Posts tagged "Board"

Vilbon v. Board of Registration in Nursing (Lawyers Weekly No. 10-065-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12359   CARLINE VILBON  vs.  BOARD OF REGISTRATION IN NURSING.     April 18, 2018.     Board of Registration in Nursing.  Nurse.  License.  Moot Question.  Supreme Judicial Court, Superintendence of inferior courts.     Carline Vilbon appeals from a judgment of the county court dismissing as moot her appeal under G. L. c. 112, § 64, from an order of the Board of Registration in Nursing (board) indefinitely suspending her nursing license.  The grounds for the suspension were that Vilbon had not satisfied the educational requirements for licensure in Massachusetts and that she had engaged in deceptive conduct to obtain a license.  While the matter was pending before the single justice, the board reconsidered and withdrew its finding that Vilbon had engaged in deceptive conduct, acknowledging that it had erred in making this finding.  In addition, Vilbon remedied the deficiencies in her education.  The board therefore reinstated her license.  Vilbon now argues that, despite the reinstatement of her license, she has suffered further harm for which the board should compensate her and that sanctions should be imposed on the executive director of the board.  However, under the “plain and unambiguous language of G. L. c. 112, § 64,” Hoffer v. Board of Reg. in Medicine, 461 Mass. 451, 456 (2012), our authority is limited to “revising or reversing the decision of the board” suspending her license.  The statute does not provide for any further relief.  As Vilbon has received all the relief that is available under G. L. c. 112, § 64, the single justice properly dismissed the matter as moot.  See Padmanabhan v. Centers for Medicare & Medicaid Servs., 476 Mass. 1018, 1019 (2017), citing Rasten v. Northeastern Univ., 432 Mass. 1003, 1003 (2000).   Judgment affirmed.     Carline Vilbon, pro se. Carrie Benedon, Assistant Attorney General, for the defendant.   Full-text Opinions

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Posted by Massachusetts Legal Resources - April 18, 2018 at 7:50 pm

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Boelter, et al. v. Board of Selectmen of Wayland (Lawyers Weekly No. 10-050-18)

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-12353   MARY ALICE BOELTER & others[1]  vs.  BOARD OF SELECTMEN OF WAYLAND.       Middlesex.     December 5, 2017. – April 5, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Open Meeting Law.  Municipal Corporations, Open meetings, Selectmen.  Moot Question.  Attorney General.       Civil action commenced in the Superior Court Department on February 11, 2014.   The case was heard by Dennis J. Curran, J., on motions for summary judgment.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Mark J. Lanza, Special Town Counsel, for the defendant. David S. Mackey, Special Assistant Attorney General (Christine M. Zaleski also present) for Massachusetts Gaming Commission. George H. Harris for the plaintiffs. The following submitted briefs for amici curiae: Maura Healey, Attorney General, & Jonathan Sclarsic & Kevin W. Manganaro, Assistant Attorneys General, for the Attorney General. Robert J. Ambrogi & Peter J. Caruso for Massachusetts Newspaper Publishers Association. Kenneth S. Leonetti, Christopher E. Hart, Michael Hoven, & Kelly Caiazzo for Hal Abrams & others.     LENK, J.  The plaintiffs, all registered voters in the town of Wayland (town), brought this action in the Superior Court to challenge the procedure by which the board of selectmen of Wayland (board) conducted the 2012 performance review of the town administrator.  The chair of the board had circulated to all board members, in advance of the public meeting where the town administrator’s evaluation was to take place, board members’ individual written evaluations, as well as a composite written evaluation, of the town administrator’s performance.  The board made public all written evaluations after the open meeting.  The issue before us is whether the board violated the Massachusetts open meeting law, G. L. c. 30A, §§ 18 and 20 (a), which generally requires public bodies to make their meetings, including “deliberations,” open to the public. A judge of the Superior Court allowed the plaintiffs’ motion for summary judgment, issued a permanent injunction, and declared “stricken” a contrary determination by the Attorney General that had issued the prior year, on essentially the same facts, in which the Attorney General had found that the board’s conduct had not violated the open meeting law.  The board appealed from the allowance of summary judgment, arguing that the matter is moot, its conduct did not violate the […]

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Posted by Massachusetts Legal Resources - April 5, 2018 at 5:00 pm

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Bruno, et al. v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 11-032-18)

