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HOUSE DOCKET, NO. 3205         FILED ON: 1/21/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2824

 

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Thomas A. Golden, Jr.

_______________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
              Court assembled:

              The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to civil process reform.

_______________

PETITION OF:

 

Name:

District/Address:

Thomas A. Golden, Jr.

16th Middlesex

David B. Sullivan

6th Bristol

Christopher G. Fallon

33rd Middlesex

Frank I. Smizik

15th Norfolk


HOUSE DOCKET, NO. 3205        FILED ON: 1/21/2011

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2824

By Mr. Golden of Lowell, a petition (accompanied by bill, House, No. 2824) of Thomas A. Golden, Jr. and others relative to reform of the civil process laws.  The Judiciary. 

 

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 3769 OF 2009-2010.]


The Commonwealth of Massachusetts
 

_______________

In the Year Two Thousand Eleven

_______________

 

An Act relative to civil process reform.
 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1. Section one of chapter thirty-two of the General Laws, as appearing in the 1998 Official Edition, is amended by adding at the end of the definition “Employee”, the following new text: — “as applied to persons whose regular compensation is paid from an account established by the sheriff’s process office pursuant to Chapter 37, section 23 for the sheriff’s process office, shall mean any person who is appointed by the sheriff as a deputy sheriff or employee of the sheriff’s process office and who is engaged in duties which require that his time be devoted to the  service of the sheriff’s process office in each year during the ordinary working hours of regular and permanent employees, and who is regularly and permanently employed in such service and receives a salary, hourly wage or regular compensation for assigned civil process duties as determined by each Sheriff.”

              SECTION 2. Section three of Chapter thirty-two of the General Laws, as appearing in the 1998 Official Edition, is amended by inserting in the fifth paragraph of subparagraph (g) of subsection (2), after the words “county correction facilities,” the following: — “and any deputy sheriff engaged in enforcement activities that involve the acts of arrest, eviction or seizure of property and who is defined by Section 4 of this Act as a full-time employee of the Sheriff.” 

              SECTION 3. Section 3 of Chapter 32 of the 1998 Official Edition is amended by inserting in subparagraph (b) of subsection (5), the following: -- “any deputy sheriff or employee of the sheriff’s process office, including any deputy sheriff or employee of the process office that has been transferred to the county or the Commonwealth, who is now a member or becomes a member of a system applicable to any governmental unit shall be given credit in such system for any service rendered by depositing in the annuity savings fund of such system such sums and under such conditions as are set forth under said section.”

              SECTION 4. Section two of Chapter thirty-two B of the General Laws, as appearing in the 1998 Official Edition, is amended by inserting in subsection (d), at the end of the definition of “Employee”, the following: —

              “Deputy sheriffs and other persons appointed by the sheriff, who devote twenty (20) or more hours per week to assigned duties, and who serve in the sheriff’s process office, shall be eligible for benefits under this chapter in the same manner, and to the same extent, any other county or state employee”.

              Section two of Chapter 32A is amended by inserting in line 7 of subsection (b), after the words “Worcester County”, the following: — “including, a deputy sheriff or employee of the sheriff’s process office who is otherwise eligible under this subsection.”

              And further, in Section 2 of Chapter thirty-two B is amended by inserting in subsection (d), at the end of the definition of “Employee”, the following: --

              “Deputy sheriffs and other persons appointed by the sheriff and who serve in the sheriff’s process office shall be eligible for benefits under this Chapter in the same manner, and to the same extent, as any other state employee.”

              SECTION 5. Sections 48 to 56 of Chapter 35 of the 1998 Official Edition shall not apply to deputies and employees of the sheriff’s process office in any county.

              SECTION 6.  Paragraph 3 of section 17 of Chapter 37 of the 1998 Official Edition is hereby repealed.

              SECTION 7. Chapter thirty-seven of the General Laws, as appearing in the 1998 Official Edition, is hereby amended by inserting after section 3 the following new section: —

              Section 3A. Sheriff’s Process Office.

              (A) The sheriff shall establish a process office, and shall assign deputies appointed pursuant to section three who, along with the sheriff, shall serve and execute within their counties, including within the political boundaries of the previously abolished county governments, and where the Commonwealth is a party or interested, all precepts lawfully issued to them, and all other process required by law to be served by an officer. They may serve process in cases wherein a county, city, town, parish, religious society, fire or other district is a party or interested, although they are inhabitants or members thereof. The sheriff may also appoint employees to work in the sheriff’s process office. All deputies and employees of the process office shall serve at the will and the pleasure of the sheriff.

