general group. G.L. c. 32, § 3(2)(g). Group 2 is the group for various employees, including those whose regular and major duties require them to have the care, custody, instruction or other supervision of…defective delinquents or wayward children…. Citing this provision, Mr. Forbes seeks to reclassify his service as a case work manager from Group 1 to Group 2, which is more advantageous for the purpose of calculating retirement benefits. An employee’s group generally depends on his or her duties when he or she retires. Maddocks v. Contributory Retirement Appeal Board, 369 Mass. 488, 494 (1976). In some circumstances, an employee who has served in more than one group may receive retirement benefits pro-rated among groups. G.L. c. 32, § 5(2)(a). That is what Mr. Forbes seeks to do. In its prehearing memorandum, SBR brought to my attention that Massachusetts has eliminated the terms “defective children” and “wayward children.” At the start of the hearing, my first question to SBR was whether youth in DYS’s care were “defective delinquents or wayward children” under G.L. c. 32, § 3(2)(g). SBR answered yes. The statutory provision for “defective delinquents,” G.L. c. 123, § 113, see In re Arthur Chinouinard, 358 Mass. 780 (1971)(interpreting statute), was repealed in 1970. St. 1970, c. 888, § 4. The definition of “wayward child” was repealed in 1973. St. 1973, c. 1073, § 6. The term “wayward child” was eliminated from G.L. c. 120, § 21 in 1996. St. 1996, c. 23. The language in Chapter 32 was not amended to reflect the elimination of these terms. As far as I know, no statute, specific court decision, or general principle of statutory construction provides that references to “defective delinquents” and “wayward children” now mean youth under DYS’s care. In fact, the elimination of the terms “defective delinquents” and “wayward children”
requirement in G.L. c. 32, § 3(2)(g) has come to mean that an employee must spend more than half of his or her time engaged in those duties. The Division of Administrative Law Appeals has so decided multiple times. E.g., Jo Ann Neusner v. State Board of Retirement, CR-12-56 *8 (DALA 2015). The Contributory Retirement Appeal Board agrees. E.g., Kathleen Bailey v. State Board of Retirement, CR-07-724 *6 (CRAB 2012); Theresa Currie v. State Board of Retirement, CR-10-461 *4 (CRAB no date). I am not sure that this 51% rule is correct. The words “major” and “majority” are related but they are not the same. To interpret “major duties” to mean “majority of duties” may misread the statute. Furthermore, if an employee is engaged in duties more than half of the time, the duties are necessarily regular. If “major duties” does mean “majority of duties,” then “regular... duties” is superfluous. However, “no word in a statute should be considered superfluous.” International Organization of Masters, Mates & Pilots, Atlantic and Gulf Maritime Region, AFL-CIO v. Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, 392 Mass. 811, 813 (1984). If no statutory word is considered superfluous, then “regular” must mean something and “major duties” cannot mean “majority of duties.” Perhaps the 51% rule should be revisited, but for now, I am bound by CRAB’s embrace of it. Mr. Forbes testified that he spent “about half” of his time engaged in the care, custody, or supervision of youth who were, in turn, in DYS’s care. Twenty-four years after he ended his service as a case work manager, he cannot be more specific. He may have spent 55% of his time directly caring for youth, but he may have spent 45% of his time. Mr. Forbes has the burden of proof. Deborah Herst Hill v. State Board of Retirement, CR-07-605 (DALA 2009)(“The