate staffing to care for the inmates' medical needs. The Petitioner was also responsible for performing daily rounds at the Worcester County House of Correction in order to assess the health of the inmates (testimony of the Petitioner).

6. In her capacity as Head Nurse/Director of Nursing, the Petitioner supervised a total of twenty-three nursing personnel, three Correction Officers, one Lieutenant Correction Officer and four civilians (testimony of the Petitioner).

7. The Petitioner had no formal training in the field of criminal justice (testimony of the Petitioner).

8. The Petitioner was always accompanied by a Correction Officer whenever she entered a prison cell (testimony of the Petitioner).

9. On June 20, 2007, the Petitioner submitted an application for superannuation retirement benefits with an effective retirement date of June 30, 2007. The Petitioner listed her address on this application as 110 Summit Street, Clinton, MA (Exhibit 5).

10. On the application under the category "retirement group, if known," the Petitioner marked the box for Group 4 (Exhibit 5).

11. On July 27, 2007, the State Board of Retirement received a Group Classification Questionnaire for the Petitioner. The Questionnaire was completed and signed by Ms. Bailey's employing agency. The agency attached a job description for the position of "Head Nurse." The Petitioner did not sign this Questionnaire and a note on the bottom of the form states that "member was not willing to sign Questionnaire" (Exhibit 7).

12. The job description for the position of Head Nurse, attached to the Classification Questionnaire submitted by the employing agency, lists as the General Statement of Duties and Responsibilities the following: "responsible for planning, assessing, implementing and evaluating basic patient (inmate) care…" (Exhibit 8).

13. On August 31, 2007, the State Board of Retirement voted to deny the Petitioner's request for Group 4 classification, instead classifying her in Group 1 for retirement purposes, and sent the Petitioner written notification to that effect. This decision letter was sent to Ms. Bailey at the following address: 110 Summit Street, Clinton, MA 01510 (Exhibit 1, stipulation of the parties).

14. On September 27, 2007, the Petitioner filed an appeal of this decision with the Contributory Retirement Appeal Board. The appeal was stamped as received on September 28, 2007 (Exhibit 2).

15. During the summer of 2007, the Petitioner's proper and legal address was 110 Summit Street, Clinton, MA. She sometimes stayed at a home in Westport, MA that she had purchased in 2003 (testimony of the Petitioner).

16. The Petitioner traveled back and forth between the two residences until October of 2007, when she moved to Westport, MA permanently (testimony of the Petitioner).

CONCLUSION

At the outset of the hearing, the State Board of Retirement filed a Motion to Dismiss the Petitioner's appeal for Lack of Jurisdiction. Specifically, the State Board of Retirement claimed that the Petitioner's failed to file a timely appeal in accordance with G.L. c. 32 §16(4).

G.L. c. 32 §16(4) provides in pertinent part that a member who is aggrieved by the Board's decision "may appeal to the contributory retirement appeal board by filing therewith a claim in writing within fifteen days of notification of such action or decision" (emphasis supplied).

In this case, by letter dated August 31, 2007, the State Board of Retirement notified the Petitioner of its denial of her request to be classified in Group 4 for retirement purposes and of her right to file an appeal of this denial with the Contributory Retirement Appeal Board. This notification was sent to the Petitioner at her address in Clinton, MA, the same address listed on her application for superannuation retirement benefits filed with the State Board of Retirement on June 20, 2007, approximately two months prior.

The Petitioner's letter of appeal to the Contributory Retirement Appeal Board was dated September 27, 2007, and stamped as received by CRAB, the following day, September 28, 2007. Thus, the notice of appeal was sent twenty-seven days after the State Board of Retirement sent its letter of denial to Ms. Bailey. At the hearing, the Petitioner was unable to recall the exact date that she received the denial letter from the State Board of Retirement. Even assuming that it took seven days for the letter to arrive from Boston, MA to Clinton, MA, the Petitioner's appeal would still have been filed on the twentieth day, or five days after the statutory deadline for filing an appeal.

Arguing in her own behalf, the Petitioner stated that she traveled from her Westport, MA home to her Clinton, MA home during the summer of 2007 and that she did not remember if she was in Clinton, MA at the time that the denial letter from the State Board of Retirement was sent to her.

Despite the Petitioner's argument, no evidence was introduced to demonstrate that at the time she filed her application for superannuation retirement benefits in June of 2007, Ms. Bailey had provided the State Board of Retirement with any address other than the Clinton, MA address. The State Board of Retirement sent the notification to the Petitioner at the Clinton, MA address that she had given on her application for benefits. The State Board of Retirement was not obligated to seek out or to send notification to Ms. Bailey at any address other than her permanent, legal address that she had supplied. See Lourdes Morales v. State Board of Retirement, CR-04-529 (DALA dec. 7/12/07; CRAB dec. pending).

