Retired Malden police sergeant and member of MassCOP Local 479, Paul McLeod, successfully appealed the Malden Retirement Board’s decision to exclude hazardous duty pay from regular compensation for purposes of computing retirement benefits. In January 2022, following an audit from the Public Employee Retirement Administration Commission (PERAC), the retirement board stopped treating hazardous duty pay as regular compensation; PERAC had recommended this change because it found there was “no service” associated with hazardous duty pay.
McLeod, represented by Sandulli Grace attorney Laurel Goldstein, appealed the retirement board’s decision to exclude hazardous duty pay from his regular compensation. McLeod argued that hazardous duty pay is regular compensation because it is compensation received as wages, specifically, pre-determined, non-discretionary, guaranteed payments received because of the character of police work. See 840 CMR 15.03 (3). The retirement board argued that it properly excluded hazardous duty pay because regular compensation is “received exclusively as wages…for services performed in the course of employment.” See M.G.L. Ch. 32, § 1, 840 CMR 15.03 (3). The retirement board argued that hazardous duty pay is not regular compensation because it is not for any additional service outside employees’ regular duties of being a police officer, despite having its own pay code, line on the pay check, and provision in the collective-bargaining agreement.
The Division of Administrative Law Appeals (DALA) agreed with McLeod that hazardous duty pay is regular compensation. It found that hazardous duty pay “obviously” satisfied the regulatory requirements for regular compensation:
- It was disbursed once every pay period;
- Its amount was predetermined and unvarying throughout each fiscal year;
- It was not in any way extraordinary, adventitious, or ad hoc;
- It did not depend on any discretion or contingency; and
- It was available to all similarly situated employees.
DALA also rejected the retirement board’s position that hazardous duty pay is not regular compensation because it is a separately negotiated item, not part of officers’ contractual base pay. It credited the testimony of Lieutenant Evan Tuxbury, president of MassCOP Local 479, who explained that it is common practice in bargaining for municipal employers to agree to pay increases based on the specific features of work certain unions perform (e.g. hazardous duty pay for police officers), instead of including every pay increase in the contractual base pay. The full decision is available here.