Tetreault v. Board of Selectmen of Lynnfield ( 2023 )

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21-P-1109 Appeals Court
MARK TETREAULT vs. BOARD OF SELECTMEN OF LYNNFIELD.
No. 21-P-1109.
Essex. November 30, 2022. – February 24, 2023.
Present: Neyman, Desmond, & Grant, JJ.
Municipal Corporations, Fire department, Charter, By-laws and
ordinances. Contract, Employment. Public Employment.
Fire Fighter, Appointment. Practice, Civil, Summary
judgment, Declaratory proceeding. Statute, Construction.
Civil action commenced in the Superior Court Department on
August 6, 2018.
The case was heard by C. William Barrett, J., on motions
for summary judgment.
Devin R. McDonough for the defendant.
Andrew J. Gambaccini for the plaintiff.
GRANT, J. The plaintiff, Mark Tetreault, maintains that
when he signed an employment contract as fire chief of the town
of Lynnfield (town), he believed that he would be granted a
lifetime appointment by G. L. c. 48, § 42, colloquially known as
the “strong chief” statute. That employment contract provided
2
that it was terminable at the end of its term by either party on
proper notice. After the town gave him notice of its intent not
to renew his contract at the end of his fifth year as fire
chief, Tetreault sued the town seeking declaratory relief.
Ruling on cross motions for summary judgment, a judge allowed
Tetreault's motion and denied the town's motion. The judge
ordered and declared that the town's board of selectmen (board)
violated the strong chief statute, the town charter, and the
personnel bylaws of the town's municipal code by removing
Tetreault as chief without a hearing and the establishment of
cause. Because what happened was a nonrenewal of Tetreault's
contract as permitted by its terms and not a removal from office
within the meaning of the strong chief statute, we reverse.
Background. In reviewing a grant of summary judgment, we
recite the facts in the light most favorable to the town, the
nonmoving party against which summary judgment was entered. See
Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202,
203 (1991). See also Flint v. Boston, 94 Mass. App. Ct. 298,
303 (2018). We derive the facts from the summary judgment
record, including the statements of those facts that the parties
have agreed are undisputed.
1. Lynnfield's government and fire department. In
establishing a fire department, a town may choose from a variety
of administrative models set forth in local option statutes.
3
See, e.g., G. L. c. 48, §§ 42, 42A, 58. In 1922, the town voted
to accept one such statute, the predecessor law to the strong
chief statute. See St. 1920, c. 591, § 27, now codified at
G. L. c. 48, § 42. The strong chief statute and its
counterpart, the so-called “weak chief” statute, establish the
most common models for fire departments in Massachusetts. As
the name implies, strong chiefs have "full and absolute
authority" to administer fire departments established under
their control. G. L. c. 48, § 42. Among other duties, strong
chiefs appoint deputy chiefs, officers, and firefighters; set
the compensation of the permanent and call members of the
department subject to the approval of the board of selectmen;
and make all rules and regulations for the operation of the
department. See Atkinson v. Ipswich, 34 Mass. App. Ct. 663, 664
(1993). The town codified the duties of its strong chief in its
municipal code. See Lynnfield Municipal Code § 335-3. Under
the strong chief statute, the chief "may be removed for cause by
the selectmen at any time after a hearing." G. L. c. 48, § 42.
Strong chiefs in turn "may remove [appointed subordinates] at
any time for cause and after a hearing."1 Id.
1 The subordinate members of the town's fire department are
unionized, but the collective bargaining agreement does not
grant them tenure. The provisions of the civil service system,
G. L. c. 31, do not apply to the town's fire department.
4
In towns that have accepted the weak chief model, the
selectmen establish the fire department, appoint the chief and
the officers and firefighters, fix their salaries, and make the
regulations governing the department. See G. L. c. 48, § 42A,
inserted by St. 1973, c. 1048, § 2. In a town using the weak
chief model that is not subject to the civil service statute,
G. L. c. 31, the weak chief serves "at [the] pleasure" of the
selectmen, G. L. c. 48, § 42A, who need not show cause before
removing the weak chief.