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   17-P-174                                        Appeals Court   WILLIAM A. BRUNO, trustee,[1] & another[2]  vs.  ZONING BOARD OF APPEALS OF TISBURY & others.[3]     No. 17-P-174.   Suffolk.     November 9, 2017. – March 19, 2018.   Present:  Meade, Shin, & Ditkoff, JJ.     Subdivision Control, Approval not required, Zoning requirements.  Zoning, Enforcement, Nonconforming use or structure.  Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations.  Limitations, Statute of.       Civil action commenced in the Land Court Department on May 2, 2014.   The case was heard by Gordon H. Piper, J., on motions for summary judgment.     Douglas A. Troyer for the plaintiffs. Howard M. Miller for Samuel Goethals & another. Jonathan M. Silverstein for Zoning Board of Appeals of Tisbury.     DITKOFF, J.  The plaintiffs, William A. Bruno and Lynne Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty Trust (Brunos), appeal from a Land Court judgment upholding the denial by the zoning board of appeals of Tisbury (board) of the Brunos’ request to enforce the zoning law against the defendants, Samuel Goethals and Mary Goethals, as trustees of the Goethals Family Trust (Goethals).  The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot.  We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan.  As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board. Background.  The Goethals and Brunos separately own adjoining real property parcels, held in trust, located on Goethals Way in the town of Tisbury.  The Goethals’ property (Lot 1) and the Brunos’ property (Lot 2) formerly comprised a single parcel (original lot), first purchased by the Goethals family in or around the 1930’s.  The original lot contained a single-family dwelling when the Goethals purchased it, and they added a separate garage sometime prior to 1960. In 1978, the planning board of Tisbury […]

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Posted by Massachusetts Legal Resources - March 20, 2018 at 12:17 am

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Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-027-18)

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-12331   PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]       Suffolk.     November 6, 2017. – February 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Public Employee Retirement Administration Commission.  Contributory Retirement Appeal Board.  Retirement.  Public Employment, Retirement, Sick leave benefits, Vacation pay, Worker’s compensation.  Words, “Regular compensation.”       Civil action commenced in the Superior Court Department on May 14, 2015.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Judith A. Corrigan, Special Assistant Attorney General, for the plaintiff. Michael Sacco for retirement board of Swampscott.          CYPHER, J.  The plaintiff, the Public Employee Retirement Administration Commission (PERAC), appeals from a Superior Court judge’s decision affirming a determination by the Contributory Retirement Appeal Board (CRAB) that sick or vacation payments, when used to supplement workers’ compensation payments, are not “regular compensation” as defined in G. L. c. 32, § 1.  PERAC argues that CRAB’s decision is incorrect as a matter of law.  We disagree, and for the following reasons we affirm the decision of the Superior Court judge. Background.  The relevant facts are not in dispute.  From September 30, 1985, to July 7, 2012, Robert Vernava worked for the town of Swampscott’s department of public works.  On June 13, 2010, Vernava sustained injuries while performing job-related duties.  He began receiving workers’ compensation benefits the same day.  In addition to the workers’ compensation benefits, under G. L. c. 152, § 69, Vernava also received two hours per week of sick or vacation pay (supplemental pay) in order to maintain his union membership and life insurance.[2] Pursuant to G. L. c. 32, § 7, on February 1, 2012, the town of Swampscott filed an application seeking to retire Vernava involuntarily for accidental disability.  On June 28, 2012, the retirement board of Swampscott (board) approved the application and voted to involuntarily retire Vernava due to accidental disability.  Vernava received his workers’ compensation benefits and supplemental pay until July 7, 2012. Under G. L. c. 32, § 7 (2), the effective date of an employee’s accidental disability retirement is the latest of the following:  (1) “the date the injury was sustained;” (2) “the date […]

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Posted by Massachusetts Legal Resources - February 13, 2018 at 9:00 pm

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Roma, III, Ltd. v. Board of Appeals of Rockport (Lawyers Weekly No. 10-002-18)

