Posts tagged "Committee"

Committee for Public Counsel Services, et al. v. Attorney General of Massachusetts, et al. (Lawyers Weekly No. 10-051-18)

SUFFOLK, ss. COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY No. SJ-2017-347 COMMITTEE FOR PUBLIC COUNSEL SERVICES, HAMPDEN COUNTY LAWYERS FOR JUSTICE, INC., HERSCHELLE REAVES, and NICOLE WESTCOTT vs. ATTORNEY GENERAL of MASSACHUSETTS, DISTRICT ATTORNEY for BERKSHIRE COUNTY, DISTRICT ATTORNEY for BRISTOL COUNTY, DISTRICT ATTORNEY for the CAPE and ISLANDS, DISTRICT ATTORNEY for ESSEX COUNTY, DISTRICT ATTORNEY for HAMPDEN COUNTY, DISTRICT ATTORNEY for MIDDLESEX COUNTY, DISTRICT ATTORNEY for NORFOLK COUNTY, DISTRICT ATTORNEY for the NORTHWESTERN DISTRICT, DISTRICT ATTORNEY for PLYMOUTH COUNTY, DISTRICT ATTORNEY for SUFFOLK COUNTY, and DISTRICT ATTORNEY for WORCESTER COUNTY DECLARATORY JUDGMENT This matter came before the court, Gaziano, J., on a petition pursuant to G L. c. 211, § 3, seeking relief for defendants affected by the misconduct of state chemist Sonja Farak. As an initial matter, the respondents — the Attorney General and the offices of the Massachusetts District Attorneys — have agreed to vacate certain convictions obtained using drug certificates signed by Sonja Farak. The respondents have filed with the court, and served on the petitioners, formatted interim lists identifying the defendants and their convictions, delinquency or youthful offender adjudications, or other adverse dispositions that the respondents agree should be vacated and dismissed with prejudice. The convictions, adjudications, or other dispositions of those cases are addressed in this orcler. Final lists are to be provided by the respondents and filed with this court no later than April 30, 2018. Those lists may result in additional dismissals. Accordingly, it is ORDERED that the convictions of drug offenses under G. L. 94C that have been so identified by the respondents in the interim lists filed with this court on or before March 30,2018, shall be and are hereby VACATED AND DISMISSED WITH PREJUDICE, and any outstanding warrants associated with those convictions are recalled. The clerk shall provide copies of the formatted lists to the Judicial Information Services Department of the trial comi fmihwith in order to effectuate the dismissals. Entered: April 5, 2018 ~ Comi (Gaz.·ia./n.o, J.), fiJ1{y- , ‘\ (‘ – . f;} – /8 r. ;/ . I !f~{A /1 2~U lriaura S. Doy~~re~J I /~ ‘4 Full-text Opinions

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Posted by Massachusetts Legal Resources - April 6, 2018 at 12:09 am

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135 Wells Avenue, LLC v. Housing Appeals Committee, et al. (Lawyers Weekly No. 10-184-17)

