Decision  Sawin, Richard v. State Board of Retirement (CR-16-18)

Date:	11/30/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-16-18

• Petitioner: Richard Sawin
• Respondent: State Board of Retirement
• Appearance for Petitioner: Richard Sawin
• Appearance for Respondent: Melinda E. Troy, Esquire
• Administrative Magistrate: Judithann Burke

Summary of Decision

The Petitioner has not met his burden of proving that he is entitled to be classified in Group 2 for retirement purposes by of his position as Fire Safety Officer at the University of Massachusetts at Amherst.  An institution of higher learning is not an employer of individuals who qualify for Group 2 classification based on having care, custody, control or other instruction over mentally ill persons or prisoners.    

Decision

Pursuant to M.G.L. c. 32, § 16(4), the Petitioner, Richard Sawin, is appealing from the December 24, 2015 decision of the Respondent, State Board of Retirement Board (SBR), denying his request to be classified in Group 2 for retirement purposes.    (Exhibit 1.)   The Petitioner’s timely appeal was received on January 11, 2016.¹  (Exhibit 2.)  I held a hearing on July 23, 2018 in Room 320 at 436 Dwight Street, Springfield, MA.   

At the hearing, the Petitioner testified in his own behalf.  The Petitioner also presented the testimony of Benjamin Miller, a part-time Fire Safety Service Technician at the University of Massachusetts at Amherst.  Both parties submitted pre-hearing memoranda of law.  (Respondent-Attachment A & Exhibits 1-6; Petitioner-Attachment B & Exhibit 7.²)  Both parties stated their arguments for the record.  The hearing was digitally recorded.       

Findings of Fact

1. The Petitioner, Richard Sawin, born in 1959, began employment as a Fire and Safety Officer at the University of Massachusetts in Amherst on or around March 20, 1983.  (Exhibit 3.)  
2. The Form 30 for the Petitioner’s position provides that those who hold the position work in the campus health and environment safety program.  In addition there is a focus on fire prevention.  The Petitioner’s duties require him to provide emergency services for any “hazardous environmental incident,” assist in the implementation of campus safety procedures and be a first responder to environmental problems on campus.  (Exhibit 6 and Petitioner Testimony.)
3.  The emergency services for any fire safety related incidents to which the Fire Safety and Prevention Officers respond may involve hazardous materials.  The Fire and Safety Officer must be able to work in confined spaces under potentially hazardous circumstances.  They must also provide first response and assessment of fire-related problems.  They must cordon off the affected areas and redirect foot and motor traffic.  (Attachment B, Petitioner Testimony & Exhibits 3, 5 and 6.)
4. The Fire and Safety officers do not participate in any fire rescue or fire suppression activities.  They do not respond to medical emergencies.  The local fire department and emergency medical services units from the City of Northampton are summonsed in these sorts of emergencies.  (Id.)
5. On December 7, 2015, the SBR received a group Classification Questionnaire wherein the Petitioner requested to be classified in Group 2 for retirement purposes.  (Exhibit 3.) 
6. At its meeting held on December 24, 2015, the SBR denied the Petitioner’s request to be classified in Group 2.  (Exhibit 1.)

In a letter dated January 6, 2016 and post-marked January 7, 2016, the Petitioner filed a timely appeal.  (Exhibit 2.)

Conclusion

G.L. c. 32 (3)(2)(g) provides, in pertinent part:

            “…the board shall classify each member in one of the following groups:

            Group 1.  Officials and general employees including clerical, administrative and technical workers, laborers, mechanics and all others not otherwise classified.

            Group 2….employees whose regular and major duties require them to have the care, custody, instruction or other supervision of prisoners, or persons who are mentally or physically defective or defective delinquents.    

After a careful review of all of the testimony and documents in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal.   While his regular and major duties include his having contact with the students, faculty, staff and visitors at UMass, the setting is an institution of higher learning.  The population of people with whom he interacts does not include prisoners, individuals with mental illness, or defective delinquents. ³  Further, the Petitioner may have initial authority at a fire alarm malfunction or a hazardous waste scene; however, he is not responsible for care, custody, control, instruction or ofther supervision of any of the campus denizens. 

The Petitioner suggested during his presentation during the hearing that he feels that his position may qualify for classification in Group 4.  First, I have no jurisdiction over the issue of Group 4 classification in this case.  That is because the Petitioner never formally requested Group 4 classification, and, the SBR never voted on the issue.  This issue does not merit serious analysis in this Decision.  Briefly, as to the merits of the issue of Group 4 classification, the Petitioner’s job title, Fire Prevention and Safety Officer, is not a title set forth in Group 4.  Further, no single duty in the composite of his job description is exclusive to any position enumerated in Group 4.   

Based on the foregoing, the decision of the SBR denying the Petitioner’s request to be classified in Group 2 is affirmed. 

So ordered.

Division of Administrative Law Appeals:

BY,

 

Judithann Burke

Administrative Magistrate                                          DATED November 30, 2018

¹ The post-mark date on the Petitioner’s January 6, 2016 appeal letter is January 7, 2016.  The appeal was determined to be timely.

²  The Petitioner’s pre-hearing submission included two attached documents.  The first was a duplicate of his Classification Questionnaire, and, was included in the SBR’s Exhibits.  The second document, pertaining to his training history, was marked Exhibit 7.

³ The Legislature repealed the statutory provision for defective delinquents in 1970.  Since then, “it is no longer possible for state employees to engage in the care, custody, instruction or other supervision of defective delinquents,” and, thus base Group2 classification on such a rule.