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-12278   ROMA, III, LTD.  vs.  BOARD OF APPEALS OF ROCKPORT.       Suffolk.     September 6, 2017. – January 8, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.     Municipal Corporations, By-laws and ordinances.  Zoning, Validity of by-law or ordinance, Private landing area.  Federal Preemption.       Civil action commenced in the Land Court Department on March 12, 2015.   The case was heard by Robert B. Foster, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Jackie Cowin for the defendant. Nicholas Preston Shapiro (Robert K. Hopkins also present) for the plaintiff. Maura Healy, Attorney General, & Elizabeth N. Dewar, State Solicitor, for division of aeronautics of the Department of Transportation, amicus curiae, submitted a brief.     GANTS, C.J.  A judge of the Land Court barred the town of Rockport (town) from enforcing a zoning bylaw that prohibited the use of land for a private heliport without some form of approval, variance, or special permit because the bylaw had not been approved by the division of aeronautics of the Department of Transportation (division).  The issue on appeal is whether cities and towns may exercise their zoning authority to determine whether land in their communities may be used as a noncommercial private restricted landing area, here a heliport, or whether they may do so only with the approval of the division because the exercise of such zoning authority is preempted by the State’s aeronautics statutes, G. L. c. 90, §§ 35-52 (aeronautics code).  We hold that there is no clear legislative intent to preempt local zoning enactments with respect to noncommercial private restricted landing areas, and that a city or town does not need the prior approval of the division to enforce a zoning bylaw that requires some form of approval, variance, or special permit for land to be used as a private heliport.[1] Background.  Roma, III, Ltd. (plaintiff), is the owner of 1.62 acres of oceanfront property in Rockport (property).  The property, improved by a single-family residence, is located in what is classified as a residential A zoning district. Ron Roma (Roma) is licensed as a helicopter pilot and regularly uses the helicopter he owns to travel to his various family homes, business engagements, and other activities.  Roma does not operate his helicopter for […]

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Posted by Massachusetts Legal Resources - January 9, 2018 at 4:37 pm

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Board of Selectmen of the Town of Hull, et al. v. Healey (Lawyers Weekly No. 09-054-17)

1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 15-00161 BOARD OF SELECTMEN OF THE TOWN OF HULL & THE TOWN MANAGER OF THE TOWN OF HULL vs. MAURA HEALEY, ATTORNEY GENERAL MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS In this action, plaintiffs Board of Selectmen of the Board of Hull and the Board Manager of the Board of Hull (collectively “the Board”) seek certiorari review under G. L. c. 249, §4, of a decision made by defendant Attorney General, Maura Healey (“the Attorney General”) that the Board violated Opening Meeting Law, G. L. c. 30A, §21(b)(3), by failing to publicly identify unions in collective bargaining disputes and a claimant in a matter in civil litigation prior to entering executive session to discuss strategy with respect to these matters. Before the Court are cross-motions for judgment on the pleadings. The Board seeks an order reversing the Attorney General’s decision and for declaratory relief, and the Attorney General seeks affirmation of her determination. In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, the Board’s motion for judgment on the pleadings is ALLOWED, the Attorney General’s cross-motion for judgment on the pleadings is DENIED, the Attorney General’s order that the Board amend its minutes reflecting the meetings in dispute is VACATED, and this matter is REMANDED to the Attorney General for further review consistent with this decision. The Town’s motion for further declaratory relief is DENIED. 2 FACTS Claims for judicial review of administrative agency proceedings are resolved through motions for judgment on the pleadings under Mass. R. Civ. P. 12(c). See Massachusetts Superior Court Standing Order 1-96, §4. The Court’s “review shall be confined to the record.” Id. at §5. “Such record ‘shall consist of … the entire proceedings.’” Id. at §2, quoting G. L. c. 30A, §14. The record in this case, and the relevant law, show the following. Plaintiff Board is a public body, and plaintiff Town Manager of the Town of Hull is the Chief Administrative Officer of the Town of Hull. Defendant Maura Healey is the Attorney General of the Commonwealth of Massachusetts. The Open Meeting Law, G. L. c. 30A, §§18-25 (“OML”), requires that, “[e]xcept as provided in section 21, all meetings of a public body shall be open to the public.” G.L. c. 30A, §20(a). Section 21 of the OML allows “[a] public body [to] meet in executive session” for an enumerated purpose, which includes “[t]o discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.” G. […]

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Posted by Massachusetts Legal Resources - December 22, 2017 at 7:17 pm

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Dell’Isola v. State Board of Retirement, et al. (Lawyers Weekly No. 11-154-17)

