COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Angelo Scacchi,

Petitioner

v. Docket No. CR-06-598

Malden Retirement Board,

Respondent


Appearance for Petitioner:

Patrick MacDonald, Esq.

Law Office of Christopher Fallon, PC
15 Ferry Street
Malden, MA 02148

Appearance for Respondent:

Michael Sacco, Esq.

285 College Highway
PO Box 479
Southampton, MA 01073

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Angelo Scacchi filed a timely appeal under G. L. c. 32, s. 16 (4) of the August 30, 2006 decision of the Malden Retirement Board that certain compensation he received as "work extra" is not regular compensation and shall not be used in the calculation of his accidental disability retirement allowance. (Exs. 1, 2)

I held a hearing on October 3, 2007 at the office of the Division of Administrative Law Appeals, 98 North Washington Street. I admitted documents into evidence. (Exs. 1 - 15) I marked the joint pre-hearing memorandum "A" for identification. The Petitioner testified on his own behalf, as did Malden Police Chief Kenneth A. Coyle. Kevin Morrison, Executive Director of the Malden Retirement Board testified on behalf of the Respondent. The record was held open for the Memorandum of Understanding between Local 411 Malden Police Superior Officers and the City of Malden (covering the period of July 1, 2005 through June 30, 2006), which I marked as Exhibit 16, and for the Contract between the City of Malden and Local 411, International Brotherhood of Police Officers from July 1, 1996 through June 30, 1999 which I marked as Exhibit 17.
The record closed on November 9, 2007 with the filing of post-hearing briefs.

FINDINGS OF FACT

1. Angelo Scacchi, d.o.b. 8/4/1948, worked as a Senior Captain, and sometimes as Acting Chief, of the Malden Police Department until he retired for superannuation effective March 13, 2006. Mr. Scacchi was later granted accidental disability retirement benefits with a retroactive date of March 13, 2006. (Exs. 5, 6, 7, 8, 10)

2. In his position as Senior Captain, Mr. Scacchi worked as the Acting Chief during the Chief's annual vacation days, sick days, and whenever the Chief was away attending a conference. Mr. Scacchi assumed the Chief's duties and responsibilities, including attending city council meetings and traffic committee hearings, working in a snow emergency, and dealing with union issues. (Testimony)

3. Mr. Scacchi was paid an extra $3,000 per year for being Senior Captain and filling in for the Chief in the Chief's absence. (Testimony)

4. The position of Chief is a salaried position, and the Chief cannot be paid overtime. (Testimony)

5. Hours in excess of 40 hours per week that Mr. Scacchi worked when he was working as Acting Chief were recorded as "work extra," and when Mr. Scacchi retired he was paid $49.95 per hour for 208.5 hours of "work extra" for a total of $10,412.49. (Exs. 3, 15)

6. By Memorandum of Understanding between the Malden Police Superior Officers local and the City of Malden, it was agreed that the base wages of the superior officers would increase as follows: 1% effective July 1, 2005; 1% effective January 1, 2006; and 1% effective June 30, 2006. (Ex. 16)

7. The Memorandum of Understanding further provided that "for any Superior Officer retiring on or before February 1, 2006, said base wage increase shall be retroactive to July 1, 2005." (Ex. 16)

8. Mr. Scacchi received a close out check issued in the week ending March 18, 2006 in the total amount of $44,272.09. The Board determined that $5367.60 of this amount constituted regular compensation, and Mr. Scacchi was obliged to pay 5% retirement deductions on this amount in the amount of $268.38. (Testimony, Morrison)

9. The $5367.60 was composed of salary for one day of $399.50; retroactive pay of $1750.60; 7% owed from 2003 in the amount of $1119.00, and three days of holiday pay in the amount of $2098.50. (Ex. 3, Testimony, Morrison)

10. This $5367.60 was used in the calculation of Mr. Scacchi's superannuation retirement allowance which is based on his highest three consecutive year salary average. (Testimony, Morrison)

11. When the Board changed Mr. Scacchi's superannuation retirement allowance to an accidental disability retirement allowance, the computation changed under the provisions of G. L. c. 32, s. 7 (2) (a) (ii) to use the "average annual rate of his regular compensation" on the date of his injury, or for the twelve-month period for which he received regular compensation immediately preceding the date his retirement allowance becomes effective. (Testimony, Morrison)

12. The Board determined that only a portion of the $5367.60 amount was attributable to the 12 month period immediately preceding Mr. Scacchi's retirement. This amount was included in the Board's calculation. (Testimony, Morrison)