As the town and Tetreault did here, and as discussed in
more detail below, a municipality may also enter into a contract
that sets "the salary, fringe benefits, and other conditions of
employment, including but not limited to, severance pay [and]
. . . conditions of discipline, termination, dismissal, and
reappointment . . . for its . . . fire chief." G. L. c. 41,
§ 108O, as amended by St. 2000, c. 423, §§ 1, 2.
In addition, the town's charter provides certain
protections to employees, including the fire chief. Section
5-1(b) of the charter states that the board may appoint certain
town officers, including the fire chief, "for indefinite terms."
See Atkinson, 34 Mass. App. Ct. at 665 (fire chief is town
officer). Section 5-5-1 of the charter permits the board "to
rescind, for cause, any appointment" to office, so long as the
board gives written notice to the appointee of the board's
5
intention, the reasons for the proposed removal, and the right
to be heard at a public hearing, if requested.
Similarly, the town's personnel bylaws provide protections
to employees, including the fire chief. See Lynnfield Personnel
Bylaws § 62-3. Employees may not be "discharge[d]" without
written notice of the proposed reasons for the discharge, "a[n]
explanation of the evidence upon which the charges are based,"
and an opportunity to rebut the charges. Lynnfield Personnel
Bylaws § 62-57(B).
2. Tetreault's employment. In December 2013, the board
appointed Tetreault as the town's fire chief "subject to the
successful negotiation of an employment contract." During those
negotiations, in discussing the contract provision that he serve
as an employee at will during an initial six-month probationary
period, Tetreault told the town administrator that it was his
understanding that under the strong chief statute, a chief "only
could be terminated for cause." Tetreault asked to include in
the contract language that provided that "[n]othing in this
agreement shall diminish the authority, duty, and protections
granted under [G. L. c. 48, § 42]," and that the contract was
"in accordance with [G. L. c. 41, § 108O]."2 The town
2 The contract was based on a template available online
through the fire chiefs associations of New Hampshire and
Massachusetts. Tetreault did not have an attorney review the
contract.
6
administrator declined to do so, and no reference to either
statute was included in the contract.
The negotiations culminated in a contract between Tetreault
and the town dated January 16, 2014. Paragraph 12.B of the
contract provided that after the initial six-month probationary
period, Tetreault "may be disciplined or discharged only for
just cause, upon proper notice and only after a hearing."
Paragraph 18 of the contract provided that its term was
initially for three years, until December 31, 2016, at which
point the contract automatically self-renewed for one-year
periods "[u]nless either party provide[d] written notice to the
other of its intention to renegotiate and/or not to renew this
contract no less than six (6) months prior to the end of its
initial or any extended terms."
As the town's fire chief, Tetreault successfully completed
the probationary period and the initial three-year term, after
which the employment contract self-renewed for two one-year
periods. For over four years, the board never disciplined
Tetreault, nor informed him that his conduct gave it cause for
his removal.
In June 2018, the board voted "not to renew" Tetreault's
contract beyond December 31, 2018. By letter dated June 26,
2018, the board gave notice to Tetreault, consistent with
paragraph 18.B of his contract, of its intent "not to renew" his
7
contract. The board gave no reason for its decision and refused
to provide Tetreault with a hearing on the matter.
In August 2018, Tetreault filed a wrongful termination
action in the Superior Court, seeking injunctive relief
preventing the town from removing him as fire chief and a
judgment declaring that the strong chief statute, the town
charter, and his employment contract provided that he shall
remain fire chief unless removed for cause. See G. L. c. 231A,
§§ 1, 2. A motion judge denied Tetreault's request for
injunctive relief; Tetreault did not appeal that ruling, and
that claim is not before us. The town subsequently paid
Tetreault three months' salary as severance pay as required by
the contract,3 and in January 2019 he began working as fire chief
of a town in New Hampshire.
Another Superior Court judge granted summary judgment
declaring that the town violated the strong chief statute, as
well as its own charter and bylaws, by removing Tetreault as
fire chief without first providing him with a hearing and
showing cause for the removal.4 From the language of the strong
3 Paragraph 18.C of the contract provided: "In the event
the [chief] is not reappointed . . . , the [town] agrees to pay
the [chief], as liquidated damages, a lump sum severance payment
equal to (3) months' salary."
