COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. Division of Administrative Law Appeals
v. Docket No. CR-07-68
Boston Retirement Board,
Appearance for Petitioner:
Michael E. Williams, Esq.
159 Burgin Parkway
Quincy, MA 02169
Appearance for Respondent:
Edward H. McKenna, Esq.
66 N Street
Boston, MA 02127
Kenneth J. Forton, Esq.
The Petitioner, Stephanie O'Neil, appealed timely under G.L. c. 32, § 16(4) the January 13, 2007 decision of the Respondent, Boston Retirement Board, to exclude holiday pay, educational incentive pay and academy pay in the calculation of her accidental disability retirement benefits. (Ex. H) The Petitioner elected to waive a hearing and has elected instead to proceed on written submissions, pursuant to 801 CMR 1.01(10)(c). On March 18, 2008, the Petitioner submitted her brief and fourteen exhibits. (Petitioner's Exs. A-N) On the same day, the Respondent filed its brief and four exhibits. (Respondent's Exs. 1-4) The record closed March 18, 2008 upon receipt of the Respondent's brief.
FINDINGS OF FACT
Based on the evidence presented by the parties, I make the following findings of fact:
1. Stephanie O'Neil, d.o.b. 4/18/70, worked for the City of Boston in the Municipal Police Department from July 21, 1993 to October 10, 2004, when she was granted an accidental disability retirement. (Exs. A, B)
2. In June 2003, the Civil Service Commission created three new civil service classifications in the Police Officer job series (0083), including Boston Municipal Police Officer (0083P). (Ex. L)
3. On the date of her retirement, Ms. O'Neil held the Civil Service classification of Boston Municipal Police Officer. (Exs. A, M)
4. On April 27, 2006, the Board and the Public Employee Retirement Administration Commission approved Ms. O'Neil's application for accidental disability retirement, effective October 10, 2004. (Ex. L)
5. During the last three years of her employment, Ms. O'Neil and all similarly situated Municipal Police Officers were entitled to receive holiday pay. Article XVI, § 2, of her collective bargaining agreement provides, in relevant part: "When any . . . holiday falls on an employee's scheduled workday or on an employee's scheduled day off or during his vacation or during any period of other compensable leave under this Agreement, he shall receive for each such holiday, in addition to his regular weekly compensation, an additional day's pay, computed as one-fifth of his regular weekly compensation. Holiday pay shall be considered as regular compensation for pension/retirement purposes." (Ex. K)
6. Pursuant to Article XV, § 4(a) (entitled "Specialty/Education Pay Incentive") of her collective bargaining agreement, Ms. O'Neil and other similarly situated Municipal Police Officers were entitled to receive $50.00 weekly if they had completed the Police Training Academy program approved by the Massachusetts Criminal Justice Training Council. (Ex. K)
7. Article XV, § 4(b) further provides: "Effective July 1, 1987 and [sic] employee shall receive the higher of the following educational incentives: For earning an Associate Degree in Law Enforcement or 60 credits toward a Baccalaureate Degree in Law Enforcement, the sum of $16.00 weekly; For earning a Baccalaureate Degree in Law Enforcement, the sum of $24.00 weekly." (Ex. K)
8. Article XV, § 4(e) of the collective bargaining agreement states: "Specialty/ education pay incentive payments shall be made weekly, shall be included in base pay for the purpose of computing overtime, court time, sick pay, workers compensation pay, holiday pay and vacation pay, and shall be considered regular compensation for pension/retirement purposes." (Ex. K)
9. At the time of her injury, Ms. O'Neil was earning $50.00 academy pay per week and $24.00 educational incentive pay per week. (Exs. C, D)
10. For the period April 6, 2001 to April 26, 2002, Ms. O'Neil intermittently received weekly holiday pay in amounts ranging from $123.22 per week to $137.07 per week. The amounts received differed because they were based on her rising base compensation. (Ex. D)
11. Retirement deductions were withheld from Ms. O'Neil's holiday pay, education incentive pay and academy pay. (Ex. H)
12. Through her attorney, Ms. O'Neil requested that the Board include her holiday pay, educational incentive pay and academy pay in the calculation of her regular compensation, upon which her disability retirement allowance was calculated. (Ex. E)
13. On January 13, 2007, the Board denied Ms. O'Neil's request to include holiday pay, education incentive pay and academy pay in her regular compensation. The Board agreed, however, that a stipend received for being deployed under the direction of the Boston Housing Authority was regular compensation. (Ex. H)
14. On January 25, 2007, Ms. O'Neil appealed the Board's decision regarding holiday pay, education incentive pay and academy pay. (Ex. I)
CONCLUSION AND ORDER
The decision of the Boston Retirement Board is reversed. The Board shall recalculate Ms. O'Neil's accidental disability retirement allowance to include her holiday pay, education incentive pay and academy pay as regular compensation.
An accidental disability retirement allowance is based, in part, on the retiree's regular compensation in the twelve month period for which the retiree received regular compensation. G.L. c. 32, § 7(2)(a)(ii) (emphasis added). Regular compensation as defined in G.L. c. 32, § 1 is "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 . . . ."