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-963                                        Appeals Court   MICHAEL DELL’ISOLA  vs.  STATE BOARD OF RETIREMENT another[1].     No. 16-P-963.   Suffolk.     September 8, 2017. – December 15, 2017.   Present:  Rubin, Neyman, & Henry, JJ.     Retirement.  Public Employment, Forfeiture of pension.  Correction Officer.       Civil action commenced in the Superior Court Department on December 31, 2014.   The case was heard by Linda E. Giles, J., on motions for judgment on the pleadings.     David R. Marks, Assistant Attorney General, for State Board of Retirement. Nicholas Poser for the plaintiff.     HENRY, J.  Michael Dell’Isola was a correction officer when he committed the crime of possession of cocaine.  The State Retirement Board (board) subsequently conducted a hearing and made factual findings that Dell’Isola came into possession of the cocaine only as a result of an arrangement with an inmate who had been in his custody and who at the time remained in the custody of the Middlesex County sheriff’s office.  This case thus requires us to consider whether, pursuant to G. L. c. 32, § 15(4), Dell’Isola’s conviction requires forfeiture of his retirement allowance.[2]  General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n no event shall any member [of the State employees’ retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.”  Because how Dell’Isola came into possession of the cocaine was factually linked to his position as a correction officer, we hold that his criminal offense falls within the purview of § 15(4) and he is ineligible to receive a retirement allowance. Background.  In September, 2012, a jury convicted Dell’Isola of one charge of possession of cocaine.  The board later held a hearing regarding Dell’Isola’s application for a superannuation allowance.  The board made the following findings of fact based on an evidentiary hearing and largely based on a transcript of Dell’Isola’s own statements during a postarrest interview with the State police. In 2011, Dell’Isola was a sergeant and a senior correction officer with the Middlesex County sheriff’s office, having served in the office since 1982.  An inmate under Dell’Isola’s supervision at the Middlesex County jail in Cambridge, identified only as “George,” offered Dell’Isola “a large amount of cash” and told Dell’Isola to contact George’s mother.[3]  Dell’Isola met with […]

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Posted by Massachusetts Legal Resources - December 15, 2017 at 10:42 pm

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State Board of Retirement v. O’Hare, et al. (Lawyers Weekly No. 11-155-17)

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-965                                        Appeals Court   STATE BOARD OF RETIREMENT  vs.  BRIAN O’HARE & another.[1]     No. 16-P-965.   Suffolk.     September 8, 2017. – December 15, 2017.   Present:  Rubin, Neyman, & Henry, JJ.     Retirement.  Public Employment, Forfeiture of pension, Police.  Police, Regulations.  Police Officer.  State Police.       Civil action commenced in the Superior Court Department on January 29, 2015.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings.     David R. Marks, Assistant Attorney General, for State Board of Retirement. Eric B. Tennen for Brian O’Hare.     HENRY, J.  Brian O’Hare was a sergeant with the Massachusetts State police when he committed the Federal crime of using the internet to entice a person under eighteen to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty.  This case presents the question whether the State Board of Retirement (board) correctly ordered forfeiture of O’Hare’s retirement allowance under G. L. c. 32, § 15(4).[2]  General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n no event shall any member [of the State employees’ retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.”  Because we hold that O’Hare’s actions had a direct legal link to his position with the State police, we conclude that O’Hare’s conviction required forfeiture pursuant to § 15(4). Background.  Brian O’Hare served with the Massachusetts State police for twenty years and, in 2006, held the rank of sergeant and was a patrol supervisor and shift commander.  Between August, 2005, and February, 2006, O’Hare communicated online with an individual whom he believed to be a fourteen year old boy.  O’Hare used a family computer while off duty to communicate with the “youth.”  The youth was later revealed to be an undercover Federal Bureau of Investigation (FBI) agent. In February, 2006, O’Hare was arrested by the FBI after arriving at a prearranged meeting place to meet the youth for sexual purposes.  In October, 2006, O’Hare resigned from the State police while under Federal indictment.  In February, 2007, O’Hare pleaded guilty to one charge of using the internet to attempt to coerce and entice a child under the age of eighteen to engage in unlawful sexual activity, […]

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Posted by Massachusetts Legal Resources - December 15, 2017 at 7:08 pm

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Worcester Regional Retirement Board v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-147-17)