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-12253   135 WELLS AVENUE, LLC  vs.  HOUSING APPEALS COMMITTEE & others.[1]       Suffolk.     April 6, 2017. – November 13, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2]     Municipal Corporations, Property, Use of municipal property.  Real Property, Deed, Restrictions.  Housing.  Zoning, Housing appeals committee, Low and moderate income housing, Board of appeals:  jurisdiction.  Permit.       Civil action commenced in the Land Court Department on January 14, 2016.   The case was heard by Robert B. Foster, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Daniel P. Dain for the plaintiff. Maura E. O’Keefe, Assistant City Solicitor (Jonah Temple, Assistant City Solicitor, also present) for zoning board of appeals of Newton & another. Pierce O. Cray, Assistant Attorney General, for Housing Appeals Committee. Paul E. Bouton, Stephen P. LaRose, & Christopher R. Minue, for Citizens’ Housing and Planning Association, amicus curiae, submitted a brief.     GAZIANO, J.  The plaintiff, 135 Wells Avenue, LLC (135 Wells), owns a 6.3-acre parcel of land in Newton (site), in an area known as Wells Avenue Office Park (property), which is zoned for limited manufacturing use.  As is all of the property, the site is subject to a restrictive covenant owned by the city of Newton (city); among other things, the city’s deed restriction permits only certain of the uses ordinarily allowed in a limited manufacturing zone, limits the size and setbacks of buildings, and requires that a certain portion of the land remain open space.  The city also owns an abutting 30.5-acre parcel with a deed restriction requiring that it be used only for conservation, parkland, or recreational use. 135 Wells seeks to construct a 334-unit residential rental unit complex on the site, with eighty-four of the units (twenty-five per cent) reserved as affordable housing, pursuant to G. L. c. 40B, §§ 20-23.  In order to proceed with development of the project, in May, 2014, 135 Wells asked the city’s board of aldermen (aldermen) to amend the deed restriction to allow a residential use at the site, and to permit construction in the nonbuild zone; the aldermen declined to modify the deed restriction.  At the same time, 135 Wells applied to the city’s zoning board of appeals (ZBA)[3] for a comprehensive permit to develop the mixed-income project.  The […]

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Posted by Massachusetts Legal Resources - November 14, 2017 at 4:38 am

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Lawyers Committee for Civil Rights and Economic Justice v. Court Administrator of the Trial Court, et al. (Lawyers Weekly No. 10-176-17)

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-12379   LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE  vs.  court administrator of the Trial Court & others.[1]     November 6, 2017.     Moot Question.  Practice, Civil, Moot case.  Trial Court.  Public Records.     The Lawyers’ Committee for Civil Rights and Economic Justice (Lawyers’ Committee) appeals from a judgment of the county court dismissing as moot its petition seeking declaratory and injunctive relief requiring the respondents, who are the court administrator, office of court management, and executive office of the Trial Court, to produce certain records pursuant to the public records law.  G. L. c. 66, § 10.  We directed the parties to file memoranda addressing whether the single justice erred or abused his discretion in dismissing the case as moot.  After reviewing the parties’ submissions, we affirm the judgment.   The facts are not in dispute.  The Lawyers’ Committee requested that the respondents produce documents concerning the demographics of the security department of the Trial Court, by race and gender, and the department’s hiring and promotion practices.  The Lawyers’ Committee cited the public records law, G. L. c. 66, § 10, as the basis of its request.  In response, the respondents stated that “[a]s part of the [j]udicial branch of government, the Massachusetts Trial Court . . . is not subject to the [p]ublic [r]ecords [l]aw.[[2]] . . . Despite that exemption, we are considering your request and will respond appropriately in due course.”  The Lawyers’ Committee petitioned the supervisor of records for a determination that the requested records were public records under G. L. c. 66.  The supervisor of records responded that “[r]ecords in the custody of the [c]ourt are records of the judiciary and are outside the jurisdiction of the public records law.”  Some months later, having received no documents in response to its request, the Lawyers’ Committee filed its petition.  Thereafter, the court administrator wrote to the Lawyers’ Committee, stating that the Trial Court intended to collect responsive documents and produce them.[3]  The respondents did in fact voluntarily produce documents that were responsive to the Lawyers’ Committee’s request.   The respondents represent, as they did before the single justice, that they have produced all responsive documents in their possession, custody, or control that are not confidential or privileged.  The Lawyers’ Committee does not dispute this or claim that any documents are being wrongfully withheld.  There is nothing further that a court can order […]

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Posted by Massachusetts Legal Resources - November 6, 2017 at 9:21 pm

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Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)