              (B) Deputies and other employees of the process office, who devote twenty (20) or more hours per week to assigned duties, shall be county and/or state employees for the purposes of Chapters thirty-two, thirty-two A, thirty-two B, one hundred fifty-two, two hundred fifty-eight, two hundred sixty-eight A, and two hundred sixty-eight B, and shall be compensated in accordance with this subsection and subsection (C) of this section.

              (C) The sheriff shall determine the hours and duties of each deputy and employee of the process office, and shall determine the salary, hourly wage, or commission received by each deputy and employee of the process office, subject to the following limitations: —

              No sheriff, deputy or employee shall serve process for anyone except the Sheriff.

              No sheriff, deputy or employee shall be paid a commission or any portion of any fee, for service of process during hours for which the sheriff, deputy or employee is being compensated by federal, state, county or municipal funds;

              No sheriff, deputy or employee who receives a salary or hourly wage from the process office account shall also receive a commission or any portion of any fee for service of process;

              Full-time deputies and employees may receive only a salary or hourly wage, and shall at no time receive a commission, or any portion of any fee, for service of process;

              The annual salary, cumulative hourly wage, commissions, or the cumulative portion of any fees for service of process, of any individual deputy or employee shall not exceed the annual salary of the sheriff; and

              (D) Deputy sheriffs shall be sworn and shall complete a peace officers certification program, pursuant to a policy adopted by the Massachusetts Sheriffs’ Association through its education and training committee, within one year after receiving appointment, and shall be re-certified on a yearly basis.  Sworn deputy Sheriffs assigned to the full-time service of process on behalf of a Sheriff shall also be required to complete a training and orientation program on all requirements of lawful service of process as that program is constituted and conducted jointly by the Massachusetts Sheriffs’ Association and the Massachusetts Deputy Sheriffs’ Association.

              (E) All full time deputy sheriffs and employees of the sheriff’s process office, including those deputy sheriffs and employees of the sheriff ’s process office who have been transferred to the county or the Commonwealth, and who have gone beyond a one year probationary period of full time employment, will be granted under this subsection, without impairment, full benefits for vacation and sick time earned from their original commencement of employment in the sheriff’s process office, but not to exceed those of regular state employees.

              SECTION 8. Chapter thirty-seven of the General Laws, as appearing in the 1998 Official Edition, is hereby amended by inserting after section 3 the following new section: —

              Section 3B. Property Rights of Sheriffs, Deputy Sheriff and Employees.

              No sheriff, deputy or employee, nor any other individual, shall have or acquire any legal right whatsoever to the tangible or intangible property of the process office, nor any revenue derived from fees collected from the service of process of any proceeds from the sale of the property within the process office, other than compensation as determined under this chapter. All fees derived from service of process shall, except as otherwise provided in this chapter, be used solely for the operations of the process office, and all tangible and intangible property shall belong to the county or state and shall be under the sole possession and control of the sheriff.

              SECTION 9. Section eleven of Chapter thirty-seven of the General Laws, as appearing in the 1998 Official Edition, is hereby amended by striking out said section in its entirety and inserting in place thereof the following new text: —

              Section 11. Recording of Process.

              All process received for service by the sheriff’s process office shall, whenever such information becomes available be recorded onto a system established by the sheriff, which shall include but not be limited to the following information, to the extent available, for each piece of process to be served: --

              (a) the title of the action, including court name and docket number;

              (b) the date the process was issued or required to be served;

              (c) the type of process;

              (d) the name and address of the person requesting that process be served;

              (e) the name and address of the person or location upon which service is to be made;

              (f) the fee charged;

              (g) the date of billing to collect the fee;

              (h) the date of fee collected;

              (i) the date service was made;

              (j) the manner of service; and

              (k) the name of the person performing service.

              (B) A summary of the information contained in subsection (A) of this section shall be compiled by the sheriff on a yearly basis, and made available to the State Auditor for a yearly audit of the sheriff’s process office. Said audit, by the State Auditor, shall be forwarded as part of the annual report to be filed in accordance with Section 8A of Chapter 262.

              (C) Administrative costs associated with the recording of information prescribed under subsection (A) of this section, and prepared under subsection (B) of this section, including expenditures for personnel or the purchase of equipment required to perform the recording of information, may be paid from the process account or any other account established for the operation of the sheriff’s office.

