Nguyen v. Arbella Insurance Group (Lawyers Weekly No. 11-064-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-834 Appeals Court VINCENT NGUYEN vs. ARBELLA INSURANCE GROUP.[1] No. 16-P-834. Middlesex. February 16, 2017. – May 23, 2017. Present: Kafker, C.J., Wolohojian, & Sacks, JJ. Insurance, Insurer’s obligation to defend, Defense of proceedings against insured, Homeowner’s insurance, Business exclusion. Contract, Insurance. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on April 11, 2014. The case was heard by Bruce R. Henry, J., on motions for summary judgment, and a motion for reconsideration was considered by him. Joseph A. Padolsky for the plaintiff. Roberta R. Fitzpatrick (Kathryn Annbinder Covarrubias also present) for the defendant. SACKS, J. The plaintiff, Vincent Nguyen, having been sued in Federal court on various tort, civil rights, and other theories by a former fellow employee of the Newton police department, requested that the defendant, Arbella Insurance Group (Arbella), as issuer of his homeowner’s insurance policy, provide him a defense. After Arbella declined, citing the policy’s “business pursuits” exclusion, Nguyen filed a Superior Court action seeking a declaration that Arbella was obligated to provide him a defense. On cross motions for summary judgment, a judge agreed with Arbella that the “business pursuits” exclusion applied. Nguyen appealed the resulting judgment in Arbella’s favor and the order denying his motion for reconsideration. We affirm. Background. a. The underlying suit. In the underlying Federal action, the plaintiff, Jeanne Sweeney Mooney, alleged that at all relevant times she was an employee of the Newton police department and most recently worked as the executive administrator for the chief of police. The defendants were the city of Newton, its mayor in his official capacity, and the then-chief of police, a police lieutenant, and Nguyen (a civilian employee in the chief’s office), all in their individual capacities. Mooney alleged that the chief, the lieutenant, and Nguyen conspired to coerce her into accepting additional duties in violation of a union contract, as retaliation for Mooney’s objecting to both the potential contract violation and the chief’s improperly obtaining an “exceptional service” pay raise. She also alleged that the chief and Nguyen, in order to obtain leverage over Mooney, conspired to stage a false “I-Team Investigation” by a television station regarding her use of her break time; the ruse relied on photographs that Nguyen took, during working hours, of […]
Rosado v. Commissioner of Correction, et al. (Lawyers Weekly No. 11-062-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-680 Appeals Court CHRISTIAN ROSADO vs. COMMISSIONER OF CORRECTION & another.[1] No. 16-P-680. Middlesex. February 7, 2017. – May 22, 2017. Present: Green, Meade, & Agnes, JJ. Imprisonment, Safe environment. Constitutional Law, Imprisonment. Administrative Law, Judicial review. Practice, Civil, Relief in the nature of certiorari, Motion to dismiss. Due Process of Law, Prison regulation. Libel and Slander. Civil action commenced in the Superior Court Department on May 11, 2015. A motion to dismiss was considered by Kenneth J. Fishman, J. Christian Rosado, pro se. Katherine W. Briggs for the defendants. GREEN, J. The pro se plaintiff, an inmate in the custody of the Department of Correction, appeals from a judgment of the Superior Court, dismissing his complaint against the defendants, the Commissioner of Correction and the chief of the office of investigative services (investigative services chief). In his complaint, the plaintiff asserted various claims stemming from the defendants’ designation of him as a member of the “Latin Kings,” a “security threat group” (STG). The plaintiff denies that he is a member of the Latin Kings, and that his false designation as such subjects him to various harms entitling him to relief. We agree with the judge that the plaintiff’s claim for certiorari relief, pursuant to G. L. c. 249, § 4, does not lie because the designation was a discretionary administrative decision rather than an adjudicatory or quasi adjudicatory one, and that his due process claim fails because his designation as a member of an STG does not infringe upon a protected liberty interest.[2] We accordingly affirm the judgment of dismissal. Background. “We review the allowance of a motion to dismiss de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), and cases cited. We may also consider exhibits attached to the complaint and items appearing in the record. Melia v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012), citing Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).” Lipsitt v. Plaud, 466 Mass. 240, 241 (2013). As we observed in the introduction, the plaintiff is an inmate in the custody of the Department of Correction.[3] In November, 2014, a search of his cell uncovered pictures of a number of […]
Categories: News Tags: 1106217, Commissioner, Correction, Lawyers, Rosado, Weekly
