THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Russell Hayes,

Petitioner

v. Docket No. CR-07-581

State Board of Retirement,

Respondent

Appearance for Petitioner:

Pro Se
P.O. Box 574
Gardner, MA 01440

Appearance for Respondent:

Melinda E. Troy, Esquire

State Board of Retirement
One Ashburton Place, RM 1219
Boston, MA 02108

Administrative Magistrate:

Judithann Burke

CASE SUMMARY

The Petitioner, former Assistant Director of Education in the Worcester County Sheriff's Department, has met his burden of proving that he is entitled to be classified in Group 2 for retirement purposes. He successfully demonstrated that his regular and major duties required him to have responsibility for the "care, custody, instruction or other supervision of…" the prisoners whom he selected and worked with in the educational program.

DECISION

Pursuant to G.L. c. 32 s. 16(4), the Petitioner, Russell Hayes, is appealing from the July 27, 2007 decision of the Respondent, State Board of Retirement (SBR), denying his request to be classified in Group 2 for retirement purposes. (Exhibit 1). The appeal was timely filed. (Exhibit 2). A hearing was held on December 4, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, six (6) exhibits were marked. The Petitioner testified and argued in his own behalf. The SBR stated its argument for the record. One (1) tape was made of the proceedings.

FINDINGS OF FACT

Based upon the testimony and documents proffered into the record in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, Russell Hayes, d.o.b. 10-14-1952, was formerly employed as the Assistant Director of Education at the Worcester County Sheriff's Office (WCSO). He retired on October 14, 2007. (Exhibits 3-5).

2. His duties included the responsibility for assisting the Director of Education in coordination of the day to day operations of the educational and vocational programs. To this end, the Petitioner oversaw the operation of the Atlantic Union College Program. He monitored daily student movement, assisted in resolving student complaints and conflicts, hired inmate lab assistants, monitored referrals to all academic and vocational programs and reviewed student work folders for recording of completed coursework. (Exhibit 4).

3. Other duties performed by the Petitioner in his role as Assistant Director of Education were: instructing students and lab assistants in the use of software, supervising the overall operation of the computer labs, and making numerous trips back and forth to the jail. When he was in the classrooms, he was most often alone with the inmates. The inmates answered directly to him. He paid the inmates in cigarettes and, then later, in cash. He was very rarely accompanied by a Correction Officer when he worked in the computer labs/classrooms.

The Petitioner handled the upward movement of inmates/students as they progressed from class to class, and he served as a mentor for many of those who needed support in order to continue their studies. The Petitioner worked with and oversaw the progress of between eighty and one hundred students per semester. (Id. and Exhibit 5).

4. The educational program ran for thirteen years, twelve months a year. (Testimony).

5. Eighty to ninety percent of the Petitioner's time at work involved direct contact with the students/inmates. (Testimony).

6. On June 30, 2007, the Petitioner completed a Group Classification Questionnaire and attached the job description that is part of the record. (Exhibits 3 and 4).

7. On July 27, 2007, the SBR notified the Petitioner that he had been classified in Group 1. (Exhibit 1).

8. The Petitioner filed a timely appeal. (Exhibit 2).

CONCLUSION

The Petitioner is entitled to prevail in this appeal. He has met his burden of proving that he is entitled to Group 2 classification.

While the written job description to which the board referred in rendering its decision contains myriad references to the grant writing, administrative and other supervisory duties of the Assistant Director of Education position, the credible evidence reflects that these duties were minimal in the Petitioner's case. The Petitioner's uncontroverted testimony and the letter of his long-time supervisor, Thomas Holden, both reflect that during all of the years of his employment in that job title, the Petitioner spent approximately eighty to ninety per cent (80-90%) of his working hours in direct contact with the student inmates. Accordingly, his regular and major duties required him to have responsibility for the "care, custody, instruction, or other supervision of…" the prisoners whom he had selected and worked with in the educational program. (Emphasis added). See M.G.L. c. 32 s. 3(2)(g).

Inasmuch as group classification depends not only upon the job description, but also upon those duties actually performed by the employee in the period prior to retirement pursuant to Maddocks v. Contributory Retirement Appeal Board, 369 Mass. 488 (1976), the decision of the State Board of Retirement is hereby reversed. This matter is remanded to said board for the purpose of changing Russell Hayes's retirement classification from Group 1 to Group 2. See Shirley Giroux v. State Board of Retirement, CR-00-1241 (DALA Decision 11/09/2001; no CRAB Decision) and Justin Newmark, Ph.D. v. State Board of Retirement, CR-00-1265 (DALA Decision 09/16/2002; no CRAB Decision).

So Ordered.

Division of Administrative Law Appeals,

/s/ Judithann Burke
Administrative Magistrate

DATED: March 12, 2009