4 Near the very end of Tetreault's contract term, on
December 20, 2018, the town placed him on administrative leave
pending an investigation into an unrelated incident. In its
8
chief statute that a chief "may be removed for cause by the
[board] at any time after a hearing," G. L. c. 48, § 42, the
judge concluded that it was "plain and unambiguous" that
Tetreault was entitled to a hearing "prior to termination." The
town appealed.
Discussion. 1. Standard of review. We review de novo the
order granting summary judgment. See City Council of
Springfield v. Mayor of Springfield, 489 Mass. 184, 187 (2022).
No material fact is in dispute, and both parties agree that the
appeal turns on the construction of the strong chief statute,
the town charter and bylaws, and Tetreault's employment
contract. Interpretation of each of those sources is a question
of law.
2. The strong chief statute. "Statutory interpretation is
a question of law for the court."5 Boston Police Patrolmen's
brief, the town argued that the incident amounted to just cause
to terminate Tetreault, thereby mooting this appeal. At oral
argument the town abandoned that argument, and we do not reach
it.
5 To the extent that Tetreault bases his claim on affidavits
of two retired fire chiefs as to their understanding of the
meaning of the strong chief statute and G. L. c. 41, § 108O,
those affidavits are not evidence of legislative intent. See
McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 799
(1979), S.C., 380 Mass. 263 (1980) ("postenactment, private
views of citizens supporting legislation are not relevant
legislative history"). See also Administrative Justice of the
Hous. Court Dep't v. Commissioner of Admin., 391 Mass. 198, 204-
205 (1984) (declining to consider as legislative history
statements of legislators which plaintiff asserted showed their
punitive motive to deny him tenure).
9
Ass'n v. Boston, 435 Mass. 718, 719 (2002). In interpreting a
statute, our primary goal is "to effectuate the intent of the
Legislature in enacting it" (citation omitted). Water Dep't of
Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744
(2010). "[T]he plain language of the statute" is the "principal
source of insight into legislative intent" (quotations and
citation omitted). HSBC Bank USA, N.A. v. Morris, 490 Mass.
322, 332 (2022). "Ordinarily, where the language of a statute
is plain and unambiguous, it is conclusive as to legislative
intent" (citation omitted). City Council of Springfield, 489
Mass. at 187. However, where the statutory language is not
clear, "familiar principles of statutory construction guide our
interpretation" (citation omitted). Patel v. 7-Eleven, Inc.,
489 Mass. 356, 362 (2022). See Boston Police Patrolmen's Ass'n,
supra at 720 (court may consider "cause of [statute's]
enactment, the mischief or imperfection to be remedied and the
main object to be accomplished, to the end that the purpose of
its framers may be effectuated" [quotation and citation
omitted]). An overarching principle of statutory construction
requires courts to "take into account the interrelationship of
different statutes," with the goal of harmonizing other statutes
so that they do not "undercut each other" (citation omitted).
Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 620
(2019).
10
a. Language of the strong chief statute. The strong chief
statute states: "[The fire chief] may be removed for cause by
the selectmen at any time after a hearing." G. L. c. 48, § 42.
Tetreault reads that sentence to grant him a lifetime
appointment, and argues that by removing him without a hearing
and a finding of cause, the town violated the statute. He
contends that any provisions of his contract that conflicted
with that grant of a lifetime appointment were "impermissible"
and "unenforceable."
Under the language of the strong chief statute, G. L.
c. 48, § 42, Tetreault was entitled to a hearing and a
demonstration of cause if he was "removed" from the position of
fire chief. The word "remove" is not defined in the strong
chief statute. In the employment context, that word ordinarily
connotes a forced dismissal or termination. See Webster's Third
New International Dictionary 1921 (2002) (to remove means "to
force (one) to leave a place or to go away: as . . . to dismiss
from office"). See generally 4 E. McQuillin, Municipal
Corporations § 12:321, at 663 (2019) ("failure to reappoint an
officer upon the expiration of a definite term, and the
selection of another to fill the office does not constitute a
removal from office"). Here, Tetreault was not removed from his
position while the contract was in effect, but rather given
notice in accordance with his contract more than six months
11
before the end of its term that the board would not renew it.