Schultz v. Tilley, et al. (Lawyers Weekly No. 11-061-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1706 Appeals Court EDITH SCHULTZ vs. CHRISTOPHER TILLEY & others.[1] No. 15-P-1706. Suffolk. December 15, 2016. – May 18, 2017. Present: Cypher, Maldonado, & Blake, JJ.[2] Dog. Insurance, Coverage, Homeowner’s insurance, Misrepresentation. Civil action commenced in the Superior Court Department on July 30, 2013. The case was heard by Heidi E. Brieger, J., and entry of separate and final judgment was ordered by her. James T. Scamby for the plaintiff. Jeffrey T. Scuteri for Christopher Tilley & another. Peter C. Kober for Vermont Mutual Insurance Company. BLAKE, J. The insureds, Angela Tilley and Christopher Tilley,[3] owned a dog that caused property damage and injury to the plaintiff, Edith Schultz. Schultz filed suit against the Tilleys and the defendant, Vermont Mutual Insurance Company (Vermont Mutual). Vermont Mutual counterclaimed and cross-claimed, seeking a declaration that the homeowner’s policy at issue was void as a result of the insureds’ material misrepresentations on their application for insurance as to the dog’s bite history and their history of loss. Following a bench trial on the issue of coverage only, a judge of the Superior Court agreed with Vermont Mutual on the bite history issue, and accordingly dismissed Schultz’s complaint against Vermont Mutual. The Tilleys and Schultz (collectively, the appellants) now jointly appeal. Background. We summarize the facts as found by the judge, supplemented by undisputed information from the record, with certain facts reserved for later discussion. On December 30, 2010, Christopher visited the Tarpey Insurance Group (Tarpey) in Peabody for the purpose of obtaining homeowner’s insurance for his residence in Peabody. With the assistance of Elaine Faithful, one of Tarpey’s customer service representatives, Christopher completed an application for insurance with Vermont Mutual. On the application, Christopher responded “Yes” to the question, “Are there any animals or exotic pets kept on premises?” As a follow-up, the application states, in parentheses, “Note breed and bite history.” Under the “Remarks” section of the application, Faithful noted, “American bull dog — no biting incidents.” Another section of the application was entitled “Loss History” and asked, “Any losses, whether or not paid by insurance, during the last 6 years, at this or at any other location?” Christopher responded “No” and placed his initials adjacent to his response. At the bottom of the application, just above the signature […]
Merrimack College v. KPMG LLP (Lawyers Weekly No. 12-054-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV02098-BLS2 ____________________ MERRIMACK COLLEGE v. KPMG LLP ____________________ MEMORANDUM AND ORDER ALLOWING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Merrimack College incurred substantial financial losses because its former financial aid director, Christine Mordach, deliberately approved fake Perkins loans for many students without their knowledge.1 For years Mordach awarded far more financial aid than she was authorized to spend. She made the college’s financial aid budget appear balanced by replacing grants and scholarships with fake Perkins loans, the proceeds of which were used to pay tuition owed to Merrimack. Ms. Mordach pleaded guilty to federal criminal charges of mail and wire fraud. Merrimack seeks to recover its losses from its former auditor, KPMG LLP. Merrimack claims that KPMG noticed but did not follow up on discrepancies in some student loan accounting and deficiencies in internal controls for such loans, and as a result failed to discover Mordach’s fraud. Merrimack asserts that KPMG was negligent, breached its contract, and violated G.L. c. 93A. KPMG has moved for summary judgment on several grounds, including that Merrimack’s claims are barred under the equitable doctrine known as in pari delicto because Mordach committed fraud to benefit her employer and her deliberate wrongdoing on behalf of Merrimack was far worse than KPMG’s alleged negligence. The Court agrees that, in light of the undisputed material facts, Merrimack’s claims are barred by the in pari delicto doctrine. Under these circumstances, Merrimack is legally responsible for Mordach’s misconduct. Merrimack is also 1 The Perkins Loan program provides “low-interest loans to financially needy students” at institutions of higher education that are funded with federal monies, matching contributions by each participating school, and repayment of prior loans. De La Mota v. United States Dept. of Educ., 412 F.3d 71, 74 (2d Cir. 2005). “The schools independently determine eligibility, advance funds, collect payments[,] and make decisions concerning loan forgiveness.” Id.; see also 20 U.S.C. §§ 1070 et seq. – 2 – bound by the allegations in its complaint that Mordach engaged in intentional fraud. That deliberate misconduct by Merrimack’s employee was far more serious than KPMG’s purported negligence. Finally, the Court is not persuaded that Massachusetts should recognize, on public policy grounds, an exception to this doctrine for claims against an allegedly negligent outside auditor. The Court will therefore allow KPMG’s motion and dismiss this action. 1. Legal Background. “The doctrine of in pari delicto bars a plaintiff who has participated in wrongdoing from recovering damages for any loss resulting from the wrongdoing.” Choquette v. Isacoff, 65 Mass. App. Ct. 1, 3 (2005). It reflects an equitable and policy judgment that courts should “not lend aid to parties who base their cause of action on their own […]