Holiday pay is not regular compensation, except as authorized by law. 840 CMR 15.03(2)(b). G.L. c. 32, § 1 provides such an exception: "In the case of police officers, . . . money paid for holidays shall be regarded as regular compensation rather than as overtime and shall be included in the salary on which deductions are to be paid to the annuity savings fund." Ms. O'Neil contends that she is a police officer and is consequently entitled to have her holiday pay included in her regular compensation. The Board argues that Ms. O'Neil was a Boston Housing Authority employee and, thus, does not fall within the police officer exception. Based on the City's payroll and human resources records, this is untrue-Ms. O'Neil was an employee of the City of Boston. Moreover, who employed her is irrelevant, so long as she was a police officer.
Ms. O'Neil was a police officer. When she retired, Ms. O'Neil was classified as a Boston Municipal Police Officer by the Civil Service Commission and her employer, the City of Boston. The classification falls within the Civil Service Commission's Police Officer job series (0083). Her civil service classification is prima facie evidence that she is a police officer for purposes of the applicable retirement law. Citing no relevant authority, the Board argues that Ms. O'Neil was not a police officer because she was not employed by the Boston Police Department. The Board's argument fails because the holiday pay exception in G.L. c. 32, § 1 only requires that the retiree be a police officer and not a member of any specific police force. Therefore, Ms. O'Neil's regular compensation should include her holiday pay.
Ms. O'Neil also maintains that the education incentive pay, which she received for earning a baccalaureate degree, and academy pay, which she received for graduating from the Police Training Academy, should be included in her regular compensation. She cites 840 CMR 15.03(d)(4), which expressly includes in regular compensation "any amounts paid as educational incentives," provided they meet the general criteria in 840 CMR 15.03(1)(a) through (c). The Board contends that only "Quinn Bill" benefits paid pursuant to G.L. c. 41, § 108L, qualify as educational incentives and, thus, regular compensation. Since Ms. O'Neil never received "Quinn Bill" benefits, and instead received a separate bargained-for educational incentive, the Board argues, she is not entitled to have her educational incentives included in regular compensation. Again, the Board cites no authority for this argument. Neither G.L. c. 32 nor 840 CMR 15.00 recites any such requirement.
Ms. O'Neil's educational incentive pay is regular compensation because it meets the definition of regular compensation found in G.L. c. 32, § 1, and its implementing regulations, at 840 CMR 15.03 (1)(a). The educational incentive was actually paid to her. See 840 CMR 15.03(1)(a)(1). The payments were made as remuneration for her services as a municipal police officer. See 840 CMR 15.03(1)(a)(2). The payments were "ordinary, normal, recurrent, repeated, and of indefinite duration," as she received the payments pursuant to a collective bargaining agreement, which provided that any employee who completed a Baccalaureate degree in law enforcement was entitled to $24.00 weekly. See 840 CMR 15.03(1)(a)(3) and (4). Finally, because the payments were made to any employee who had attained the appropriate degree, they were made "on a non-discriminatory basis" and were "generally available for employees who [were] similarly situated relative to the purpose of the payment." See 840 CMR 15.03(1)(a)(5).
For the same reasons, Ms. O'Neil's academy pay also should be included in her regular compensation. Academy pay is received for having completed a twelve-week Police Training Academy approved by the Massachusetts Criminal Justice Training Council; it is, therefore, an amount paid as an educational incentive, and should be included in regular compensation, so long as it meets the criteria found in 840 CMR 15.03(1)(a). As it meets these criteria for the same reasons, outlined supra, that the education incentive pay does, Ms. O'Neil's academy pay is regular compensation.
The Board asserts, again without record support, that Ms. O'Neil's academy pay is not regular compensation because it is a one-time bonus payment, see 840 CMR 15.03(2)(c), paid to her for completing training. The City's payroll records clearly show that Ms. O'Neil received $50.00 each week for having completed the required training. Moreover, the payments were made pursuant to the collective bargaining agreement, which clearly states that Ms. O'Neil was entitled to $50.00 "weekly," not on a one-time basis.
Finally, the Board argues that none of the disputed pay is regular compensation because Ms. O'Neil's employing authority did not determine that it was, and consequently did not withhold retirement contributions. This misapprehension seems to be partially rooted in the Board's insistence that Ms. O'Neil was employed by the Boston Housing Authority. As stated above, she was employed by the City of Boston, not the Boston Housing Authority, which is a separate "public body politic and corporate" created by the Legislature. G.L. c. 121B, § 3. Moreover, the City, through its collective bargaining agreement with the municipal police officers, did determine that all of the disputed pay would be treated as regular compensation and that retirement deductions would be withheld from it. In fact, in its January 13, 2007 denial letter, the Board itself admitted that deductions were withheld. Ms. O'Neil's academy pay is regular compensation.
The Board shall recalculate the Petitioner's accidental disability retirement allowance to include her holiday pay, educational incentive pay and academy pay as regular compensation.
DIVISION OF ADMINISTRATIVE LAW APPEALS
/s/ Kenneth J. Forton
DATED: March 13, 2009