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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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. […]
Categories: News Tags: 1114717, Appeal, Board, Contributory, Lawyers, regional, Retirement, Weekly, Worcester
Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)
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-1158 Appeals Court ESSEX REGIONAL RETIREMENT BOARD vs. JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2] No. 16-P-1158. Essex. March 8, 2017. – July 12, 2017. Present: Grainger, Blake, & Neyman, JJ.[3] Public Employment, Retirement, Forfeiture of pension. Police, Retirement. Pension. Constitutional Law, Public employment, Excessive fines clause. County, Retirement board. Practice, Civil, Action in nature of certiorari. District Court, Appeal to Superior Court. Civil action commenced in the Superior Court Department on July 14, 2015. The case was heard by James F. Lang, J., on motions for judgment on the pleadings. Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow. GRAINGER, J. The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow. The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4). We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4). We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background. We summarize the procedural history and the underlying relevant facts which are undisputed. In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department. At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service. Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point. After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan. He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car. The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs. Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt. He began screaming […]
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 […]
Categories: News Tags: 1107515, Association, Committee, Educators, GrotonDunstable, Lawyers, regional, school, Weekly
Superintendent-Director of Assabet Valley Regional Vocational School District v. Speicher (Lawyers Weekly No. 10-159-14)
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-11563 SUPERINTENDENT-DIRECTOR OF ASSABET VALLEY REGIONAL VOCATIONAL SCHOOL DISTRICT vs. ANN MARIE SPEICHER. Suffolk. May 5, 2014. – September 11, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Arbitration, Authority of arbitrator, Judicial review, Award, School committee. Education Reform Act. Statute, Construction. School and School Committee, Arbitration, Suspension from employment. Public Employment, Suspension. Civil action commenced in the Superior Court Department on May 18, 2011. The case was heard by Paul E. Troy, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Tim D. Norris for the plaintiff. Sheilah F. McCarthy for the defendant. Will Evans & Quesiyah S. Ali, for Massachusetts Teachers Association, amicus curiae, submitted a brief. SPINA, J. In this case we are asked to decide whether an arbitrator exceeded his authority by reviewing the merits of a twenty-day suspension of a school librarian having professional teacher status. The librarian had been suspended for “conduct unbecoming” the librarian, pursuant to G. L. c. 71, § 42D. The arbitrator applied a just cause standard of review and overturned the suspension on the ground that the school district failed to meet its burden of proof. The school district filed an action to vacate the arbitrator’s award under G. L. c. 150C, § 11, and for declaratory relief under G. L. c. 231A. A judge in the Superior Court denied the school district’s motion for judgment on the pleadings, and allowed the librarian’s cross-motion for judgment on the pleadings, thereby confirming the arbitrator’s award. The school district appealed, and we transferred the case from the Appeals Court on our own motion. We hold that the arbitrator did not exceed his authority by reviewing the merits of the suspension. We further hold that the proper standard of review is whether the district sustained its burden of proving by a preponderance of the evidence the particular reason cited for the suspension. We affirm the judgment of the Superior Court.[1] 1. Background. The librarian, Ann Marie Speicher, had been employed as a school librarian for at least three consecutive school years by the Assabet Valley Regional School District (district) as of October 29, 2009. As such, she was considered a “teacher” under G. L. c. 71, § 41, and entitled to professional teacher status under […]
Doe, et al. v. Acton-Boxborough Regional School District, et al. (Lawyers Weekly No. 10-078-14)