Commonwealth v. Montrond (Lawyers Weekly No. 10-081-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10834 COMMONWEALTH vs. AMARAL MONTROND. Plymouth. February 14, 2017. – May 17, 2017. Present: Gants, C.J., Lenk, Hines, Lowy, & Budd, JJ. Homicide. Constitutional Law, Assistance of counsel, Confrontation of witnesses. Intoxication. Evidence, Intoxication, Prior misconduct, Relevancy and materiality, Expert opinion. Witness, Expert. Practice, Criminal, Capital case, Assistance of counsel, Confrontation of witnesses. Indictments found and returned in the Superior Court Department on November 16, 2007. The cases were tried before Paul E. Troy, J.; a motion for a new trial, filed on July 12, 2012, and a motion for postconviction discovery, filed on May 2, 2013, were considered by him, and following remand by this court, the motion for a new trial was heard by Thomas F. McGuire, Jr., J. Leslie W. O’Brien for the defendant. Laurie Yeshulas, Assistant District Attorney, for the Commonwealth. LENK, J. The defendant appeals from his conviction of murder in the first degree[1] on a theory of deliberate premeditation in the shooting death of Carlita Chaney on August 16, 2007, and from the denial of his motion for a new trial. The defendant’s consolidated appeal from his convictions and from the denial of his motion for a new trial first came before this court in November, 2014, when, following oral argument, we stayed the appeal and remanded the matter to the Superior Court to conduct an evidentiary hearing concerning the defendant’s ineffective assistance of counsel claim and the location of certain telephone records. After that hearing, the defendant renewed his motion for a new trial, which the judge denied. On appeal, the defendant argues that his trial counsel was ineffective, and that his right of confrontation pursuant to the Sixth Amendment to the United States Constitution was violated by virtue of certain testimony from the Commonwealth’s medical examiner. He also contends that both motion judges erroneously denied his motion for a new trial. Finally, the defendant asks that we exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt. We conclude that there was no error requiring reversal, and discern no reason to exercise our extraordinary power under G. L. c. 278, § 33E. Accordingly, we affirm the convictions. Background. a. Facts. Based on the evidence at trial, the jury could have found the following. The defendant and the […]
Federal National Mortgage Association v. Gordon, et al. (Lawyers Weekly No. 11-060-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-441 Appeals Court FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. HEATHER GORDON & another.[1] No. 15-P-441. Suffolk. March 8, 2016. – May 17, 2017. Present: Hanlon, Sullivan, & Massing, JJ. Trespass. Real Property, Trespass, Mortgage, Lease. Mortgage, Foreclosure. Landlord and Tenant, Control of premises. Housing Court, Jurisdiction. Jurisdiction, Housing Court. Summary Process. Practice, Civil, Summary judgment, Summary process. Civil action commenced in the City of Boston Division of the Housing Court Department on June 24, 2013. The case was heard by MaryLou Muirhead, J., on a motion for summary judgment. Thomas B. Vawter for the defendants. Danielle C. Gaudreau (Thomas J. Santolucito also present) for the plaintiff. HANLON, J. The defendants in this trespass action, Heather Gordon and her granddaughter, Kaire Holman, challenge the validity of a judgment for possession entered by the Housing Court in favor of the plaintiff, the Federal National Mortgage Association (Fannie Mae), on its motion for summary judgment. Fannie Mae claims ownership, through foreclosure, of the residential condominium at issue, known as Unit 2 at 7 Valentine Street, in the Roxbury section of Boston (the property). Gordon claims that she and Holman occupy the property pursuant to a lease from Carolyn Grant, who held record title to the condominium as a joint tenant with Gilbert R. Emery prior to the foreclosure. The lease on which Gordon and Holman rely, however, is dated after both (i) the date of the foreclosure, and (ii) the date on which Fannie Mae began a summary process action against Emery, Grant, and another occupant[2] to obtain possession of the property. When Fannie Mae learned that Gordon and others had moved into the property as ostensible lessees, Fannie Mae brought a new action (separate from the summary process case) for common law trespass, which is the case now before us.[3] After review, we reverse the final judgment, holding as follows: (i) the Housing Court has jurisdiction pursuant to G. L. c. 185C, § 3, to hear trespass claims; (ii) the teaching of Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 288 (1992) (Dime Savings), with respect to whether G. L. c. 184, § 18, bars trespass actions by postforeclosure owners against tenants with actual possession, applies with equal force in the circumstances of this case; and (iii) the summary judgment record does […]
