THE COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

William Hunter, Sr.,


Petitioner

v. Docket No. CR-07-94

State Board of Retirement,


Respondent

Appearance for Petitioner:

William J. Lundregan, Esquire

Lundregan Law Offices, PC
71 Washington Street, 21st FL
Salem, MA 01970

Appearance for Respondent:

Erin C. Nally, Esquire

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

Administrative Magistrate:

Judithann Burke

DECISION

Pursuant to G.L. c 32 s. 16(4), the Petitioner, William Hunter, Sr., is appealing from the January 26, 2007 decision of the Respondent, State Board of Retirement (SBR), classifying him in Group 2 for retirement purposes. (Exhibit 9). The appeal was timely filed. (Exhibit 10). A hearing was held on February 20, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA.

At the hearing, sixteen exhibits were marked. The Petitioner testified in his own behalf. Both parties stated their arguments for the record. One (1) tape was made of the proceedings.

FINDINGS OF FACT

Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

1. The Petitioner, William Hunter, Sr., d.o.b. 07/27/1944, began employment as a Maintenance Officer in the Essex County Sheriff's Department on or about July 1, 1992. Prior to his first assignment, he was trained at the Middleton House of Correction in CPR, fire fighting, fire rescue, hand cuffing, defensive tactics, inmate Control, and cell searches. The Petitioner was fingerprinted, as were all those in Correction Officer positions. (Testimony and Exhibit 4).

2. The Petitioner's first assignment was to the position of "Tool Room Attendant" at the Middleton House of Correction. Included in the job description for this position is the provision "must be able to supervise and direct inmates". The first job responsibility listed is "directly supervise inmates on a shift, assuring that they complete their assignments and provide interrupted (sic) services for the facility". The job description also states that the Tool Room Attendant works under the Assistant Superintendent of Maintenance. (Testimony and Exhibits 2 and 8).

3. The Petitioner wore a uniform to work every day and he was given a number of keys with which to navigate his way about the facility and lead inmates to job assignments. He also took inmates outside of the facility to maintain the grounds. (Id.).

4. On the New Member Enrollment Form that he completed for membership in the Essex County Retirement System, the Petitioner reported that he worked in the Maintenance Department and that his title or position was "Janitor". He joined the Essex County Retirement System on or about February 3, 1996. (Exhibit 1).

5. On May 9, 1997, the Petitioner wrote to Cynthia Kendall of the Essex County Retirement Board and requested that he be classified in Group 4. He was initially classified in Group 2. He was surprised and believed this to be an error. He informed Ms. Kendall that he had constantly been working with and supervising inmates. (Exhibit 3).

6. The Essex County Sheriff's Department supported the Petitioner's request to be classified in Group 4. In a letter dated May 16, 1997, Willie J. Smith, Human Resources Director, stated that "since part of his duty is supervising inmates…we feel that he should be reclassified to Group 4". (Exhibit 4).

7. On May 27, 1997, the Essex County Retirement Board voted unanimously to reclassify the Petitioner in Group 4. (Exhibits 5 and 6).

8. In 1999, Essex County government was abolished and all departments and employees transitioned to state government. The Petitioner became a member of the State Retirement System. A February 22, 1999 memo to all Essex County Sheriff's Department employees from the transition team of Essex County informed the employees that "your job title and duties will remain the same and will not be affected by the transition to state government". (Exhibit 7).

9. On an August 14, 2003 Group Classification Questionnaire, the Petitioner listed his job title and employing agency as Tool Room Attendant/Janitor/Essex County Sheriff's Department. (Exhibit 13).

10. On September 30, 2003, the Petitioner retired under the Essex County Sheriff Department's 2003 Early Retirement Incentive Program. The SBR classified him in Group 2. (Testimony and Exhibits 8, 12 and 15).

11. The Petitioner did not appeal his Group 2 retirement classification in 2003. He had serious medical issues at that time. (Id.).

