Number 6 July 10, 1975

Number 6 July 10, 1975 Mr. John R. Buckley, Secretary Executive Office of A dministration and Finance State House Boston, Massachusetts 02133 Dear Secretary Buckley: You have requested my opinion with respect to the following questions: 1. May the Director of Civil Service, in the exercise of his discre- tion, determine that there is a special need shown by the City of Somerville, that may be met by hiring disadvantaged (unemployed) residents as police officers which can be satis- fied through the use of CETA funds and, if so, may he selec- tively certify a list of CETA eligible candidates for appoint- ment to the Somerville Police Department who are on the existing certified civil service lists for police officers? 2. If your answer to the preceding question is in the affirmative, in what manner shall the selective certification list be prepared so as to harmonize with current decisions of the Federal and State courts. Chapter 828 of the Acts of 1974 provides that certain temporary positions, created pursuant to CETA, shall be exempt from the Civil Service provisions of G.L. c. 31. However, Section 2 of Chapter 828 specifically states that this exemption shall not apply to law enforcement officers. Thus, if CETA- eligible candidates are to be certified for the position of police officer, the certifications must conform to G.L. c. 3 1, and to the regulations promulgated thereunder. Section 23 of c. 31 provides that the names of persons who pass examina- tions for appointment to any position classified under the civil service shall be placed upon the eligible lists in the following order. ( 1 ) Disabled veterans as defined in section twenty-three A, in the order of their respective standing; (2) veterans in the order of their respective standing; (3) persons described in section twenty- three B in the order of their respective standing; (4) other appli- cants in the order of their respective standing. Upon receipt of a requisition, names shall be certified from such lists according to the method of certification prescribed by the civil service rules. A disabled veteran shall be retained in employment in preference to all other persons, including veterans. When an appointment is to be made, the Director certifies three names for one vacancy, four names for two vacancies and so forth. (See Civil Service - Rule 14). All appointments to positions classified under the Civil Service are to be made in the foregoing manner except that, under Civil Service Rule 14, separate eligible lists may be kept of those seeking to enter any part of the service in which "special qualifications" are required. In this way candidates having such special qualifications can be certified separately. For example, 76 P.D. 12 Rule 10 would allow creation of a separate eligible list of Spanish-speaking candidates for a position involving public contact in a largely Spanish- speaking area. There is no indication in your request of any job-related special qualifica- tion possessed by CETA-eligibles. Therefore, it is my opinion that the Direc- tor of Civil Service may not selectively certify CETA-eligible candidates for appointment to the Somerville Police Department. It is, thus, not necessary to reach the second question you have presented. Very truly yours, FRANCIS X. BELLOTTI Attorney General Number? July 11, 1975 Mr. Robert Q. Crane Treasurer & Receiver General Chairman, State Board ofRetirement 73 Tremont Street Boston, Massachusetts 02108 Dear Treasurer Crane: You have requested an opinion as to whether an Industrial Instructor qualifies as a "corrections officer" for purposes of G.L.c. 32, §100, which provides in pertinent part that: Notwithstanding any provision of this chapter or otherwise ... if a corrections officer while in the performance of duties and as a result of an assault on his person is killed or sustains injuries which result in his death, there shall be paid to the widow of such . . . corrections officer an annual amount of pension which shall be equal to the amount of salary which would have been paid to such . . . corrections officer had he continued in service in the position held by him at the time of his death. Your request relates to a claim by the widow of the late Alfred J. Bara- nowski, Industrial Instructor at MCI Norfolk, for payment of benefits under §100 of c. 32. 1 find that Mr. Baranowski was such an officer. Chapter 32 does not contain a definition of the term "corrections officer." Additionally, there is no definition of the term "corrections officer" in the statutes governing the Department of Corrections or the Civil Service Com- mission.' An analysis of the language and history of §100 indicates that its purpose is to give a full pension to widows of those employees of the fire department, police department, and correction agencies who, as a result of their duties, are exposed to the risk of danger on a day-to-day basis. In this regard, it is important to note that the amending legislation to G.L.c.32, §100 has been expansive in nature.