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‑11317 JANE DOE[1] & others[2] vs. ACTON-BOXBOROUGH REGIONAL SCHOOL DISTRICT & others.[3] Middlesex. September 4, 2013. ‑ May 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Equal protection of laws, Equal Rights Amendment, Education. School and School Committee, Regional school district. Civil action commenced in the Superior Court Department on November 10, 2010. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Eric C. Rassbach, of the District of Columbia (Diana M. Verm, of the District of Columbia, & J. Patrick Kennedy with him) for the interveners. Geoffrey R. Bok for the defendants. David A. Niose for the plaintiffs. The following submitted briefs for amici curiae: Andrew P. Blake, David S. Petron, Judith C. Gallagher, & Christopher R. Mills, of the District of Columbia, for Steven Palazzo & others. David A. Cortman, of Georgia, Jeremy D. Tedesco, of Arizona, & Andrew D. Beckwith for Alliance Defending Freedom & another. Jay Alan Sekulow, Stuart J. Roth, & Colby M. May, of the District of Columbia, Erik M. Zimmerman, of Virginia, & Carly F. Gammill, of Tennessee, for American Center for Law and Justice. Ronald A. Lindsay & Karla Grossenbacher, of the District of Columbia, for Center for Inquiry. Thomas R. McCarthy & Brendan J. Morrissey, of the District of Columbia, Kelly J. Shackelford & Hiram S. Sasser, III, of Texas, & Gregory D. Cote for The American Legion & another. Martha Coakley, Attorney General, & Amy Spector, Assistant Attorney General, for the Commonwealth. IRELAND, C.J. This case presents two questions of State constitutional and statutory law: first, whether the daily recitation of our Nation’s pledge of allegiance (pledge) in the defendants’ schools violates the plaintiffs’ equal protection rights under the Massachusetts Constitution, because the pledge includes the words “under God”; and second, whether the recitation of the pledge violates G. L. c. 76, § 5, which prohibits discrimination in Massachusetts public school education. We hold that the recitation of the pledge, which is entirely voluntary, violates neither the Constitution nor the statute. 1. Procedural background. The plaintiffs, Jane Doe and John Doe, commenced this action in the Superior Court challenging the practice by which the pledge is […]
Town of Hanover v. New England Regional Council of Carpenters (Lawyers Weekly No. 10-057-14)
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‑11396 TOWN OF HANOVER vs. NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS. Plymouth. December 2, 2013. ‑ March 25, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. “Anti‑SLAPP” Statute. Constitutional Law, Right to petition government. Abuse of Process. Labor. Practice, Civil, Motion to dismiss, Standing. Civil action commenced in the Superior Court Department on October 6, 2011. A special motion to dismiss was heard by Robert C. Cosgrove, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Christopher N. Souris for the defendant. James A. Toomey for the plaintiff. Richard J. Yurko, Noemi A. Kawamoto, Sarah R. Wunsch, Audrey R. Richardson, & Susan Reid, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief. IRELAND, C.J. This case presents an issue of first impression: whether an association that has provided support for litigation, without being a named party in that litigation, has engaged in protected petitioning activities for the purposes of G. L. c. 231, § 59H. The defendant, the New England Regional Council of Carpenters, appeals from a Superior Court judge’s denial of its special motion to dismiss a suit by the town of Hanover (town) claiming that the defendant engaged in abuse of process in prior legal proceedings.[1] Because we conclude that support of litigation constitutes protected petitioning activity within the meaning of G. L. c. 231, § 59H, and that here, the town did not demonstrate that the defendant’s right to petition was “devoid of any reasonable factual support or any arguable basis in law,” Office One, Inc. v. Lopez, 437 Mass. 113, 123 (2002), we allow the defendant’s special motion to dismiss. 1. Prior litigation. We begin by briefly discussing certain events relevant to the defendant’s special motion to dismiss. In May, 2009, the town engaged in an open bidding process for the construction of the town’s new high school. Fordyce v. Hanover, 457 Mass. 248, 251-252 (2010) (Fordyce). The town awarded the contract to the contractor with the lowest formal bid, following which a subcontractor who was not involved in the winning contract filed a bid protest with the Attorney General. Id. at 252. After an investigation of the town’s bidding process and award of the contract, the Attorney General found that the contractor who […]
Herrick v. Essex Regional Retirement Board, et al. (Lawyers Weekly No. 10-132-13)