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   17-P-66                                         Appeals Court   WORCESTER REGIONAL RETIREMENT BOARD  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]     No. 17-P-66.   Worcester.     October 11, 2017. – November 29, 2017.   Present:  Milkey, Massing, & Ditkoff, JJ.     Contributory Retirement Appeal Board.  County, Retirement board. Municipal Corporations, Retirement board, Pensions.  Public Employment, Retirement, Retirement benefits.  Retirement.  Pension.     Civil action commenced in the Superior Court Department on September 15, 2015.   The case was heard by Shannon Frison, J., on motions for judgment on the pleadings.     Michael Sacco for the plaintiff. Thomas F. Gibson for Middlesex County Retirement Board.     MASSING, J.  The Worcester Regional Retirement Board (WRRB) appeals from a judgment of the Superior Court, which affirmed a decision of the Contributory Retirement Appeal Board (CRAB) requiring the WRRB to permit a former member to purchase nine additional months of creditable service.[2]  At issue is whether the WRRB is responsible for not having enrolled the employee, Brian Pierce, as of the day he became eligible for membership, or whether Pierce had an affirmative obligation to ensure that he had been enrolled as of his start date.  CRAB determined that the responsibility lay with the WRRB, not the employee; that the retirement system records should be corrected to reflect Pierce’s nine months of uncredited membership; and that Pierce should be permitted to buy back the time of which he had erroneously been deprived.  Discerning no legal error or abuse of discretion on CRAB’s part, we affirm. Background.  Pierce began permanent, full-time employment as a third-class lineman for the Princeton Municipal Light Department, which is a member unit of the Worcester Regional Retirement System (WRRS), on December 6, 1982.  On October 24, 1983, Pierce completed a new entrant enrollment form “[i]n order that [he] may be properly enrolled” in the WRRS.[3]  The WRRB stamped the form as received on November 18, 1983.  The form correctly indicated that Pierce’s full-time permanent employment had begun on December 6, 1982.  The WRRB enrolled Pierce as a member as of September 1, 1983, crediting him with service prior to its receipt of his enrollment form, but not for the first nine months of his employment starting on December 6, 1982. Pierce’s service with the town of Princeton ended on May 1, 1986, when he took a similar position with the Middleborough Light Department. […]

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Posted by Massachusetts Legal Resources - November 29, 2017 at 4:44 pm

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Anne Gamble Ten Taxpayer Group, et al. v. Health Facilities Appeals Board, et al. (Lawyers Weekly No. 09-031-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-3545-BLS2 ANNE GAMBLE TEN TAXPAYER GROUP, consisting of GUSTAVE H. MURBY, ANNE C. GAMBLE, WALTER J. GAMBLE, STEPHEN GELLIS, M.D., LORING CONANT M.D., JR., CONANT LOUISE, BRIAN GREENBERG, PEGGY GREENBERG, KAREN D’AMATO, CHRISTINE BARENSFELD, JOHN W. HAGERMAN, ROBERT GAMBLE, SHIRLEY C. DUFF, JAMES K. DUFF, JAMES M. SMITH, and ELLEN K. ANDERSSON, Plaintiffs vs. HEALTH FACILITIES APPEALS BOARD, MONICA BHAREL, M.D., in her capacity as COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MARYLOU SUDDERS, in her capacity as SECRETARY OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, and CHILDREN’S HOSPITAL CORPORATION d/b/a CHILDREN’S HOSPITAL, Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS AND ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT This is one of several lawsuits filed by a group of plaintiffs unhappy with a decision by the defendant Boston Children’s Hospital (BCH) to eliminate the Prouty Garden as part of a modernization and expansion project. In the instant case, plaintiffs challenge the October 27, 2016 determination by the Commissioner of the Department of Public Health and the Public Health Council (collectively, the Department) to issue a Determination of Need in connection with that project. The Department’s decision is subject to judicial review pursuant to G.L.c. 30A §14 and G.L.c. 111 §25E. With the Administrative Record having been filed, this case is before this Court on Cross Motions for Judgment on the Pleadings, as required by Superior Court Standing Order 1-96. Plaintiffs also seek leave to amend their Complaint. This Court concludes 2 that the plaintiffs’ motions must be DENIED and the defendants’ Cross Motion must be ALLOWED, for reasons set forth herein. BACKGROUND Section 25C of Chapter 111 of the Massachusetts General Laws states that a health care institution contemplating a construction project that requires a “substantial capital expenditure” must first obtain a determination of need or “DoN” from the Department of Public Health (DPH). The purpose of the statute is to “control unnecessary expansion by health care institutions of their patient care facilities,” Howe v. Health Facilities Appeals Bd., 20 Mass.App.Ct. 531, 532 (1985), and to encourage the appropriate allocation of resources for health care purposes. Shoolman v. Health Facilities Appeals Bd., 404 Mass. 33, 36 (1989). In order to obtain a DoN, the health care institution must file an Application, which is reviewed for completeness and then forwarded for to the Public Health Council (PHC) and the Commissioner of DPH for their consideration. 105 C.M.R. §510-100.530.1 The Application is also subject to comments and a public hearing. G.L.c. 111 §25C, 105 C.M.R. §§100.400-100.410. The DoN Program Director prepares a staff report (the Staff Summary). 105 C.M.R. §§100.420-100.421. Upon consideration of the Application, the […]

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Posted by Massachusetts Legal Resources - November 3, 2017 at 2:37 pm

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