Benoit v. City of Boston (and a consolidated case) (Lawyers Weekly No. 10-080-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12204 BRIAN BENOIT vs. CITY OF BOSTON (and a consolidated case[1]). Suffolk. January 9, 2017. – May 16, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Workers’ Compensation Act, Compensation, Public employee, Decision of Industrial Accident Reviewing Board, Insurer. Public Employment, Suspension, Worker’s compensation. Municipal Corporations, Officers and employees. Civil action commenced in the Superior Court Department on November 24, 2014. A motion to dismiss was heard by Linda E. Giles, J. Civil action commenced in the Superior Court Department on November 3, 2015. A motion to dismiss was heard by Paul D. Wilson, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John M. Becker for the plaintiff. David Susich (Thomas A. Pagliarulo also present) for the defendant. LENK, J. On September 5, 2011, after working almost twenty years as an emergency medical technician and paramedic for the defendant city’s emergency medical services (EMS), the plaintiff suffered an incapacitating ankle injury while transporting a patient. Unable to work, he received workers’ compensation payments for almost one year pursuant to G. L. c. 152, the workers’ compensation act. Learning that the plaintiff had been indicted on October 31, 2012, on charges relating to misuse of controlled substances intended for EMS patients, the defendant suspended him indefinitely without pay pursuant to G. L. c. 268A, § 25 (suspension statute). After the defendant, a self-insured municipal employer, discontinued the plaintiff’s workers’ compensation payments, he took the matter to the Department of Industrial Accidents (DIA); the defendant was ordered to restore those payments. When the defendant did not comply with the DIA order, the plaintiff sought enforcement in the Superior Court pursuant to G. L. c. 152, § 12 (1). The defendant argued then, as now, that the provision of the suspension statute requiring that suspended public employees “shall not receive any compensation or salary during the period of suspension” prevails over the requirements of the worker’s compensation act, and that the DIA order requiring proscribed payments should accordingly not be enforced. A Superior Court judge agreed and dismissed the enforcement actions.[2] We conclude that workers’ compensation benefits are not “compensation” as defined in the suspension statute, because they are not payments made “in return for services rendered.” G. L. c. 268A, § 1 (a). The Superior Court actions brought by […]
Crowell v. Massachusetts Parole Board (Lawyers Weekly No. 10-078-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12203 RICHARD CROWELL vs. MASSACHUSETTS PAROLE BOARD. Suffolk. January 6, 2017. – May 15, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Parole. Practice, Criminal, Parole. Americans with Disabilities Act. Practice, Civil, Action in nature of certiorari, Motion to dismiss. Civil action commenced in the Superior Court Department on April 2, 2014. A motion to dismiss was heard by Raffi N. Yessayan, J., and a motion for reconsideration was considered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Tabitha Cohen (John D. Fitzpatrick also present) for the plaintiff. Todd M. Blume, Assistant Attorney General, for the defendant. James R. Pingeon, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief. BUDD, J. On April 2, 2014, the plaintiff, Richard Crowell, filed a complaint in the nature of certiorari in the Superior Court, alleging that, in denying his petition for parole, the Parole Board (board) had violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), and cognate State provisions, art. 114 of the Amendments to the Massachusetts Constitution and G. L. c. 93, § 103. A judge of that court allowed the board’s motion to dismiss and denied the plaintiff’s motion for reconsideration. We reverse and remand for further development of the record.[1] Further, we conclude that, contrary to the plaintiff’s assertion, his commuted life sentence remains a “life sentence” within the meaning of 120 Code Mass. Regs. § 301.01(5) (1997). Background. The limited record before us, presented in the form of exhibits to the plaintiff’s complaint, includes the following facts, which are undisputed by the parties. Prior parole proceedings. The plaintiff pleaded guilty to murder in the second degree in 1962 in connection with an armed robbery that resulted in a homicide.[2] He was sentenced to life imprisonment with the possibility of parole pursuant to G. L. c. 265, § 2.[3] In 1974 the plaintiff’s life sentence was commuted to one that was from “[thirty-six] years to life.” He was paroled in November, 1975. Between 1975 and 1990 the plaintiff was returned to custody on five occasions (1977, 1980, 1982, 1989, and 1990) for failing to adhere to his conditions of parole, including repeated problems with alcohol […]