13. When the Board calculated Mr. Scacchi's accidental disability retirement allowance, it did not include as regular compensation the $10,412.40 he received in "work extra," and it did not include the last 1% raise that he was entitled to receive if he retired on or before February 1, 2006. (Testimony, Morrison)

14. By letter of June 6, 2006 Police Chief Kevin Coye opined that the "work extra" sum should be included in regular compensation for purposes of computing Mr. Scacchi's retirement allowance. (Ex. 11, Testimony)

15. By letter of June 27, 2007 Mr. Scacchi opined that the "work extra" compensation, and the last 1% base wage increase that he received for retiring prior to February 1, 2006 should be included in regular compensation for purposes of computing his retirement allowance. (Ex. 12)

16. By letter of August 30, 2006 the Board informed Mr. Scacchi that the "work extra" pay, and the payments for unused sick leave and or vacation time were not deemed to be regular compensation for purposes of computing his retirement allowance. (Ex. 1) Mr. Scacchi appealed. (Ex. 2)

CONCLUSION AND ORDER

The decision of the Malden Retirement Board is affirmed. The compensation received by Angelo Scacchi as "work extra," and the 1% base wage increase he would have received on June 30, 2006, are not regular compensation and shall not be used in the computation of his retirement allowance.

Of the $5367.60 contained in the Petitioner's close out check, on which he paid retirement deductions of 5%, only the portion attributable to the 12 month period immediately preceding the date of his retirement allowance was properly used in the calculation of his accidental disability retirement allowance.

Work Extra

An amount of an accidental disability retirement allowance under G.. L. c. 32, s. 7 (2) (a) (ii) is "A yearly amount of pension equal to seventy-two percent of the annual rate of his regular compensation on the date such injury was sustained or such hazard was undergone, or equal to seventy-two percent of the average annual rate of his regular compensation for the twelve-month period for which he last received regular compensation immediately preceding the date his retirement allowance becomes effective, whichever is greater."

Regular compensation defined in G. L. c. 32, s. 1 means "the salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority, not including bonus, overtime, severance pay for any and all unused sick leave, early retirement incentives, or any other payments made as a result of giving notice of retirement …" Under PERAC regulation 840 CMR 15.03 (1) (a), regular compensation includes "the member's annual rate of compensation as provided in an approved salary schedule." Specifically excluded from the definition of regular compensation under 840 CMR 15.03 (2) (a) are "any amounts paid for hours worked beyond the member's normal work schedule," "any amounts paid as early retirement incentives" under 840 CMR 15.03 (2) (e), and "any payments made as a result of the member giving notice of retirement" under 840 CMR 15.03 (2) (f).

The "work extra" amount received by the Petitioner for working "overtime," that is, more than 40 hours per week, when he worked as Acting Chief is not regular compensation. It constitutes compensation for "hours worked beyond the member's normal work schedule" and is therefore specifically excluded from the definition of regular compensation under 840 CMR 15.03 (2) (a). It constitutes "overtime" and is therefore specifically excluded from the definition of regular compensation in G. L. c. 32, s. 1. The Board correctly excluded from the calculation of the Petitioner's accidental disability retirement allowance the $10,412.40 he received in "work extra."

1% raise under the Memorandum of Understanding

Under the Memorandum of Understanding between the union and the City, Superior Officers were to receive base wage increases of 1% effective July 1, 2005, January 1, 2006, and June 30, 2006. "[F]or any Superior Officer retiring on or before February 1, 2006, said base wage increase shall be retroactive to July 1, 2005." Under the express language of this Memorandum, the Petitioner is not entitled to receive the final 1% due on June 30, 2006 because he did not retire prior to February 1, 2006. The Petitioner retired on March 13, 2006.

If we assume that the Memorandum contains an error, that is, it meant to reward those who retire after February 1, 2006 with the extra 1% due on June 30, 2006, the 1% amount does not constitute regular compensation because it represents either "any amount paid as early retirement incentives," or it amounts to "any other payments made as a result of the member giving notice of retirement" under 840 CMR 15.03 and G. L.c. 32, s. 1. The 1% raise in base pay to be awarded on June 30, 2006 was properly excluded from the calculation of the Petitioner's accidental disability retirement allowance because it is not regular compensation.

The decision of the Malden Retirement Board to exclude the amount paid as "work extra," and to exclude the 1% increase in base pay awarded as a result of giving notice of retirement, is affirmed these amounts are not regular compensation is affirmed. It was proper for the Board to exclude from regular compensation that portion of the $5367.60 that was not attributable to the twelve month period immediately preceding the date his accidental disability retirement allowance became effective.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate


DATED: 2/6/08


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