^ 'The use of the term corrections officer appears to be limited to c. 32, §100. Section 2 of c. 27, the enabling statute of the Department of Corrections, gives the Commissioner the power to appoint "officers." Section 46 of c. 32, which brings prison employees within the Massachusetts retirement and pension system uses the term "officer" and indicates that it shall include "prison officer, correction officer and matron." 'For example, the 1969 amendment expanded its coverage of firemen by including those killed while "returning from" in addition to those killed while "responding to an alarm of fire." St. 1971, c. 1012. P.D. 12 77 Since, as noted above, there is no statutory definition which would indi- cate whether an industrial instructor qualifies as a corrections officer for purposes of c. 32, § 100, a consideration of the scope of the duties and authority of industrial instructors becomes important. There are both rele- vant statutory and administrative guidelines. Section 52 of c. 127 provides that industrial instructors "shall have the same authority relative to prisoners as the subordinate officers of the institu- tion where they are employed." This statutory authority is reinforced by the published and unpublished policies of the Department of Corrections and of the Labor Relations Commissions of the Commonwealth. The Riot Control plan (1957, as amended in 1961) of the Department of Corrections indicates that in emergency situations industrial instructors are given the same responsibilities - and exposed to the same dangers - as correction officers. Industrial personnel are given "full security, authority and responsibility," regarded as "security personnel," and provided with "training ... in firearms." I have been informed that the Department of Corrections does not limit the industrial instructors' assumption of the duties of correction officers to emergency situations. Rather, on a day-to-day basis, industrial instructors carry many of the same security responsibilities and hence, are exposed to similar risks as correction officers. Letter from Robert A. Thomas, Assistant to the Commissioner, Industries to Attorney General's office, June 26, 1975. The co-mingling of the duties of industrial instructors and correction officers was the basis for the inclusion of industrial instructors in the same bargaining unit as corrections officers by the Labor Relations Commission of the Commonwealth. As indicated by an opinion of a hearing officer of the Labor Relations Commission, members of this bargaining unit are grouped together because they have "frequent and direct contact with the inmate population." As a consequence, "they face a continuing risk of physical harm." Other classes of institutional employees are not included in this bargaining unit because they have "no custodial responsibilities." Hearing Officers Decision, Case Nos. SCR- 1 10, 1 18, 2063, June 13, 1975. In conclusion, because of the close similarity between the authority and duty of industrial instructors and correction officers, I find that the late Alfred L. Baranowski, an industrial instructor, was a "corrections officer" within the meaning of G.L.c. 32, §100. Therefore, his widow is entitled to the benefits authorized by that section, provided the State Board of Retirement determines that his death occurred as a result of an "assault on his person" while in the performance of his duties. Very truly yours, FRANCIS X. BELLOTTI Attorney General 78 P.D. 12 Numbers July 11, 1975 Ms. Ann S. Ramsay Assistant Secretary, E.O.A.F. Personnel Administrative P.O. Box 2650 Boston, Mass. 02208 Dear Ms. Ramsay: You have requested my opinion as to whether Director Powers' adminis- trative definition of the word "department" for purposes of layoff, demotion and reinstatement is consistent with the provisions of G.L. c. 31. By letter dated May 23, 1975, Secretary of Administration and Finance Buckley requested my opinion concerning five questions. Questions three and four related to the issue you have raised — the definition of "department" for purposes of layoff, demotion, and reinstatement. By letter dated May 29, 1975, Secretary Buckley withdrew his request for opinions concerning questions three and four. Because the Secretary of Administration and Finance has withdrawn his request for an opinion concerning the definition of the word "department", I decline to respond to an indentical question posed by an agency under the jurisdiction of the Secretary of Administration and Finance. Very truly yours, FRANCIS X. BELLOTTI Attorney General