See Dooling v. Fire Comm'r of Malden, 309 Mass. 156, 160-161
(1941) (fire commissioner's abolishment of fire chief position
pursuant to St. 1892, c. 182 was not removal of chief from
office under G. L. c. 48, § 58). Courts interpreting other
sections of the General Laws have distinguished nonrenewals of
contracts from removals and dismissals.6 Tetreault's employment
came to a natural end under the terms of the mutually agreed-
upon contract after the board voted not to renew his contract.
We conclude that the board did not remove Tetreault within the
meaning of the statute, and therefore no statutory violation
occurred.
Trying to find support for his claim that the strong chief
statute granted him a lifetime appointment, Tetreault points to
its last sentence, which states: "The appointment of the chief
of the fire department in any town or district having a
population of five thousand or less may be for a period of three
years." G. L. c. 48, § 42, as amended through St. 1981, c. 322.
6 See, e.g., Massachusetts Coalition of Police, Local 165,
AFL-CIO v. Northborough, 416 Mass. 252, 255 (1993) (selectmen's
"failure to reappoint [police officer] is not a 'removal' . . .
and therefore a failure to reappoint a police officer . . . does
not require a hearing and determination concerning just cause to
remove"); Downing v. Lowell, 50 Mass. App. Ct. 779, 782-783
(2001) (statutory safeguards available to school principals in
event of dismissal not available where "contract simply
expire[s]. . . . A dismissal is not the same as a nonrenewal of
a contract").
12
That language does not apply to Lynnfield, the population of
which has exceeded five thousand at all relevant times. But
from it Tetreault argues that, by permitting appointment of a
small-town fire chief for a three-year term, the Legislature
must have intended for larger towns' strong chiefs to have no
limit on their terms of office. We are not persuaded. That
sentence states that small towns "may" appoint fire chiefs for
three-year terms, and does not have a mandatory effect, even as
to small-town chiefs. See Shea v. Selectmen of Ware, 34 Mass.
App. Ct. 333, 335-336 (1993) ("'may' is not an apt word to
express a positive mandate . . . [and] [t]he use of the word
. . . imports the existence of discretion" [quotation and
citation omitted]). Beyond that, it says nothing about the term
of a chief in a larger town. See Beach Assocs., Inc. v. Fauser,
9 Mass. App. Ct. 386, 389-390 (1980) (courts "construe
permissive language of a statute as mandatory only if it appears
that the Legislature intended such an interpretation").
Besides looking at the wording of the strong chief statute,
we note what it does not say. The word "tenure," or similar
words that would import lifetime appointment, do not appear in
the strong chief statute, which focuses primarily on the
authority and duties of a strong fire chief. We are not at
liberty to "add words to a statute that the Legislature did not
put there, either by inadvertent omission or by design." Thomas
13
v. Department of State Police, 61 Mass. App. Ct. 747, 753
(2004), quoting Commonwealth v. McLeod, 437 Mass. 286, 294
(2002). See Harrison v. Massachusetts Bay Transp. Auth., 101
Mass. App. Ct. 659, 670 (2022). Had the Legislature intended
for the strong chief statute to bestow lifetime appointments on
fire chiefs, "[s]o important a matter would [not] have been
passed over in silence." Thomas, supra at 754, quoting Opinion
of the Justices, 308 Mass. 601, 613 (1941). Courts will not
read a promise of lifetime employment into a statute or contract
"without the strong proof and explicit expressions of intent
usually required to show such appointment." Parker v. North
Brookfield, 68 Mass. App. Ct. 235, 239 (2007). "[A] lifetime
contract [of employment] is so extraordinary that it takes
strong proof to establish one . . . [and] particularly explicit
expressions of intent are required to bind an employer to an
employment contract of extraordinary duration." O'Brien v.
Analog Devices, Inc., 34 Mass. App. Ct. 905, 906-907 (1993).