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‑11239 ROBERT D. HERRICK vs. ESSEX REGIONAL RETIREMENT BOARD & another.[1] Essex. March 5, 2013. ‑ July 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Public Employment, Retirement benefits, Forfeiture of pension. Judgment, Interest. Practice, Civil, Interest. Municipal Corporations, Pensions. County, Retirement board. Contract, Damages. Civil action commenced in the Superior Court Department on March 24, 2005. Following review by the Appeals Court, 77 Mass. App. Ct. 645 (2010), a motion for assessment of damages was heard by Howard J. Whitehead, J., and corrected judgment was entered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Sacco for Essex Regional Retirement Board. H. Ernest Stone for the plaintiff. GANTS, J. The questions on appeal are whether plaintiff Robert Herrick, a member of a public employee contributory retirement system governed by G. L. c. 32, §§ 1-28, inclusive, is entitled to prejudgment interest on a retroactive award of superannuation retirement benefits and, if so, at what rate of interest. We hold that the plaintiff is not entitled to interest at a rate of twelve per cent per annum pursuant to G. L. c. 231, § 6C, because his suit was not an action “based on contractual obligations.” We further hold that the plaintiff is not entitled to twelve per cent annual interest pursuant to G. L. c. 231, § 6H, because interest in this case is “otherwise provided by law” under G. L. c. 32, § 20 (5) (c) (2). We interpret § 20 (5) (c) (2) to provide that, where, as here, a retirement board makes a legal error in denying retirement benefits that is corrected by a court, the plaintiff is entitled to a rate of interest determined by the board’s actuary “so that the actuarial equivalent of the pension or benefit to which the member or beneficiary was correctly entitled shall be paid.” Background. The plaintiff worked for twenty-seven years as a custodian and maintenance mechanic for the Wenham Housing Authority and was a member of the Essex Regional Retirement System.[2] On May 1, 2003, he was charged with sexually assaulting his daughter and, that same day, resigned his position. On May 6, he submitted an application for voluntary superannuation retirement pursuant to G. L. c. 32, § 5 (1) (a). On […]
Leder v. Superintendent of Schools of Concord & Concord-Carlyle Regional School District, et al. (Lawyers Weekly No. 10-095-13)
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‑11224 PAUL LEDER[1] vs. SUPERINTENDENT OF SCHOOLS OF CONCORD & CONCORD-CARLYLE REGIONAL SCHOOL DISTRICT & others.[2] Middlesex. February 7, 2013. ‑ May 31, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. School and School District. School and School Committee, Superintendent of schools, Regional school district. Municipal Corporations, Contracts. Contract, Bidding for contract, Regional school district. Injunction. Practice, Civil, Preliminary injunction. State Ethics Commission. Conflict of Interest. Civil action commenced in the Superior Court Department on August 15, 2011. A motion for preliminary injunctive relief was heard by Garry V. Inge, J. A petition for interlocutory review was heard in the Appeals Court by Elspeth B. Cypher, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kwabena B. Abboa-Offei for the plaintiff. Adam Simms for the defendants. Andrew P. Botti & David K. Moynihan, for David K. Moynihan & another, amici curiae, submitted a brief. Martha Coakley, Attorney General, & Deirdre Roney, Special Assistant Attorney General, for State Ethics Commission, amicus curiae, submitted a brief. GANTS, J. The issue on appeal is whether, under G. L. c. 268A, § 21 (a), as appearing in by St. 2009, c. 28, § 80, a party may obtain declaratory or injunctive relief rescinding an action taken by a municipal agency based on an alleged violation of G. L. c. 268A, § 23, where the State Ethics Commission (commission) has made no finding of a violation and where the municipal agency has not requested this relief. We conclude that a finding of a violation of § 23 by the commission after an adjudicatory proceeding and a request for rescission by the municipal agency are both prerequisites to the filing of a complaint seeking rescission under G. L. c. 268A, § 21 (a). Because neither prerequisite has been met in this case, we affirm the denial of the plaintiff’s motion for a preliminary injunction and remand the case to the Superior Court with instructions to dismiss the complaint.[3] Background. The facts are not materially in dispute. The plaintiff, Paul Leder, doing business as Spencer Brook Strings (SBS), operates a musical instrument sale and rental business that rents string instruments to students in various school districts throughout Massachusetts, including the Concord public schools and the Concord-Carlisle Regional School District (collectively, school district). Since […]
