Number 11 November 19, 1971

Number 11 November 19, 1971 Honorable Robert Q. Crane Treasurer and Receiver General Chairman, State Board of Retirement 73 Tremont Street Boston, Massachusetts 02108 Dear Mr. Crane: You have requested an opinion on several questions relating to the credit for military service to be given to Aime J. Caron of Middleboro who has indicated that he intends to retire from his position as a correc- tion officer at the State Farm, Bridgewater. It appears that Mr. Caron took an examination on June 11, 1938 for correction officer for state and Fall River services, and an eligible list was established as a result of that examination on April 14, 1939. Mr. Caron's name was on that list, as he received a grade of 77.39 on the examination. Mr. Caron entered the military service of the United States in September of 1940, and, on Feb- ruary 7, 1941, he was advised that "your name will be withheld from future certifications from the correction officer's list until you notify this office [Division of Civil Service] that you are available for appoint- ment." Notwithstanding the above-quoted letter, Mr. Caron was certified on June 10, 1941 to the Fall River Real Estate Department for appoint- ment, but he was, of course, unable to accept the appointment at that time. On September 6, 1944, he was notified as follows: "Your two-year period of eligibility for Correction Officer ex- pired on April 14, 1941 but the eligibility was continued until Au- gust 15, 1941 when a new list was established. P.D. 12 67 "After you have received your honorable discharge, please ex- hibit it in this office together with a certificate from a registered physician that you are not physically disabled or incapacitated for performing the duties of a correction officer. Your name will then be restored to the eligible list." Subsequently, on November 8, 1944, Mr. Caron was advised that his "name was restored to the eligible list for State Correction Officer serv- ice for certification to the State Farm only." On April 25, 1945, his name was certified for appointment to the State Farm, and on May 6, 1945, he was appointed a permanent Correction Officer at that institu- tion. Your question arises because of the provisions inserted in G. L. c. 32, § 5(1) by St. 1967, c. 889. Chapter 889 inserted a new paragraph (j) in sub-section 1 as follows: "(j) Any member who was appointed while serving in the armed forces between January first, nineteen hundred and forty and July first, nineteen hundred and fifty-five, or who, during such period, was certified for appointment, but en- tered the military service before such appointment and was subsequently appointed from the same list after his discharge or release from military service, shall have credited as credit- able service towards retirement the period beginning as of the date of his appointment or certification for appointment and ending as of the date of his discharge or release from military service; provided, however, that such creditable service shall not be construed to include service for more than four years." In view of the certification of Mr. Caron' s name to the Fall River Real Estate Department on June 10, 1941 and his subsequent appoint- ment to the State Farm, Bridgewater, you ask whether "an employee who is certified for appointment in the service of the city but who after discharge from military service accepts an appointment from the state is entitled to the credit provided in [paragraph j] ..." It is my opinion that the employee is entitled to the credit in this instance. It is clear that Mr. Caron' s certification to the Fall River Real Estate Department in 1941 and his subsequent appointment to the State Farm in 1945 both occurred as a result of his successfully passing the examina- tion taken on June 11, 1938. Although the statute refers to being "sub- sequently appointed from the same list" as the list from which he was originally appointed or certified, I construe that language as meaning the employee must be subsequently appointed as a result of the examination he originally took and which caused him to be appointed or certified for appointment in the first place. I do not think that the Legislature in- tended that one must be appointed from the same physical list as that from which he was originally appointed or certified. The intent was clearly to give credit for military service to those persons who, as a re- sult of having successfully passed civil service examinations, would 68 P.D. 12 have been appointed to civil service positions but for their service in the armed forces at the time of appointment. That intent is carried out by the conclusion which I have reached, which conclusion is given further support by the fact that the Legislature provided for a maximum credit of four years' military service, whereas most civil service lists have a maximum life of two years. See G. L. c. 31, § 12. Your second question is who is liable for the pension payment for the military service credit. I can find no provision which would make the City of Fall River liable for a portion of the cost of the pension, and I therefore conclude that the Commonwealth is liable for the entire pen- sion payable to Mr. Caron. Very truly yours, ROBERT H. QUINN Attorney General