COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Appeal of:

Linda Antonucci,

Petitioner

v. CR-07-1055

State Board of Retirement,

Respondent

Appearance for Petitioner:

Linda D. Antonucci

41 Woodside Avenue
Leominster, MA 02720

Appearance for Respondent:

Erin Nally, Esq.,

State Board of Retirement
One Ashburton Place - Rm. 1219
Boston, MA 02108

Administrative Magistrate:

Joan Freiman Fink, Esq.

SUMMARY OF DECISION


The State Board of Retirement properly denied the Petitioner's request for Group 4 classification. Her job title of Correction Program Officer is not specifically delineated in the statute, G.L. c. 32, § 3(2)(g), as a job title included in Group 4.

DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Linda Antonucci, is appealing the October 26, 2007 decision of the Respondent, State Board of Retirement, classifying her position as Group 2 and denying her request to be classified in Group 4 for retirement purposes. (Exhibit 1.) 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 February 19, 2009 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. Various documents were entered into evidence at the hearing. (Exhibits 1 - 10.) 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. One cassette tape recording was made of the hearing.

FINDINGS OF FACT

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

1. The Petitioner, Linda Antonucci, d.o.b. 7/26/58, commenced employment on May 5, 1979 as a Correction Officer with the Department of Correction. She was assigned to MCI Framingham. (Testimony of the Petitioner.)

2. Prior to being appointed to the position at MCI Framingham, the Petitioner successfully completed a six week in-service training program at MCI Shirley designed for Correction Officers. (Testimony of the Petitioner.)

3. In or about May of 1980, she was assigned to the position of Correction Counselor at MCI Lancaster, a minimal security pre-release center for male and female inmates. (Testimony of the Petitioner.)

4. At some point prior to 1997, her title was changed to Correction Program Officer. (Testimony of the Petitioner,)

5. On or about May of 1997, the Petitioner was transferred to MCI Gardner, a pre-release program for males, as a Correction Program Officer. She has remained in that position up to and including the present day. (Testimony of the Petitioner.)

6. Her duties as a Correction Program Officer entail performing all aspects of institutional security including providing head counts, room searches, strip and pat down searches, obtaining urine samples, supervising inmate work crews, and providing inmates with information concerning various programs such as Alcoholic Anonymous. (Exhibit 4, Testimony of the Petitioner.)

7. The Petitioner holds a State Police Commission that certifies that she can transport inmates anywhere in the Commonwealth of Massachusetts. (Exhibit 4.)

8. By an undated letter, the Petitioner requested that her position be classified in Group 4. She attached a completed Group Classification Questionnaire. (Exhibit 4.)

9. By letter dated October 26, 2007, the State Board of Retirement notified Ms. Antonucci that her request for Group 4 classification had been denied. (Exhibit 1.)

10. By letter dated November 5, 2007, the Petitioner filed an appeal of this denial with the Contributory Retirement Appeal Board. (Exhibit 2.)

CONCLUSION

The Petitioner is not entitled to prevail as G.L. c. 32, §3 (2)(g) does not mention the position of Correction Program Officer as a Group 4 position. 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 has held the position of Correction Program Officer from 1997 up to and including the present date. Her duties involve all aspects of institutional security at MCI Gardener including, but not limited to, performing head counts, room searches, and strip searches.

In listing the categories of employees classified in Group 4, G.L. c. 32, § 3(2)(g) makes no reference to the position of Correction Program Officer. The Legislature has consistently described employees categorized as Group 4 by naming their positions or titles rather than by describing the types of work they perform. Gaw v. Contributory Retirement Appeal Board, 4 Mass. App. Ct. 250 (1976). In Gaw, the Appeals Court concluded that the test of whether an employee is qualified for Group 4 is not whether the employee performed the duties of one whose job title is listed in Group 4, but rather, "the test for eligibility is largely the employee's title or job description." Gaw, supra, at p. 256.

The Petitioner argues that since her job entails supervising inmates, she serves in the same capacity as a Correction Officer and as such, she is entitled to Group 4 classification. She further notes that her title of Correction Program Officer merely defines the additional duties she is called upon to perform over and above the duties of a Correction Officer.

Notwithstanding the Petitioner's argument, the fact that she performs similar duties to a Correction Officer does not bestow Group 4 status on her. In the case of Thomas Fallon v. State Board of Retirement, CR-05-442 (DALA 2006), the Petitioner, also a Correction Program Officer, was denied Group 4 status as that position was not specifically set forth in G.L. c. 32, § 3 (2)(g) as falling within that category. As indicated by the Magistrate in Fallon, the "reason for the omission is irrelevant …."

For the foregoing reasons, the decision of the State Board of Retirement denying the Petitioner's request for Group 4 status and classifying her instead in Group 2 is hereby affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Joan Freiman Fink
Administrative Magistrate

Dated: March 19, 2009