COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Appeal of:

Peter Millerick,

Petitioner

v. CR-07-370

Boston Retirement Board,

Respondent

Appearance for Petitioner:

Matthew Solomon, Esq.

Angoff, Goldman, Manning,
Wanger & Hynes, P.C.
45 Bromfield Street - 8th Fl.
Boston, MA 02108

Appearance for Respondent:

Edward McKenna, Esq.

66 N Street
South Boston, MA 02127

Administrative Magistrate:

Joan Freiman Fink, Esq.

DECISION

Pursuant to G.L. c. 32 §16(4), the Petitioner, Peter Millerick, is appealing the April 30, 2007 decision of the Respondent, Boston Retirement Board, denying his request to be classified in Group 4 for retirement purposes (Exhibit 6). 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 30, 2008 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 -7). 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 was left open for the submission from the Boston Retirement Board of documentation concerning the Petitioner's request to be classified in Group 4. On June 13, 2008, the Respondent submitted the following documents which were entered into evidence in this appeal:

Exhibit 8 - 4/2/07 Memo to File from Ed O'Brien, Manager of Client Services
Exhibit 9 - 4/3/07 Letter from Ed O'Brien to the Petitioner
Exhibit 10 - 5/17/07 Petitioner's application for superannuation retirement

On July 15, 2008, the Petitioner submitted a written closing argument at which time the record in this matter was declared to be closed.

FINDINGS OF FACT

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

1. The Petitioner, Peter Millerick, d.o.b. 9/20/47, commenced employment with the City of Boston Property Management Department as a Third Class Stationary Engineer on February 3, 1999 (testimony of the Petitioner).

2. Mr. Millerick has a Third Class Steam Engineers license (testimony of the Petitioner).

3. Upon commencing his employment with the City of Boston, Mr. Millerick became a member of the Boston Retirement System (testimony of the Petitioner).

4. The official job description for the position of Third Class Stationary Engineer lists the following essential functions of the job: "Supervises and participates in the operating of heating, ventilation, air-conditioning…cleans, maintains, repairs, and operates steam turbines … starts and stops emergency generator when necessary…" (Exhibit 2).

5. Occasionally, the Petitioner had the responsibility for generating electricity inside City Hall and outside on the Plaza when special events were scheduled (testimony of the Petitioner).

6. John Gleason, Chief Power Plant Engineer of the Boston Property Management Department, served as the Petitioner's direct supervisor. Under Mr. Gleason's direction, the Petitioner was responsible for maintaining all departmental equipment. For his entire tenure with the Boston Property Management Department from 1999 until his retirement in 2007, the Petitioner was assigned to work at Boston City Hall (testimony of John Gleason).

7. On May 17, 2007, the Petitioner filed an application for superannuation retirement benefits. In this application, he requested that his position be classified in Group 4 for retirement purposes (Exhibit 10).

8. On April 30, 2007, the Boston Retirement Board subsequently notified the Petitioner that his position was classified in Group 1 for retirement purposes (Exhibit 6).

9. On May 14, 2007, the Petitioner filed a timely request for an appeal of that decision with the Contributory Retirement Appeal Board (Exhibit 5).

10. On June 28, 2007, Michael Byrnes, the Business Agent for the Petitioner's Union, sent a letter to the Boston Retirement Board requesting that it reconsider its prior determination and classify the Petitioner as well as other employees who are employed as Steam Firemen, Stationary Engineers, and Chief Power Plant Engineers in Group 4 rather than Group 1 for retirement purposes (Exhibit 3).

11. On July 17, 2007, the Boston Retirement Board sent the Petitioner notification that it had re-affirmed its original determination to the effect that his position Third Class Stationary Engineer as was classified in Group 4 for retirement purposes (Exhibit 4).

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…"

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 a municipal gas or electric generating or distribution plant who are employed as linemen, electric switchboard operators, firemen, oilers, mechanical maintenance men… (emphasis supplied).

After reviewing the testimony and evidence provided in this case, I conclude that the Petitioner is not employed in a municipal gas, electric generating or distribution plant as required by the statute for classification as a Group 4 employee.

Mr. Millerick held the position of Third Class Stationary Engineer. His primary responsibilities involved the operation and maintenance of the HVAC system as well as other related equipment at Boston City Hall.

The Petitioner contends that he meet the statutory requirement for inclusion as a Group 4 employee in that as part of his responsibilities, he was involved in generating electricity both inside the City Hall building and outside on City Hall Plaza when special events were planned.

However, in listing the categories of employees to be classified in Group 4, G.L. c. 32 §3(2)(g) makes no reference to employees who hold the positions of mechanical maintenance men or steam engineers at locations other than electric generating or distribution plants. 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

In Donnelly v. Boston Retirement Board, CR02-164 (DALA dec. 3/31/03; no CRAB dec.), the Petitioner, a licensed electrician whose position involved maintaining equipment needed for emergency electricity needs of the Boston Police Headquarters as well as the District Police Stations, was determined not to be entitled to classification in Group 4 for retirement purposes. As NSTAR Electric was the primary supplier of electricity to the Headquarters and Districts Stations, the Boston Police Department was not found to be a municipal lighting department.

In this case, the Petitioner's primary duties concerned the operation and maintenance of the HVAC and other related equipment at Boston City Hall. Occasionally, he had the responsibility for generating electricity both inside and outside City Hall. No evidence was presented at the hearing to demonstrate that the electricity from City Hall's mechanical room spread outside the immediate vicinity. As such, I conclude that the operation of the electrical equipment for City Hall does not qualify as the type of operation contemplated by the explicit language of Section 3(2)(g) that provides for Group 4 classification for an employee of an "electrical generating and distribution plant."

Additionally, Section 3(2)(g) provides that only employees of Massport's electrical operations are eligible for Group 4 classification. If the intent of the Legislature was to grant Group 4 status to those who served as employees of Boston City Hall's electrical operation, that information would have been specifically referenced in the statute.

In light of the foregoing, I order that the decision of the Boston Retirement Board denying the Petitioner's request to be classified in Group 4 for retirement purposes be affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Joan Freiman Fink, Esq.
Administrative Magistrate

Dated:


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