Tetreault argues that the strong chief statute must be read
in conjunction with G. L. c. 41, § 108O, which provides that a
town may enter into an employment contract that provides a fire
chief with benefits greater than those provided to other town
employees pursuant to local bylaws or ordinances. Section 108O
specifically states that such an employment contract may set
"conditions of . . . reappointment" for the fire chief, and that
14
"[n]othing contained in this section shall grant tenure to such
[fire chief]." Thus, § 108O does not affect our interpretation
of the language of Tetreault's contract permitting the town "not
to renew" the contract as meaning something different from
"remov[al] for cause" in the strong chief statute, G. L. c. 48,
§ 42.
b. Related statutes. In construing the strong chief
statute, we also look to related statutes. Where possible, we
must harmonize statutes "to give rise to a consistent body of
law." Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994).
First, we make note of the weak chief statute, G. L. c. 48,
§ 42A. As mentioned above, that statute provides that in a town
that has accepted it and that is not subject to the civil
service statute, the weak chief serves "at [the] pleasure" of
the selectmen. Contrary to Tetreault's argument, that language
in the weak chief statute does not require us to interpret the
strong chief statute to confer a lifetime appointment. See
Camargo's Case, 479 Mass. 492, 499-501 (2018) (definition of
"employee" in independent contractor statute did not apply to
worker's compensation statute, where statutes serve "different,
albeit related, purposes"). See also 2B N.J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction § 51.3 (7th
ed. 2012) (similarly construing statutes that relate to same
class of persons).
15
Second, in interpreting the strong chief statute, we
consider G. L. c. 48, § 58, inserted by St. 1916, c. 291. It
provides that in towns accepting its provisions, fire chiefs
"shall hold [their] office[s] continuously during good behavior
unless incapacitated by physical or mental disability to perform
the duties of [their] positions." The town has not accepted the
provisions of G. L. c. 48, § 58, and so, although Tetreault
cites to it in his brief, it does not apply to him. In fact,
that statute shows that the Legislature knew how to craft
language granting fire chiefs lifetime appointments, and
therefore the omission of similar language from the strong chief
statute was not an oversight.
Third, the tenure act, G. L. c. 41, § 127, inserted by St.
1973, c. 170, permits incumbents of most municipal appointive
offices, including fire chiefs, to apply for tenure after "at
least five consecutive years" of service. The tenure
application is subject to approval by vote of the board of
selectmen, and then by the town electorate. See G. L. c. 41,
§§ 129, 131. Although Tetreault cites to those statutes, they
do not apply to him, as he neither served five years nor applied
for tenure. Cf. Williams v. Selectmen of Wellfleet, 421 Mass.
438, 440-441 (1995) (construing G. L. c. 41, § 131, and
affirmative vote on town's ballot question to provide tenure to
its police officers with more than five years of service). The
16
language of those statutes, providing the board and the town
voters with a mechanism for granting tenure to most town
officers after five years, cuts against reading a lifetime
appointment into the strong chief statute.
Fourth, we note that the civil service statute, G. L.
c. 31, § 41, inserted by St. 1978, c. 393, § 11, provides that
employees who are subject to its protection "shall not be
discharged [or] removed" without just cause, notice, and a full
hearing. See, e.g., Brookline v. Alston, 487 Mass. 278, 292
(2021). That statute defines discharge to include "involuntary
separation" from employment. G. L. c. 31, § 1. Although
Tetreault cites to the civil service statute, as noted above, it
does not apply to the town's fire department. See note 1,
supra. From the language of the civil service statute, it is
apparent that the Legislature knew how to broadly define
discharge to encompass an involuntary separation from
employment, and therefore when it wrote the strong chief statute
to require hearings for the narrower category of chiefs "removed
for cause," G. L. c. 48, § 42, it did so intentionally.
Finally, an analogous statute applicable to police chiefs
sheds light on the Legislature's intent in the strong fire chief
statute. General Laws c. 41, § 21A, inserted by St. 1985, c.