12. On December 26, 2006, the Petitioner wrote to the SBR and indicated that he should have been classified in Group 4. He reported that he had supervised inmates on a daily basis. (Exhibit 8).

13. On January 25, 2007, the SBR notified the Petitioner that it had classified his position, Tool Room Attendant, in Group 2. (Exhibit 9).

14. The Petitioner filed a timely appeal. (Exhibit 10).

CONCLUSION

The Petitioner is not entitled to prevail in this appeal. He has not met his burden of proving that he is entitled to be classified in Group 4 for retirement purposes.

The classification of public employees is governed by G.L. c. 32 s. 3(2)(g), which provides, with respect to Group 4:

Group 4 - Division of law enforcement of the department of fisheries, wildlife an recreational vehicles; conservation officer of the city of Haverhill having duties similar to a law enforcement officer of the department of fisheries, wildlife and recreational vehicles; …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, assistant to the supervisor of industries, senior correction officer, senior female correction officer, supervising correction officer, supervising female correction officer, prison camp officer, senior prison camp officer, supervising prison camp officer, assistant deputy superintendent; employees of the parole board…the sheriff, superintendent, assistant superintendent, assistant deputy superintendent and correction officers of county correctional facilities… (Emphasis added).

The position "Tool Room Attendant" does not appear in those job titles listed in Group 4.

Group 4 membership is determined by employees' job "positions or titles rather than by describing the type of work they perform". Gaw v. CRAB, 345 N.E. 2d 908, 911 (Mass. App. Ct. 1976). Following the reasoning set forth in Gaw, supra, if the legislature had intended to include the position "Tool Room Attendant" within Group 4, the language of the statute would include this job title.

The Petitioner has vehemently contended that, because two former employees of the Essex County Sheriff's Department who worked with him at the Middleton House of Correction have been classified in Group 4 for retirement purposes, it logically follows that he should be as well. This logic is flawed. Philip O'Keefe and Alexander Davie each held the position of Correction Officer/Maintenance in Essex County and were eventually afforded Group 4 classification by the Superior Court and DALA, respectively, because they performed the same duties as Correction Officers after the transition to state government even though their job titles were changed to "Maintenance/Janitor". O'Keefe v. State Board of Retirement, Essex County Superior Court Civil Action # 05-0287, Whitehead, J. (11/10/05) and Davie v. State Board of Retirement, CR-03-739 (DALA Dec. 01/26/2005, no CRAB Decision). Therefore, the actual jobs performed by Messrs. O'Keefe and Davie did not change, and their classifications in Group 4 were in compliance with G.L. c. 34B s.14(a), which provides:

[E]mployees of the sheriff of an abolished county, employed immediately before the transfer dates…shall be transferred to the commonwealth with no impairment of employment rights held immediately before the transfer date with no interruption of service, without impairment of …retirement or other rights… without reduction in compensation or salary grade…

In contrast, the Petitioner in the present case was classified as a Tool Room Attendant both immediately before and after the transition. This position has never been delineated in Group 4. The SBR's classification of the Petitioner in Group 2 is in compliance with G.L. c. 34B s. 14(a) in this case.

The Respondent is correct in its contention that a retirement board is entitled to review classification approvals that have been previously made in conjunction with a retirement application. Because Group 4 classification is determined by the employee's job title, Gaw, supra, the Essex County Retirement Board erred in classifying the Petitioner in Group 4 in May 1997. When an error is discovered, a retirement board is obligated to correct it, per G.L. c. 32 s. 20(5)(c)(2).

Thus, the SBR properly changed the Petitioner's retirement classification to Group 2. Per G.L. c. 32 s. 3(2)(g), Group 2 employees include those "whose regular and major duties require them to have the care, custody, instruction or other supervision of prisoners". The Petitioner's position falls directly into this category. Accordingly, the decision of the SBR classifying the Petitioner in Group 2 is affirmed.

So ordered.

BY:

Division of Administrative Law Appeals,

Judithann Burke, Administrative Magistrate
Administrative Magistrate

DATED: April 4, 2008


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