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-12121   DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1]  vs.  ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT.       Suffolk.     November 9, 2016. – May 24, 2017.   Present:  Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.     Committee for Public Counsel Services.  District Court, Drug court session.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016.   The case was reported by Duffly, J.     Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, also present) for the plaintiffs. Bethany L. Stevens for the defendant.     HINES, J.  This matter is before us on a reservation and report, by a single justice of this court, of a petition for relief under G. L. c. 211, § 3.  The petition, brought by the Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services and the Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (collectively CPCS), sought an order affirming CPCS’s independent authority under G. L. c. 211D to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court).  The issue arose after the Acting First Justice of the Lowell District Court (Justice), citing the need for a “team” approach to cases in the drug Court, removed CPCS attorneys from drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court. The single justice, in her reservation and report, observed that “the matter raises some important legal questions that ought to be decided by the full court, concerning specialty courts in general and adult drug courts in particular, and the respective roles and responsibilities of judges, [CPCS], and individual defense attorneys.”  The issue highlights the tension that may arise between an attorney’s duty to zealously advocate for the rights of the drug court defendant and a drug court model that favors a collaborative and nonadversarial approach to supervision of the drug court defendant.  We recognize that the success of drug court outcomes depends in large part […]

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Posted by Massachusetts Legal Resources - May 24, 2017 at 7:41 pm

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Perullo v. Advisory Committee on Personnel Standards (Lawyers Weekly No. 10-064-17)

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   SJC-12095   RENEE PERULLO  vs.  ADVISORY COMMITTEE ON PERSONNEL STANDARDS.       Suffolk.     January 9, 2017. – April 24, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.[1]     Public Employment, Removal.  Trial Court.  District Court.  Due Process of Law, Employment, Termination of employment.       Civil action commenced in the Superior Court Department on January 12, 2015.   The case was heard by Elizabeth M. Fahey, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     John F. Tocci (Cary P. Gianoulis also present) for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for the defendant.     BOTSFORD, J.  In 2014, the clerk-magistrate of the Salem Division of the District Court Department (Salem District Court) removed the plaintiff, Renee Perullo, from her position as an assistant clerk-magistrate of that court.  Perullo’s removal followed a lengthy series of disciplinary reprimands and suspensions for misconduct that included abuse of leave time and other inappropriate behavior.  Perullo brought this action in the nature of certiorari in the Superior Court to challenge her removal, and contends that the decision to remove her exceeded the statutory authority of the clerk-magistrate, in any event was arbitrary or capricious, and also violated her constitutional guarantee of due process.  In ruling on cross motions for judgment on the pleadings, a Superior Court judge rejected Perullo’s contentions and upheld the removal decision.  Given Perullo’s history of misconduct, we agree that it was appropriate for the clerk-magistrate to factor in the whole of Perullo’s disciplinary record in deciding that removal was the appropriate level of discipline.  We affirm the judgment of the Superior Court. Background.[2]  Perullo began her employment with the Commonwealth’s trial court system in 1989.  At the time of her removal in June, 2014, Perullo served as an assistant clerk-magistrate of the Salem District Court.  According to § 2.000 of the Massachusetts Trial Court Personnel Policies and Procedures Manual (Jan. 7, 2013) (Manual), an assistant clerk is a “managerial employee.” Perullo maintained a clean disciplinary record until 2006.  Thereafter, she was disciplined numerous times by various District Court clerks.  As detailed below, Perullo’s disciplinary infractions generally fell into two categories — excessive absenteeism and inappropriate behavior. In February, 2006, Perullo agreed to a ten-day suspension without pay due to […]

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Posted by Massachusetts Legal Resources - April 24, 2017 at 4:59 pm

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Zoning Board of Appeals of Hanover v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-110-16)

