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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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
Saliba v. City of Worcester (Lawyers Weekly No. 11-137-17)
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-591 Appeals Court PHILIP SALIBA vs. CITY OF WORCESTER. No. 16-P-591. Worcester. February 14, 2017. – October 27, 2017. Present: Green, Meade, & Agnes, JJ. Practice, Civil, Motion to dismiss. Public Employment, Polygraph test. Statute, Construction. Civil action commenced in the Superior Court Department on March 27, 2015. A motion to dismiss was heard by James R. Lemire, J. Allyson H. Cohen for the plaintiff. William R. Bagley, Jr., Assistant City Solicitor, for the defendant. AGNES, J. Massachusetts law prohibits employers, public as well as private, from subjecting applicants for employment, as well as employees, to a “lie detector test,” whether the test is administered in this State or elsewhere. G. L. c. 149, § 19B.[1] The statute includes safeguards for employees who assert their rights, provides criminal penalties for those who violate the statute, and permits persons aggrieved by a statutory violation to bring a civil action against the violator for injunctive relief and damages.[2] This appeal requires us to address a question of first impression, namely, whether § 19B(2) prohibits a Massachusetts employer from considering the results of a lie detector test administered lawfully by an out-of-State employer in connection with an individual’s earlier application for employment in another State.[3] For the reasons that follow, we conclude that § 19B(2) does not apply in the circumstances of this case, and accordingly, we affirm the judgment dismissing the plaintiff’s complaint. The plaintiff, Philip Saliba, alleges that the defendant, the city of Worcester (city), violated G. L. c. 149, § 19B(2), by obtaining and referring to a copy of the plaintiff’s lie detector (polygraph) test results from his application for a job with the Connecticut State police (CSP). The judge below allowed the defendant’s motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 747 (1974), and judgment entered accordingly. The plaintiff filed a timely appeal. Background. 1. 2007 CSP and Worcester police department applications. The plaintiff’s claim is based on the following series of events, which are summarized in his complaint. In 2007, the plaintiff, an honorably discharged United States Marine Corps veteran, was working full time as a plumber. He applied for a job with the CSP. As part of the hiring process, the plaintiff voluntarily underwent a polygraph examination.[4] On January 18, 2008, the plaintiff was informed that the reason he was […]
Russell Block Associates v. Board of Assessors of Worcester (Lawyers Weekly No. 11-145-15)
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-283 Appeals Court RUSSELL BLOCK ASSOCIATES vs. BOARD OF ASSESSORS OF WORCESTER. No. 14-P-283. Suffolk. November 10, 2014. – September 16, 2015. Present: Rubin, Brown, & Maldonado, JJ. Taxation, Real estate tax: abatement, classification of property. Real Property, Tax. Appeal from a decision of the Appellate Tax Board. John F. O’Day, Jr., Assistant City Solicitor, for board of assessors of Worcester. Daniel I. Cotton for the taxpayer. BROWN, J. The board of assessors of Worcester (assessors) challenges a decision of the Appellate Tax Board (board) granting the taxpayer an abatement of the fiscal year (FY) 2012 tax on its parking garage. The issue for consideration is whether the board erred by finding and ruling that the subject property was a multiple-use property appropriately classified as part residential and part commercial.[1] See G. L. c. 59, § 2A(b). We conclude that the board’s classification determination was a reasonable interpretation of the statutory language. Accordingly, we affirm the decision of the board. 1. Facts. We summarize the board’s findings.[2] In 1992, the taxpayer, Russell Block Associates, constructed a twenty-four story residential building (Tower) in the city of Worcester. The Tower development project was conditioned on the construction of a parking garage.[3] The five-story garage in issue contains 300 parking spaces and is located across a small side street from the Tower. There are no dwelling units in the garage. By contract entitled “Agreement to Provide Parking Spaces,” the taxpayer agreed to reserve a minimum of one hundred spaces and up to a maximum of 250 spaces for exclusive use by the tenants of the Tower. For the next nineteen years, the assessors classified the garage as a mixed-use property, taxing a large percentage of its value at the lower residential rate.[4] In classifying the property in this manner, the assessors followed the guidelines issued by the Commissioner of Revenue (commissioner).[5] See G. L. c. 58, § 3; McNeill v. Assessors of W. Springfield, 396 Mass. 603, 606 (1986). Beginning in FY 2012, however, the assessors classified the property as entirely commercial. 2. Standard of review. Our task is to embrace an interpretation “consistent with the purpose of the statute and in harmony with the statute as a whole.” Adams v. Assessors of Westport, 76 Mass. App. Ct. 180, 183-184 (2010), quoting from Sudbury v. Scott, 439 Mass. […]
Goduti v. City of Worcester (Lawyers Weekly No. 11-048-15)
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-597 Appeals Court PHILIP L. GODUTI, trustee,[1] vs. CITY OF WORCESTER. No. 14-P-597. Suffolk. January 12, 2015. – May 13, 2015. Present: Fecteau, Wolohojian, & Massing, JJ. Moot Question. Practice, Civil, Moot case, Summary judgment. Real Property, Foreclosure of tax title, Record title. Mortgage, Foreclosure. Municipal Corporations, Tax title property. Taxation, Real estate tax: tax taking. Civil action commenced in the Land Court Department on September 29, 2011. The case was heard by Keith C. Long, J., on motions for summary judgment. Michael J. Markoff for the plaintiff. Karen A. Meyer, Assistant City Solicitor, for the defendant. FECTEAU, J. Philip L. Goduti appeals from the allowance of summary judgment against him by a judge of the Land Court in his declaratory judgment action regarding the legality of the city of Worcester’s (city) tax assessment for the years 2006 through 2011 on a property located at 2 Gambier Avenue, Worcester (property). He first contends that the city was not authorized, under G. L. c. 59, § 11, to assess taxes to his mortgagor, who failed to pay the taxes, but was required, instead, to assess taxes during those years only to him, the purported record owner of the property following his foreclosure by entry pursuant to G. L. c. 244, § 1. Second, Goduti argues that the judge incorrectly determined, especially at the summary judgment stage, that he had waived his foreclosure. While we need not reach his arguments because this case has become moot, we reject his contentions nevertheless. 1. Background. The property in question was first acquired by Sandra and James Dunn, husband and wife, in 1973. In 1989, Goduti became a mortgagee of the property behind two others.[2] While remaining current on the first two mortgages, the Dunns fell behind on their mortgage payments to Goduti. Utilizing the foreclosure by entry procedure of G. L. c. 244, § 1, Goduti recorded a certificate of entry in the registry of deeds on October 9, 1996, thereby signaling his intent to foreclose. During the three‑year period after Goduti filed his certificate of entry, after which foreclosure would be completed and his title would ripen, he accepted regular payments from the Dunns; Goduti disputes that those payments were applied to the mortgage, claiming that they were for use or occupation of the property. When the Dunns divorced in 2004, the […]
Chief of Police of the City of Worcester v. Holden (Lawyers Weekly No. 10-041-15)
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 SJC-11682 CHIEF OF POLICE OF THE CITY OF WORCESTER vs. RAYMOND J. HOLDEN, JR. Worcester. November 6, 2014. – March 11, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Firearms. License. Constitutional Law, Right to bear arms, Vagueness of statute. Due Process of Law, Revocation of license, Vagueness of statute. Words, “Suitable person.” Civil action commenced in the Superior Court Department on December 6, 2011. The case was heard by James R. Lemire, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Mel L. Greenberg for the defendant. Kevin M. Gould, Assistant City Solicitor (David M. Moore, City Solicitor, with him) for the plaintiff. Julia Kobick, Assistant Attorney General, for the Commonwealth, amicus curiae. The following submitted briefs for amici curiae: Jonathan E. Lowy, Kelly Sampson, Elizabeth Burke, Jonathan L. Diesenhaus, James W. Clayton, & Anna M. Kelly, of the District of Columbia, & Kathy B. Weinman for Brady Center to Prevent Gun Violence. Ben T. Clements & Lila E. Slovak for Massachusetts Chiefs of Police Association, Inc., & others. Edward F. George, Jr., & Susan Chu for Gun Owners’ Action League, Inc. Karen L. MacNutt for Commonwealth Second Amendment, Inc. SPINA, J. This case mounts a challenge under the Second Amendment to the United States Constitution[1] to the constitutionality of the “suitable person” standard in G. L. c. 140, § 131 (d) and (f), as amended through St. 1998, c. 180, § 41, by which licenses to carry firearms were issued, suspended, or revoked between 2005 and 2010.[2] The chief of police of the city of Worcester (chief) determined, based on the history of domestic violence of Raymond J. Holden, Jr., against his wife, that Holden was not a suitable person to have such a license. Holden sought judicial review of three separate adverse decisions of the chief: suspension of his license, then revocation of his license, and finally denial of his application for a new license to carry. After a complex history of District Court litigation that was consolidated and resolved largely in favor of Holden, the chief sought certiorari review in the Superior Court. On cross motions for judgment on the pleadings, a judge in the Superior Court ruled in favor of the […]
City of Worcester v. Civil Service Commission (Lawyers Weekly No. 11-016-15)
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 12-P-1844 Appeals Court CITY OF WORCESTER vs. CIVIL SERVICE COMMISSION & another.[1] No. 12-P-1844. Suffolk. December 6, 2013. – February 26, 2015. Present: Fecteau, Sullivan, & Maldonado, JJ. Practice, Civil, Review respecting civil service. Civil Service, Police, Decision of Civil Service Commission, Termination of employment, Judicial review. Administrative Law, Hearing, Judicial review. Municipal Corporations, Police. Police, Discharge. Public Employment, Police, Termination. Statute, Construction. Civil action commenced in the Superior Court Department on October 22, 2010. The case was heard by Carol S. Ball, J., on motions for judgment on the pleadings. Leo J. Peloquin for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission. Meghan C. Cooper for Leon Dykas. MALDONADO, J. The city of Worcester (city) appeals from a judgment of the Superior Court upholding the determination of the Civil Service Commission (commission) that an appointing authority may not suspend or terminate a tenured employee for the employee’s failure to testify at a hearing pursuant to G. L. c. 31, § 41. The city contends that because § 41 does not explicitly establish a statutory testimonial privilege and because police department rules and regulations require officers to provide truthful testimony when requested, the commission exceeded its authority and improperly intruded upon the city’s right to enforce its rules of conduct. We conclude that the commission’s determination that, because the § 41 hearing is held for the protection of the tenured employee and not the appointing authority, the tenured employee may not be sanctioned for the employee’s failure to testify at his § 41 hearing is consistent with the statutory purpose of § 41 and entitled to substantial deference. Therefore, we affirm. Factual background. The relevant facts drawn from the administrative record are undisputed. Leon Dykas was a tenured civil service employee, working as a police officer for the Worcester police department (department). In 2008, Dykas was purported to have engaged in noncriminal misconduct involving his ex-wife in violation of a “Last Chance Settlement Agreement” into which he had entered with the department.[2] Dykas cooperated with the department’s internal investigation and attended an investigatory interview at the department’s bureau of professional standards (BOPS) as ordered. Following review of the BOPS report and a transcript of Dykas’s interview, the chief of police, Gary Gemme, placed Dykas on paid administrative leave pending completion of […]
Worcester Square Hosts Free Concert Thursday
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Below and featured in the image gallery above are five home that sold in the South End area this week. Check out Patch's Real Estate section for open houses, apart South End Patch News
What Sold in the South End: Worcester Street Condo for $1.05M
Below and featured in the image gallery above are five home sales that were made in the South End area this week. Check out Patch's Real Estate section for open ho South End Patch News