Service Employees International Union, Local 509, et al. v. Auditor of the Commonwealth, et al. (Lawyers Weekly No. 10-186-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12126 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, & others[1] vs. AUDITOR OF THE COMMONWEALTH & others.[2] Suffolk. September 6, 2016. – December 9, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Privatization Act. Auditor. Commissioner of Mental Health. Public Welfare, Department of Health and Human Services. Mental Health. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 8, 2016. The case was reported by Spina, J. Ian O. Russell (Katherine D. Shea & James F. Lemond with him) for the plaintiffs. Bryan F. Bertram, Assistant Attorney General (Daniel J. Hammond, Assistant Attorney General, with him) for the defendants. LENK, J. The plaintiffs, Service Employees International Union, Local 509 (SEIU), the Massachusetts Nurses Association, and the American Federation of State, County and Municipal Employees, Council 93, challenge a decision by the Auditor of the Commonwealth approving a proposed privatization contract pursuant to G. L. c. 7, §§ 52-55 (Pacheco Law). The Pacheco Law establishes “[p]rocedures that agencies must follow when beginning the bidding process for and entering into a privatization contract.” Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 786 (2000) (MBTA). The Auditor of the Commonwealth must review all privatization proposals to determine if they comply with the Pacheco Law. Id. In January, 2016, the Department of Mental Health (DMH) submitted a proposal to the Auditor that would privatize certain of its State-run mental health services. Under the terms of the proposal, the Massachusetts Behavioral Health Partnership (MBHP), a privately owned State-wide mental health provider, would take over from DMH the provision of mental health services in the Southeast region of Massachusetts. In March, 2016, the Auditor issued a written decision concluding that DMH’s privatization proposal met the requirements of the Pacheco Law, specifically, that the privatization was procured properly, that it would not result in a net cost to the Commonwealth, and that it would not cause a decline in the quality of mental health services provided in the Southeast region. The plaintiffs then filed a petition in the nature of certiorari in the county court, seeking review of the Auditor’s decision. A single justice reserved and reported the matter to the full court. We conclude that the […]
Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16)
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-12035 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH & others.[1] Suffolk. September 6, 2016. – November 22, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Privatization Act. Commissioner of Mental Health. Commonwealth, Contracts. Contract, Validity. Public Employment. Laches. Practice, Civil, Judgment on the pleadings. Civil action commenced in the Superior Court Department on February 15, 2012. Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Ian O. Russell (Katherine D. Shea with him) for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for Department of Mental Health. Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue. Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue. Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief. LENK, J. This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012. Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55. The Pacheco Law establishes certain prerequisites that agencies must meet when seeking to enter into privatization contracts. Because DMH had determined that the subject contracts were not privatization contracts, however, it did not comply with those statutory prerequisites. In bringing this action, the union seeks, among other things, a declaration invalidating the contracts on the basis of G. L. c. 7, § 54 (§ 54), which provides that no privatization contract “shall be valid” where an agency did not follow the necessary procedures. In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not […]
City of Springfield v. United Public Service Employees Union (Lawyers Weekly No. 11-035-16)
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-742 Appeals Court CITY OF SPRINGFIELD vs. UNITED PUBLIC SERVICE EMPLOYEES UNION. No. 15-P-742. Hampden. February 11, 2016. – March 25, 2016. Present: Kafker, C.J., Rubin, & Agnes, JJ. Arbitration, Collective bargaining, Authority of arbitrator, Judicial review. Employment, Sexual harassment, Termination. Public Policy. Public Employment, Collective bargaining, Termination, Reinstatement of personnel. Civil Service, Termination of employment, Reinstatement of personnel. Civil action commenced in the Superior Court Department on January 2, 2014. The case was heard by John S. Ferrara, J. Gordon D. Quinn for the plaintiff. Lan T. Kantany for the defendant. KAFKER, C.J. The issue presented is whether an arbitrator exceeded her authority when she ordered a terminated employee reinstated without loss of pay or other rights, even though she found that he had engaged in conduct amounting to sexual harassment. Because the mitigating circumstances the arbitrator identified supported her determination that the employer lacked just cause for termination, and her order does not preclude appropriate remedial action to address the employee’s sexual harassment, we conclude that her award does not offend public policy or require a result prohibited by statute. We therefore affirm the Superior Court judge’s decision confirming the validity of the award. 1. Background. The city of Springfield (city) discharged Gregory Ashe, a long-time employee, following an investigation and hearing after a coworker complained of sexually inappropriate conduct. Ashe, through his union, grieved the city’s decision to terminate his employment. Pursuant to the parties’ collective bargaining agreement (CBA), the case was submitted to an arbitrator. The parties presented the following question: ”Was the termination of the Grievant Gregory Ashe supported by just cause? If not, what shall be the remedy?” After two days of hearings, the arbitrator issued her award. She determined that much of the alleged harassing conduct did occur, but found that mitigating circumstances meant there was not just cause for termination. She concluded: ”As a remedy, the Grievant is entitled to be reinstated to his position without loss of compensation or other rights.” The city sought to vacate the award in the Superior Court under G. L. c. 150C, § 11. In its appeal, the city argued that the arbitrator exceeded her authority under the CBA by reinstating the employee in direct violation of the public policy and statutory requirements governing sexual harassment. The judge, in […]