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-893                                        Appeals Court   ZONING BOARD OF APPEALS OF HANOVER  vs.  HOUSING APPEALS COMMITTEE & another.[1]     No. 15-P-893.   Plymouth.     May 9, 2016. – August 29, 2016.   Present:  Agnes, Massing, & Kinder, JJ.     Housing.  Zoning, Housing appeals committee, Comprehensive permit, Low and moderate income housing.  Administrative Law, Agency’s interpretation of regulation, Regulations. Municipal Corporations, Fees.     Civil action commenced in the Superior Court Department on March 11, 2014.   The case was heard by William F. Sullivan, J., on a motion for judgment on the pleadings.     Jonathan D. Witten (Barbara M. Huggins with him) for the plaintiff. Paul N. Barbadoro for Hanover Woods, LLC. Bryan F. Bertram, Assistant Attorney General, for Housing Appeals Committee.     MASSING, J.  Defendant Hanover Woods, LLC (developer), filed an application with the plaintiff zoning board of appeals of Hanover (board) for a comprehensive permit to build a 152-unit mixed-income housing project.  Considering the board’s filing fee to be unreasonable, however, the developer paid only what it unilaterally determined to be a reasonable filing fee.  Deeming the application incomplete, the board did not accept it for filing.  By the time the developer paid the remainder of the fee, six weeks later, the town had qualified for a safe harbor under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), effectively giving the board unreviewable discretion to deny the developer’s permit. Nonetheless, the defendant Housing Appeals Committee (HAC) ultimately ordered the board to issue a comprehensive permit to the developer for a 200-unit project.  The board appeals from a judgment of the Superior Court affirming the HAC’s order.  Because we conclude that the HAC erred in determining that the developer’s application was complete on the date of its incomplete submission, rather than on the date the filing fee was paid in full, we reverse. Background.  On October 22, 2009, the developer filed an application for a comprehensive permit for a project to be called Woodland Village, consisting of 152 units to be offered for sale, as well as parking spaces and other site improvements on a twenty-four acre parcel of land in Hanover (town).  Thirty-eight of the units, or twenty-five percent, were designated to be affordable units.  Under the board’s fee schedule, the filing fee for a project of that size was $ 250 per housing unit, or $ 38,000. […]

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Posted by Massachusetts Legal Resources - August 29, 2016 at 3:17 pm

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Schubert v. Committee for Public Counsel Services (Lawyers Weekly No. 10-117-16)

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-12044   GREG T. SCHUBERT   vs.  COMMITTEE FOR PUBLIC COUNSEL SERVICES.     August 9, 2016.     Supreme Judicial Court, Superintendence of inferior courts.       The petitioner, attorney Greg T. Schubert, filed papers in the county court entitled “writ of mandamus” and “writ of certiorari” that a single justice treated as a petition pursuant to G. L. c. 211, § 3, and denied.  Schubert appeals, and we  affirm.   The matter stems from a billing dispute between Schubert and the respondent, the Committee for Public Counsel Services (CPCS).  Essentially, CPCS conducted an audit of bills that Schubert submitted for payment to CPCS in connection with legal services that he provided for an indigent defendant.  Pursuant to the CPCS Assigned Counsel Manual, certain administrative proceedings followed the audit, culminating in a hearing.  The hearing officer ultimately rendered a decision adverse to Schubert, after which Schubert filed two separate complaints in the Hampden County Superior Court:  one in the nature of certiorari (HDCV2013-00881) and one for a declaratory judgment (HDCV2014-00141).  CPCS filed a motion to dismiss in each action.  A judge denied the motion in the certiorari action because, at the hearing on the motion, CPCS agreed to give Schubert additional time to file a motion for judgment on the pleadings, as required by Superior Court Standing Order 1-96.  Schubert had not filed such a motion because he did not believe that the standing order applied to his case.  In the declaratory judgment action, the judge did allow CPCS’s motion to dismiss, on the bases that CPCS cannot be sued under G. L. c. 231A, § 2, for a declaratory judgment, and that the individual defendants named in that action were immune from suit.   Schubert then filed his pleadings in this court, which a single justice denied without a hearing.  After the single justice denied his request for relief, Schubert filed several motions to supplement his pleadings with additional documents, which the single justice treated as motions for reconsideration and denied.  Additionally, CPCS again moved to dismiss the certiorari action in the trial court, this time for failure to prosecute.  The motion was allowed.   It is incumbent on Schubert, as the petitioner, to demonstrate that “review of the trial court decision[s] cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.”  S.J.C. Rule 2:21 […]