Modica v. Sheriff of Suffolk County, et al. (Lawyers Weekly No. 10-079-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12201 GEORGE MODICA vs. SHERIFF OF SUFFOLK COUNTY & others.[1] Suffolk. January 5, 2017. – May 15, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Correction Officer. Words, “Bodily injury.” Civil action commenced in the Superior Court Department on October 24, 2014. The case was heard by Douglas H. Wilkins, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Noah A. Winkeller for the plaintiff. Allen H. Forbes, Special Assistant Attorney General, for the defendants. BUDD, J. Through G. L. c. 126, § 18A, and G. L. c. 30, § 58, the Legislature has afforded correction officers additional compensation to close the gap between workers’ compensation benefits and an employee’s salary if the employee sustains bodily injury as a result of inmate violence during the course of his or her duties. The plaintiff, George Modica, a correction officer in the Suffolk County Sheriff’s Department, sued the defendants — the sheriff of Suffolk County, the Suffolk County sheriff’s department, and the Commonwealth — to obtain compensation under the statutes. At issue in this case is the meaning of “bodily injury” as the term is used in the two statutes. We conclude that bodily injury is that which results in physical injury; because the defendant has not suffered such an injury, he does not qualify for compensation under the statute. Background. The pertinent facts, taken from the record, are undisputed. As a result of breaking up inmate fights in March and April of 2010, the plaintiff began to experience an accelerated heart rate (sinus tachycardia) accompanied by light-headedness and difficulty breathing. The defendants initially paid workers’ compensation benefits voluntarily but soon after discontinued them. The plaintiff filed a claim for further workers’ compensation benefits and, insofar as relevant here, the plaintiff underwent two independent medical examinations. Both doctors concurred that the defendant’s symptoms were a physiological response to stress, that the sinus tachycardia was neither the result nor the cause of any physical harm, and that there was no evidence of structural heart disease.[2] The parties eventually settled the plaintiff’s workers’ compensation claim, stipulating that the plaintiff’s injury was a physiological response to his involvement in inmate altercations. The plaintiff thereafter applied for […]
Commissioner of Administration and Finance v. Commonwealth Employment Relations Board, et al. (Lawyers Weekly No. 10-076-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12208 COMMISSIONER OF ADMINISTRATION AND FINANCE vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.[1] Suffolk. January 5, 2017. – May 12, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Commonwealth Employment Relations Board. Labor, Unfair labor practice, Duty to bargain. Commonwealth, Financial matters, Collective bargaining. Appeal from a decision of the Division of Labor Relations. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert L. Quinan, Jr., Assistant Attorney General, for the plaintiff. Jane Gabriel for the defendant. Alan H. Shapiro (John M. Becker also present) for the intervener. Mathew D. Jones, for Massachusetts Teachers Association, amicus curiae, submitted a brief. LOWY, J. In June, 2010, near the height of the global economic downturn that became known as the Great Recession, the Secretary of the Executive Office of Administration and Finance (Secretary) submitted to the Legislature a request for an appropriation to fund collective bargaining agreements between the Commonwealth and two public employee unions reached more than thirteen months earlier. In the letter containing the request, the Secretary informed the Legislature that several similar requests for salary increases had been rejected by the Legislature; that attempts to renegotiate the agreements with the unions had failed; and that approval of the request would require renegotiating several other collective bargaining agreements that the Legislature had already approved. The unions both filed a charge of prohibited practice with the Department of Labor Relations (department), arguing, in essence, that the letter was a violation of the Commonwealth’s purported duty to support an appropriation’s request pursuant to G. L. c. 150E, § 7 (b), and also that the letter constituted a failure to bargain in good faith, in violation of G. L. c. 150E, § 10 (a) (5). In January, 2014, a hearing officer with the department agreed with the unions and found that the Commonwealth had violated its § 7 (b) duty and had committed a prohibited practice under § 10 (a) (5) by failing to bargain in good faith. The Commonwealth Employment Relations Board (board)[2] affirmed, the Commonwealth appealed from the decision, and we transferred the case to this court on our own motion. We reverse the board’s decision and conclude that the Secretary’s inclusion of information about the anticipated fiscal effects of a legislative decision to fund […]
Categories: News Tags: 1007617, Administration, Board, Commissioner, Commonwealth, employment, Finance, Lawyers, Relations, Weekly