In the case of Maureen O'Sullivan v. Teachers' Retirement System, CR-07-30 (DALA dec. 11/14/07; CRAB dec. pending), the Petitioner's appeal was dismissed for not having been timely filed in accordance with the provisions of G.L. c. 32 §16 (4). Ms. Sullivan claimed that although the denial letter from the Teachers' Retirement System (TRS) was sent to her home, she did not open it immediately. As such, she argued that the statutory time limitation should only be effective commencing when she actually received notification, i.e., the date that she opened the letter. In Sullivan, DALA held that the Petitioner received notification from the TRS when the letter arrived at her home, regardless of the fact that she did not open the letter until a later date.
Since the Petitioner's September 27, 2007 letter of appeal was mailed twenty-seven days after the date of the State Board of Retirement's letter of denial, her appeal must be dismissed for failure to comply with the provisions of G.L. c. 32 §16(4).

Even assuming, for argument's sake, her appeal was timely filed, Ms. Bailey is not entitled to be classified in Group 4 for retirement purposes.

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…"

Group 4 includes:

members of police and fire departments not classified in Group 1" as well as other law enforcement and fire fighting personnel …employees of the department of correction who are employed at any correctional institution or prison camp under the control of said department and who hold the position of correction officer, female correction officer, industrial instructor, recreation officer, assistant industrial shop manager, industrial shop manager, assistant to the supervisor of industries, supervisor of industries, senior correction officer, senior female correction officer, prison camp officer, senior prison officer, supervising prison camp officer, assistant deputy superintendent…

In this case, the Petitioner held the position of Head Nurse/Director of Nursing from December of 2005 until her retirement on June 30, 2007. Her primary duties involved planning, implementing, and providing medical care to inmates under the guidance of a physician as well as supervising all nursing staff and correctional staff assigned to the medical unit.

In listing the categories of employees to be classified in Group 4, G.L. c. 32 §3(2)(g) makes no reference to the position of Head Nurse/Director of Nursing. The Legislature has consistently described employees categorized within Group 4 by naming their positions or titles rather than by describing the types of work they perform. See Gaw v. Contributory Retirement Appeal Board, 345 N.E. 2d 908, 911 (1976). If the intent of the Legislature was to grant Group 4 status to those who served as Head Nurse/Director of Nursing in a correctional facility operated by the Department of Correction, such position would have been referenced in the statute.

The Petitioner contends that at the time she was hired, she was led to believe that her position was that of an Assistant Deputy Superintendent and since that job title is specifically mentioned in the statute in Group 4, she is entitled to be classified in that category for retirement purposes.

Notwithstanding the above, the Petitioner acknowledged that she never received a written job description. Furthermore, she provided no evidence that she was given the formal title of Assistant Deputy Superintendent and that she performed the functions and duties of that position. Rather, the evidence presented at the hearing demonstrates that her duties and responsibilities were consistent with that of a Head Nurse/Director of Nursing. Consistent with prior decisions, the Petitioner cannot be classified in Group 4 because her position was not listed in the statute and further she did not perform the function of a job title that was listed in the statute. See Carlene LaChance v. State Board of Retirement, CR-04-644 (DALA dec. 9/2/05; CRAB dec. 3/6/06) where the Petitioner, a Correctional Program Officer with the Department of Correction was held not to be entitled to Group 4 status as the position of Correctional Program Officer is not listed in the statute. See also Dimauro v. Hampden County Retirement Board, CR-91-813 (DALA dec. 4/29/92, CRAB dec. 9/11/92) where it was held that the Petitioner was not entitled to a Group 4 classification. Although the Petitioner in Dimauro had the title of Correction Officer, his work was determined to be that of a counselor with his work as a Correction Officer being secondary adjunct to his counseling responsibilities to the inmates.

At the hearing, the Petitioner argued, in the alternative, that she should be classified in Group 2 for retirement purposes. G.L. c. 32 §3(2)(g) provides for Group 2 classification for those members "whose regular and major duties require them to have the care, custody, instruction or other supervision of prisoners."

At the hearing, the Petitioner testified that her job duties involved complete accountability for the operation of the medical department including the supervision of all the nursing personnel. In addition, she was responsible for ensuring that there was adequate medical staffing at the facility. Although some of her duties involved actual medical care of prisoners, these duties were ancillary to her primary functions, which were largely administrative in nature. Accordingly, the Petitioner did not meet the statutory requirement for classification in Group 2 as her regular and major duties were to supervise and administer the operation of the medical department of the Worcester County Sheriff's Office.

In light of the foregoing, I order that the State Board of Retirement's Motion to Dismiss for Lack of Jurisdiction be allowed and that the Petitioner's appeal be dismissed on the grounds that it was not timely filed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated: June 27, 2008


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