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Posted by Massachusetts Legal Resources - August 9, 2016 at 3:50 pm

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Eisai, Inc., et al. v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-072-16)

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-680                                        Appeals Court   EISAI, INC., & others[1]  vs.  HOUSING APPEALS COMMITTEE & another.[2] No. 15-P-680. Suffolk.     March 8, 2016. – June 20, 2016.   Present:  Hanlon, Sullivan, & Massing, JJ. Housing.  Zoning, Housing appeals committee, Comprehensive permit, Person aggrieved.  Practice, Civil, Zoning appeal, Standing.     Civil action commenced in the Superior Court Department on March 11, 2014.   The case was heard by Edward P. Leibensperger, J., on motions for judgment on the pleadings.     Christopher Robertson (Jonathan D. Witten with him) for the plaintiffs. Suleyken D. Walker for Housing Appeals Committee. Kevin P. O’Flaherty for Hanover R.S. Limited Partnership.      MASSING, J.  This appeal concerns the standards that defendant housing appeals committee (HAC) applies when it reviews the decision of a local zoning board of appeals to deny an application under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), based on municipal planning concerns. The plaintiffs, owners and lessors of commercial and industrial properties neighboring the proposed housing development (hereinafter, abutters or, in context, interveners), appeal from a judgment of the Superior Court affirming the HAC’s decision directing the zoning board of appeals for the town of Andover (board) to issue a comprehensive permit to defendant Hanover R.S. Limited Partnership (developer).  The abutters claim that the HAC impermissibly applied a new standard, not contained in any statute, regulation, or previous HAC decision, in evaluating Andover’s municipal planning efforts.  In the alternative, they claim that the HAC erroneously applied the applicable standard.  The defendants, for their part, contend that the abutters lack standing to bring this appeal.  Concluding that the abutters have standing, we reach the merits and affirm the judgment of the Superior Court affirming the HAC’s decision. Background.  On August 19, 2011, the developer filed an application for a comprehensive permit to build a mixed income rental housing development to be known as the “Lodge at Andover” within an existing office and industrial park.  The proposed location for the residential development, 30 Shattuck Road, is mostly within Andover’s River Road industrial D district, a commercial and industrial area in the northernmost part of Andover, near the River Road exit of Interstate Route 93.[3]   Shattuck Road, a dead end, and Tech Drive, a small looping road off of Shattuck Road, make up the office and industrial park consisting of ten large businesses and one vacant lot:  the proposed […]

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Posted by Massachusetts Legal Resources - June 20, 2016 at 5:17 pm

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Groton-Dunstable Regional School Committee v. Groton-Dunstable Educators Association (Lawyers Weekly No. 11-075-15)

