Number 3 July 30, 1970

Number 3 July 30, 1970 Honorable William F. Powers Commissioner of Public Safety 1010 Commonwealth Avenue Boston. Massachusetts 02215 Dear Commissioner Powers: Your predecessor requested my opinion whether qualified applicants for the position of State Police Detective Lieutenant Inspector, upon appointment to that position, could receive credit for prior service in police departments of cities and towns of the Commonwealth, so that such applicants might be placed in a step in grade above that of the minimum in the grade to which they are appointed. General Laws c. 30, § 45 provides, in pertinent part: "The director of personnel and standardization shall estab- lish, administer and keep current and complete an office and position classification plan and a pay plan of the common- wealth. "(6) Subject to the approval of the commissioner of ad- ministration, the Director of Personnel and Standardization shall make, and from time to time may amend, rules govern- ing the establishment and administration of the said classifica- tion and pay plans, and credits due officers or employees, subject to this section, for previous services. Such rules, and amendments thereto, shall be open to public inspection in the files of the bureau of personnel and standardization and copies thereof shall be made available to officers and em- ployees of the commonwealth upon request." Pursuant to the statutory mandate of G. L. c. 30, § 45, the Director of Personnel and Standardization has established an office and position classification plan and a pay plan of the Commonwealth and has prom- ulgated rules referred to in G. L. c. 30, § 45(6). Rule 9b of the director's rules provides: "When an employee is entering the service of the Com- monwealth for the first time or is re-employed, after continu- ous separation of three years or more from the service of the Commonwealth, which Director of the Bureau of Personnel and Standardization finds was caused by reasons other than those listed in Rule 9C IV, he shall receive the minimum Sal- 38 P.D. 12 ary Rate in the Grade to which he is allocated in the General Salary Schedule in force at time of employment or re-em- ployment. The above provision shall apply on all Emergency employment whether original entry or otherwise." The question for resolution is thus whether a person appointed to the position of State Police Detective Lieutenant Inspector who has previ- ously served in a police department of a city or town of the Common- wealth "is entering the service of the Commonwealth for the first time" and must, therefore, receive the minimum salary rate in the grade to which he is allocated. It is my opinion, for the reasons hereinafter stated, that service in a police department of a city or town of the Com- monwealth is not service of the Commonwealth, and, accordingly, a person appointed to the position of State Police Detective Lieutenant Inspector may not receive credit for such prior service. Rule 9b there- fore applies, and a person so appointed must be placed in the minimum salary step of the grade to which he is appointed. I think it clear that persons appointed as police officers of the cities and towns of the Commonwealth are employees of the respective cities and towns and not of the Commonwealth, they are appointed and em- ployed by the local municipalities involved. Thus, the terms and condi- tions of employment as a police officer may be set by each appointing authority. McAidiffe v. New Bedford, 155 Mass. 216, 220. In my view, the identity of the appointing authority is controlling. Phillips v. Boston, 150 Mass. 491,494. In considering the question presented, I have examined G. L. c. 30, § 46, paragraph 5 and 5A and find that they are inapplicable. Paragraph 5 pertains to emergency recruitment, which is not the situation you pre- sent, and paragraph 5A permits recruitment of professional personnel, primarily in medical and technical positions. While the position of State Police Detective Lieutenant Inspector involves the performance of pro- fessional duties, it does not appear to fall within the category of "profes- sional personnel" as that term is used in paragraph 5A. In conclusion, then, it is my opinion that applicants for the position of State Police Detective Lieutenant Inspector may not receive credit for prior service in police departments of cities and towns of the Common- wealth. Very truly yours, ROBERT H. QUINN Attorney General