Hollum v. Contributory Retirement Appeal Board

757 N.E.2d 1126, 53 Mass. App. Ct. 220, 2001 Mass. App. LEXIS 1037
CourtMassachusetts Appeals Court
DecidedNovember 9, 2001
DocketNo. 99-P-1629
StatusPublished
Cited by5 cases

This text of 757 N.E.2d 1126 (Hollum v. Contributory Retirement Appeal Board) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hollum v. Contributory Retirement Appeal Board, 757 N.E.2d 1126, 53 Mass. App. Ct. 220, 2001 Mass. App. LEXIS 1037 (Mass. Ct. App. 2001).

Opinion

Mason, J.

George B. Hollum, Jr., appeals from the dismissal of his complaint against the Contributory Retirement Appeal Board (CRAB) and the Public Employee Retirement Administratian Commission (PERAC) by a Superior Court judge. The complaint alleged that CRAB and PERAC had improperly determined that Hollum was ineligible for the augmented retirement benefits provided by G. L. c. 32, § 28N, even though he [221]*221had retired from his position as an assistant deputy superintendent at the Worcester County jail and house of correction with over twenty years of service with county sheriffs’ offices. Sectian 28N provides for such augmented retirement benefits2 for “any correction or jail officer employed by county sheriffs’ offices who has performed services in said office for not less than twenty years.” We reverse the judgment for the defendants and remand for entry of judgment for Hollum.

The facts. The documents and other materials included in the record show the following facts. Hollum was employed by the Essex County sheriff’s office from July 1, 1970, to June 22, 1990. Between June 25, 1990, and November 1, 1994, when he retired for superannuation, he was employed by the Worcester County sheriff’s office. At the time of his retirement Hollum was employed as an assistant deputy superintendent at the Worcester County jail and house of correction.

The Worcester County sheriff’s office is organized into three units: deputy sheriffs, correctional officers at the Worcester County jail and house of correction, and civilian employees at the Worcester County jail and house of correction and at the sheriff’s office. Deputy sheriffs are police officers who may serve as civil and criminal process servers or who may serve in a formal law enforcement function at the Worcester County jail and house of correction. Correction officers are uniformed personnel who are charged with the care and custody of inmates and have limited law enforcement authority. Civilian employees are staff personnel who support the deputy sheriffs and correctional officers in carrying out their primary functions.

Assistant deputy superintendents at the Worcester County jail and house of correction assume command of a department or unit of the facility. In connection with such command, assistant deputy superintendents supervise a number of correction officers of lower rank or grade, including captains, lieutenants, sergeants, and officers, in the direct care and custody of [222]*222prisoners. They also perform various administrative tasks in connection with operation of the facility, including fiscal management, property maintenance, processing and personnel activities. They are referred to as correctional officers by the Worcester County sheriff’s office.

Shortly prior to his retirement, Hollum requested that the Worcester County retirement board (board) provide him with an estimated calculation of his retirement allowance, calculated pursuant to the provisions of G. L. c. 32, § 28N. The board requested that PERAC provide an opinion whether Hollum was entitled to have his allowance calculated pursuant to § 28N, and PERAC responded that Hollum was not entitled to have his allowance calculated pursuant to § 28N because he was employed as an assistant deputy superintendent rather than a correction or jail officer. PERAC reasoned that, while the term “correction or jail officer” is not defined in § 28N, the positions of “assistant deputy superintendent” and “correction officer” are listed separately in G. L. c. 32, § 3(2)(g), indicating the Legislature’s intent to treat as distinct the two positions. PERAC further reasoned that “[i]f it were the intention of the [Legislature that all employees of [county] correctional facilities were to be entitled to retire under the provisions of G. L. c. 32, § 28N, they would have expressly so stated.”

Acting on behalf of Hollum, the board asked PERAC to reconsider its decision. PERAC reiterated its decision. Hollum then appealed to CRAB pursuant to G. L. c. 32, § 16(4). CRAB referred the matter for a hearing before a magistrate of the Division of Administrative Law Appeals. See G. L. c. 7, § 4H.

The magistrate upheld PERAC’s determination. Like PERAC, the magistrate reasoned that if the Legislature had intended to include the position of assistant deputy superintendent within the positions covered by § 28N, it would have said so expressly.

Hollum filed objections to the magistrate’s decision as permitted by G. L. c. 32, § 16(4). CRAB affirmed the magistrate’s decision and adopted it as its own.

Hollum thereafter filed his complaint in Superior Court and moved for judgment on the pleadings. The judge denied Hollum’s motion and allowed a cross motion by the defendants to dismiss the complaint, determining that the defendants’ construe[223]*223tian of § 28N was reasonable and, hence, was entitled to deference.3

Discussion. General Laws c. 32, § 28N, as inserted by St. 1994, c. 36, provides in pertinent part:

“Notwithstanding the provisions of sections one to twenty-eight, inclusive, to the contrary, any correction or jail officer employed by county sheriffs’ offices who has performed services in said office for not less than twenty years shall, at his own request, be retired by said retirement board [and be eligible for the augmented retirement benefits provided by this section]” (emphasis added).

On its face, the phrase “any correction or jail officer employed by county sheriffs’ offices” would appear to include an officer, such as Hollum, who is assigned to a county correctional facility and charged with direct responsibility for the care and custody of prisoners. “The word ‘any’ is generally used in the sense of ‘all’ or ‘every’ and its meaning is most comprehensive.” Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir. 1992), cert, denied sub nom. Doughboy Recreational, Inc. v. Fleck, 507 U.S. 1005 (1993), quoting from Leach v. Philadelphia Sav. Fund Soc., 234 Pa. Super. 486, 491 (1975). See United States v. Rosenwasser, 323 U.S. 360, 362-363 (1945) (“any” employee means all employees under the Fair Labor Standards Act, unless specifically excluded).

Notwithstanding the use of the word “any” in § 28N, PERAC opined that § 28N was not applicable to Hollum because the positions of “assistant deputy superintendent” and “correction officer” are listed separately in G. L. c. 32, § 3(2)(g). Section 3(2)(g) provides for the classification of public employees in one of four numbered “groups” for retirement purposes.4 Group 4, as appearing in St. 1996, c. 71, § 1, includes, among other persons:

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Cite This Page — Counsel Stack

Bluebook (online)
757 N.E.2d 1126, 53 Mass. App. Ct. 220, 2001 Mass. App. LEXIS 1037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollum-v-contributory-retirement-appeal-board-massappct-2001.