Service Employees International Union, Local 509 v. Department of Mental Health (Lawyers Weekly No. 10-138-14)
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; SJCReportersjc.state.ma.us SJC-11544 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH. Suffolk. April 7, 2014. – August 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Privatization Act. Commissioner of Mental Health. Auditor. Declaratory Relief. Practice, Civil, Declaratory proceeding, Standing, Parties, Failure to join party. Civil action commenced in the Superior Court Department on February 15, 2012. The case was heard by Merita A. Hopkins, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Alfred Gordon O’Connell for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. Gerald A. McDonough, for the Auditor of the Commonwealth, amicus curiae, submitted a brief. LENK, J. The plaintiff, Service Employees International Union, Local 509 (union), appeals from an order of a Superior Court judge dismissing its complaint for declaratory judgment pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint, the union alleged that the Department of Mental Health (DMH) violated the Massachusetts privatization statute, G. L. c. 7, §§ 52-55 (Pacheco Law), by entering into contracts with private entities to obtain services substantially similar to those performed by members of the union, but failing to comply with relevant statutory obligations. DMH filed an answer as well as a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). After a hearing, the judge granted DMH’s motion, which she treated as a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974). The judge determined that the union lacked both direct and associational standing to seek declaratory relief and, additionally, that the union’s failure to join necessary parties constituted a separate jurisdictional bar requiring dismissal. The judge did not err in declining to consider the union’s complaint on the basis of its failure to name all necessary parties. However, because we conclude that the union has direct standing to seek a declaratory judgment under G. L. c. 231A that would invalidate the contracts at issue, we remand the case to the Superior Court for the limited purpose of allowing the union to seek leave to amend […]
Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County (Lawyers Weekly No. 10-109-13)
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‑11229 SHERIFF OF SUFFOLK COUNTY vs. JAIL OFFICERS AND EMPLOYEES OF SUFFOLK COUNTY.[1] Suffolk. February 4, 2013. ‑ June 14, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sheriff. Public Employment, Collective bargaining, Termination. Labor, Public employment, Collective bargaining. Arbitration, Collective bargaining, Award. Damages, Back pay, Mitigation, Interest. Interest. Governmental Immunity. Waiver. Judgment, Enforcement, Interest. Practice, Civil, Interest, Waiver. Civil action commenced in the Superior Court Department on April 24, 2001. Following review by this court, 451 Mass. 698 (2008), a complaint for contempt, filed on August 24, 2009, was heard by John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Timothy J. Casey, Assistant Attorney General, for the plaintiff. John M. Becker for the defendant. CORDY, J. This appeal arises from an action in the Superior Court to enforce an arbitrator’s award of back pay to a jail officer employed and wrongfully discharged by the sheriff of Suffolk County (sheriff). The sheriff appeals from the judge’s ruling that the jail officer, Joseph Upton, had no duty to mitigate his damages by seeking comparable employment. The Jail Officers and Employees of Suffolk County (union), on behalf of Upton, cross appeals from the judge’s decision not to assess statutory postjudgment interest on the arbitrator’s award. Although we conclude that Upton did have a duty to mitigate his damages, we affirm the judgment on the grounds that the sheriff waived this issue by failing to raise it earlier in the proceedings, and that, regardless, she failed to meet her burden of proof on the issue.[2] We also affirm the judge’s decision not to assess postjudgment interest on sovereign immunity grounds. 1. Background. This appeal represents the putative final chapter in a case that, at the time of an earlier decision in 2008, already had a “long and tortuous procedural history.” Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 699 (2008) (Sheriff of Suffolk County I). On December 29, 1999, Upton was discharged from his position as a jail officer at the Nashua Street jail in Boston (jail) following an incident in which Upton allegedly “filed untimely and then false reports” concerning an assault of an inmate that he […]
Salary Increase for Boston Redevelopment Authority Employees
Boston Redevelopment Authority staffers will receive raises for the first time in five years, the Boston Herald reported this week. With a budget separate from the city’s budget, the BRA recently approved 3 percent raises for all employees except for nine senior staff members, including Director Peter Meade and Chief Planner Kairos Shen. The increase puts eight staff members above the $ 100,000 salary level, for a total of 34 BRA employees who make six digits, according to the Herald. BRA spokeswoman Susan Elsbree told the newspaper that the raises represented a cost of living increase. BRA employees have worked without raises since 2008 and even received a pay cut one year, in 2009, the Herald reported. The BRA employs 207 people today—a drop from 2009 when the agency had 268 workers on the payroll. Read more about the increases and see a list of salaries for all BRA employees on the Herald website. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch