This is in follow up to our blog post concerning the amendment of the civil service residency statute, MGL c. 31 sec 58. Since this amendment was part of the State Budget and since the Budget has an emergency preamble, the amendment to 31 sec 58 was also effective immediately. Therefore the amendment is in effect and it would be appropriate for a police and/or fire fighter unions in civil service communities to request bargaining with their municipal employers to increase the 10 mile residency requirement as the amendment allows.
After a nearly 20 year battle between the Lynn Police Association and the City of Lynn, the Appeals Court has finally confirmed that State Law, MGL c. 41 sec 99A, concerning the residency of police officers and fire fighters controls any residency obligations for police officers or firefighters and that a City Charter does not have any relevance or control.
In this case, the Appeals Court ruled that the Decision issued by the Superior Court in 2000 between the Lynn Police Association and the City of Lynn is controlling. That Decision determined that MGL c. 41 sec 99A establishes residency as a term or condition of the employment of police officers and firefighters in Massachusetts and imposes a 15 mile statutory limit. The only way that a City or Town can impose a more stringent residency requirement is through collective bargaining. As Judge Grasso explained “the court finds an explicit indication of the legislature’s intent to tie local residency requirements to the collective bargaining process.”
Anticipating that the Appeals Court would agree with the Union and require bargaining over any residency requirement, the Union and the City bargained last year and reached agreement for the residency requirement for police officers in Lynn. Officers must now maintain residency in Lynn for the first 10 years of their employment.
This Decision by the Appeals Court confirms that any municipal employer who wants to require residency for police officers or firefighters more stringent than the 15 mile requirement of MGL c. 41 sec 99A must bargain with the Union.
The case is City of Lynn vs. Lynn Police Association, 12-P-1122, issued March 27, 2013 pursuant to Rule 1:28. The Union was represented by Sandulli Grace Attorneys Susan F. Horwitz and Jennifer Rubin. Attorney Horwitz also represented the Union in the original Superior Court case in 2000.
The Civil Service Commission issued a decision on August 6, 2009 that allows employers to count some prior non-fire service in calculating firefighter seniority in the event of a layoff. The decision confirms two prior Commission decisions from the 1990s, both of which relied on a 1991 Attorney General opinion. The case, Ponte, et al. v. City of Fall River, D1-09-155-158, arose after the City of Fall River laid off a number of firefighters in March 2009. The City laid off the least senior firefighters, using a seniority list that counted prior service by current firefighters in other civil service positions in the City. The four Appellants were laid off firefighters who had all served as firefighters with the Fall River Fire Department longer than four of the firefighters who were not laid off (“the retained firefighters”). The Appellants claimed that the City erred when it counted prior service in other City departments in calculating seniority. In fact, the Appellants argued, the four retained firefighters should have been laid off instead of them. The retained firefighters were represented by John M. Becker, of Sandulli Grace, P.C.
The legal arguments centered on the applicability of the last sentence of the fourth paragraph of General Laws, Chapter 31, Section 33: “In determining the seniority of a firefighter for the purpose of reduction in rank or reduction in force, his ranking shall be based on his length of service in the fire department in which such reduction is to take place.” If the sentence applied, then the City was wrong to include service outside the fire department in calculating seniority for the layoffs.
In a searching statutory analysis, Commissioner Paul Stein, writing for a unanimous Civil Service Commission, explored the language and history of Section 33 to conclude finally that the sentence did not apply. Specifically, Commissioner Stein found that each paragraph of Section 33 referred to different scenarios and by placing the disputed sentence at the end of one of those paragraphs, instead of creating a new paragraph, the Legislature intended the sentence to apply only to the scenarios discussed in that paragraph. Paragraph four discusses voluntary and involuntary transfers from one town or city to another, but service in other departments in the same city or town is discussed in paragraph three. Therefore, the City was correct when it included service in other departments in the retained firefighters’ seniority.
Commissioner Stein’s conclusion echoed that of a 1991 Attorney General Opinion, which had already been affirmed twice by the Commission in Maccarone et al. v. Lawrence Fire Dep’t, 4 MCSR 1105 (1991) and Smith v. Lawrence Fire Dep’t, 6 MCSR 35 (1993). Ultimately, the Commission held, the Legislature must make any changes in the statute.
In a subsidiary finding, Commissioner Stein interpreted the words of the dispute sentence “service in the fire department.” Ruling against the Appellants, the Commission found that service as EMTs in the same fire department (which three of the four retained firefighters possessed) would be counted. Commissioner Stein wrote, “If the intent was to calculate firefighter seniority solely on the basis of service as a firefighter, and not other service in any other division or departmental unit, the statutory language could easily have been modified to express that distinction.”
In the end, the retained firefighters kept their jobs, and the Appellants remained laid off. Commissioner Stein notes, however, that that Appellants and other laid off firefighters are continuing to challenge their layoffs before the Commission on other grounds.
Link to Ponte case