              (D) Annual reports filed pursuant to subsection (B) of this section shall include but not be limited to complete, itemized schedules of the following information pertaining to the service of process: --

              assets, including cash, deposits, accounts receivable, and the value of the property 

              and equipment;

              (b) liabilities, including accounts payable, client escrow deposits, capital lease obligations, and all other debts;

              (c) income derived from the service of process and otherwise;

              (d) expenses paid, including payroll and all other expenses; and

              (e) with regard to the sheriff’s report, any surplus from the sheriff’s process account which has been transferred to an account established for any legal purpose or other statutory functions of the sheriff.

              SECTION 10. Section fourteen of Chapter thirty-seven of the General Laws, as appearing in the 1998 Official Edition, is hereby amended by striking out said section and inserting in place thereof the following new text: —

              Section 14. Service of Writs and Precepts after removal.

              Upon the removal of a deputy sheriff by the sheriff, the removed deputy shall immediately at the time of removal return to the sheriff’s process office all process and other documents received or in his possession, along with any fees collected. If there is any failure of a deputy or former deputy to comply with the terms of this section, the sheriff shall institute legal proceedings to enforce the terms of this section or any other section herein.

              SECTION 11. Chapter 37 of the 1998 Official Edition of the Massachusetts General Laws, is hereby amended by inserting after Section 22 the following new Section: —

              Section 23. Fees from Process Office.

              (A) Notwithstanding the provisions of Section 22 of this chapter or the provisions of Chapter 35, all fees and other revenues collected by the process office shall be deposited in an account established by the process office. The account shall be kept separate from any county, state or federal funds, and shall be used only for the operation of the process office. Expenditures shall be authorized by the sheriff, in accordance with the state guidelines, without the approval of any county commissioners, board or other appropriating authority.

              (B) Payroll and all other bills of the process office except administrative costs paid by the sheriff’s line item pursuant to subsection (D) of section 8 herein, shall be paid from the process account. However, after all civil process revenue has been expended for payroll and other bills of the civil process office, a sheriff may use funding from a Fiscal Year budgetary appropriation or a County Government Finance Review Board approved spending plan to pay payroll and all other civil process expenses.

              (C) Notwithstanding the provisions of subsection (A), contributions from paychecks issued to deputy sheriffs and employees of the sheriff’s process office who are members in service of the state or county retirement system, shall be deducted and forwarded to the state or county treasurer. The amounts deducted shall be determined in accordance with the provisions of Chapter 32 and any other rules and regulations promulgated there under.

              (D) Notwithstanding the provisions of subsection (A), premiums from paychecks of deputy sheriffs and employees of the sheriff’s process office who are insured under Chapter 32A or 32B shall be deducted and forwarded to the state or county treasurer. The amounts deducted shall be determined in accordance with the provisions of those chapters and any other rules and regulations promulgated there under.

              (E) Annually, on or before the 75th day after the close of the fiscal year, any excess revenue shall be carried over for process operations or transferred from the process account to an account established to fund statutory functions of the sheriff and annually on or before the 75th day after the close of the fiscal year, the sheriff shall render a sworn account thereof, to the state or county treasurer and in accordance with section 8A of Chapter 262.

              (F) Notwithstanding the provisions of subsection (A), the process office may maintain an account or accounts in a duly authorized financial institution, including funds for payment by the process office of fees and expenses in connection with service of process and for holding of funds paid over to the office as may be reasonably necessary in the ordinary course of business.

              (G) Notwithstanding the provisions of subsection (A), no monies held in any process account shall be used for payment of liability expenses incurred by the sheriff’s process office pursuant to Chapter 258, nor for payments to employees pursuant to Chapter 152. Any judgment, settlement or attorneys fees incurred as a result of litigation concerning the process office shall be paid in accordance with the provisions of Chapter 258, in the same manner as any other claim, judgment, settlement or attorneys fees paid by the sheriff's office.

              SECTION 12. Chapter 126 of the 1998 Official Edition is hereby amended by inserting after Section 18A the following new section: —

              Section 18B.  Injuries to Deputy Sheriffs and Employees of Sheriff’s Process Office.

              A deputy sheriff or other employee of a sheriff’s process office who, while in the performance of duty, receives bodily injuries resulting from acts of violence of defendants or others who are in any way connected with the proceeding for which service of process was attempted, shall be paid, in addition to the benefits of said Chapter 152, the difference between the weekly cash benefits to which he is entitled under said Chapter 152 and his regular salary, without such absence being charged against available sick leave credits, even if such absence may be for less than eight calendar days duration.

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