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