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   14-P-701                                        Appeals Court   GROTON-DUNSTABLE REGIONAL SCHOOL COMMITTEE  vs.  GROTON-DUNSTABLE EDUCATORS ASSOCIATION. No. 14-P-701. Middlesex.     March 9, 2015. – July 20, 2015.   Present:  Trainor, Wolohojian, & Carhart, JJ. School and School Committee, Professional teacher status, Termination of employment.  Education Reform Act.  Arbitration, Collective bargaining, School committee.  Public Employment, Collective bargaining, Termination.       Civil action commenced in the Superior Court Department on November 4, 2013.   The case was heard by Robert L. Ullmann, J., on a motion for judgment on the pleadings.     Laurie R. Houle for the defendant. Howard L. Greenspan for the plaintiff.     WOLOHOJIAN, J.  At issue is whether the defendant union is entitled on behalf of a terminated teacher to pursue arbitration under the provisions of its collective bargaining agreement, or whether it is instead required to pursue arbitration under G. L. c. 71, § 42, amended by St. 1993, c. 71, § 44.  Because we conclude that G. L. c. 71, § 42, provides the exclusive route to arbitrate the termination of a teacher with professional teacher status (previously known as tenure), we affirm the judgment resulting from the allowance of the plaintiff school committee’s motion for judgment on the pleadings. The school committee and the union entered into a collective bargaining agreement (CBA) that covered the period September 1, 2011, through August 31, 2014.  One article of the CBA governed the arbitration of grievances, and set out detailed procedures for such arbitration.  Another article of the CBA provided that teachers would not “be disciplined, reprimanded, reduced in rank or compensation, or deprived of any professional advantages or salary increase without just cause.” Melissa Pooler, a teacher with professional teacher status,[1] was terminated by the school committee on July 16, 2013.  After the union’s grievance on behalf of Pooler was denied,[2] the union claimed arbitration under the CBA.  The school committee responded by suing to stay arbitration pursuant to G. L. c. 150C, § 2.  The school committee’s motion for a preliminary injunction was allowed, as was its subsequent motion for judgment on the pleadings.  The latter is the subject of this appeal.[3] Section 42 of G. L. c. 71 provides, as pertinent here, that teachers with professional teacher status (such as Pooler) may seek to have an arbitrator review their termination in accordance with the procedures specified in the statute.  Section 42 also provides that such a teacher “shall not be dismissed […]

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Posted by Massachusetts Legal Resources - July 20, 2015 at 4:58 pm

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School Committee of Lexington v. Zagaeski (Lawyers Weekly No. 10-125-14)

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-11536   SCHOOL COMMITTEE OF LEXINGTON  vs.  MARK ZAGAESKI. Middlesex.      March 4, 2014. – July 14, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Arbitration, Judicial review, Authority of arbitrator, Award, School committee.  Education Reform Act.  Statute, Construction. School and School Committee, Arbitration, Termination of employment.  Public Employment, Termination.       Civil action commenced in the Superior Court Department on April 27, 2012.   Motions to vacate and to affirm an arbitration award were heard by Bruce R. Henry, J.   The Supreme Judicial Court granted an application for direct appellate review.     Geoffrey R. Bok (Colby C. Brunt with him) for the plaintiff. Daniel S. O’Connor (Laura Elkayam with him) for the defendant. Stephen J. Finnegan & Michael J. Long, for Massachusetts Association of School Commitees, Inc. & another, amici curiae, submitted a brief.   Ira Fader for Massachusetts Teachers Association, amicus curiae, submitted a brief.          SPINA, J.  In this case, the plaintiff, the school committee of Lexington (school committee), appealed a decision by a Superior Court judge confirming an arbitrator’s award reinstating a teacher, Mark Zagaeski, after the school district superintendent had terminated his employment for conduct unbecoming a teacher.  We granted the plaintiff’s application for direct appellate review.  This case presents an issue left unresolved by this court in School Dist. of Beverly v. Geller, 435 Mass. 223 (2001).  We must determine the scope of authority granted to an arbitrator by G. L. c. 71, § 42 (teacher dismissal statute), to reinstate a teacher who was dismissed for conduct that the arbitrator found constituted, at least nominally, a valid basis for dismissal.[1] We conclude that in light of the stated purposes of the Massachusetts Education Reform Act of 1993 (Reform Act or Act), of which the teacher dismissal statute is a part, the arbitrator exceeded the scope of his authority by awarding reinstatement of Zagaeski on the basis of the “best interests of the pupils” in the district, despite having found that the school district carried its burden to show facts amounting to conduct unbecoming a teacher.  See G. L. c. 69, § 1, as appearing in St. 1993, c. 71, § 27; G. L. c. 71, § 42.  We reverse the decision of the Superior Court judge and vacate the arbitration award.[2] 1.  Background.  a.  Facts.[3]  Zagaeski’s dismissal from his position at the Lexington public schools […]

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Posted by Massachusetts Legal Resources - July 14, 2014 at 3:53 pm

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