210, provides that a police chief "shall not be removed from
such position until a hearing is held by the appointing
17
authority," and, "[f]or the purpose of this section only[,]
failure of reappointment shall be deemed to be a removal." The
language of that statute shows that the Legislature understood
the difference between removal and failure of reappointment, and
it chose to treat police chiefs differently from how it treated
fire chiefs in the strong chief statute.
c. Purpose of strong chief statute. In construing the
strong chief statute, we also consider its purpose. Tetreault
suggests that its purpose was to protect fire chiefs from
"political machinations" and to allow them independence in the
discharge of their duties. He argues that this purpose would be
undermined by our interpretation. We disagree. The removal for
cause and due process provisions of the strong chief statute
grant fire chiefs significant protection from "political
pressure and arbitrary separation" (citation omitted).7 School
7 To the extent that Tetreault contends that based on the
strong chief statute he had a constitutionally protected
property interest in his fire chief position, he makes the claim
only perfunctorily. This perfunctory treatment does not rise to
the level of adequate appellate argument, and we do not "pass
upon" the issue. See Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019). We note that because the
town did not violate the strong chief statute, no constitutional
violation resulted. See Smith v. Commissioner of Mental
Retardation, 409 Mass. 545, 549 (1991) ("State statute that
merely condition[s] an employee's removal on compliance with
certain specified procedures, does not establish a
constitutionally protected property interest in the position"
[quotation and citation omitted]).
18
Comm. of Brockton v. Civil Serv. Comm'n, 43 Mass. App. Ct. 486,
488 (1997).
Even if the strong chief statute could be interpreted to
provide fire chiefs with lifetime tenure -- a doubtful
proposition -- Tetreault waived any such statutory right by
entering into the employment contract. When he did so, he knew
that the contract had language and terms that conflicted with
what he professes was his belief about the meaning of the strong
chief statute. As we have said, however, nothing would prohibit
a fire chief from entering into an employment contract on terms
that differ from the strong chief statute, and G. L. c. 41,
§ 108O, expressly permits that course of action. Contrast
Parker v. EnerNOC, Inc., 484 Mass. 128, 133 (2020) (Wage Act,
G. L. c. 149, §§ 148, 148A, & 150, "forbids 'special contracts'
between an employer and employee that purport to exempt the
employer from the requirements of the act").
3. Town charter and personnel bylaws. For similar
reasons, we do not construe the language of the town charter to
confer lifetime tenure on Tetreault. Section 5-1(b) of the
charter authorized the board to appoint certain officers,
including all department heads and the fire chief, for
"indefinite terms." We defer to the town's reasonable
interpretation of its own charter. See Atkinson, 34 Mass. App.
Ct. at 666. The town construed indefinite terms to mean terms
19
that were not made definite by the charter, rather than as
conferring lifetime tenure on the many appointees to whom that
section applied. In any event, the town and Tetreault then
entered into the employment contract, which permitted either
party to decline to renew it upon proper notice. General Laws
c. 41, § 108O, provides that a fire chief's employment contract
"shall prevail over any conflicting provision of any local
personnel by-law, ordinance, rule or regulation."8
Nor do we construe the language of either the town charter
or the personnel bylaws to preclude the board from declining to
renew Tetreault's contract. Section 5-5-1 of the charter
provided that in order to "rescind" an appointment, the board
must give notice to the appointee of the reasons for removal and
the opportunity for a public hearing. Section 62-57(B) of the
personnel bylaws provided that employees may not be "discharged"
without written notice of the reasons and an opportunity to
rebut them. We defer to the town's reasonable interpretations
of its charter, see Atkinson, 34 Mass. App. Ct. at 666, and its
bylaws, see Styller v. Zoning Bd. of Appeals of Lynnfield, 487
Mass. 588, 600 (2021). Under those interpretations, just as the
8 We do not pause to consider whether the language of the
contract also prevails over that of the charter. In a
postargument filing, the parties agreed that "whether an
employment contract trumps a municipal charter . . . is not an
issue in this case."
20
town did not "remove" Tetreault within the meaning of the strong
chief statute, so too it did not "rescind" his appointment
within the meaning of the charter or "discharge" him within the
meaning of the bylaws.
Conclusion. The judgment is reversed. The case is
remanded to the Superior Court where a new judgment shall enter
declaring that the town did not violate the strong chief
statute, the town charter, or the town's personnel bylaws by
electing in 2018 not to renew Tetreault's contract.
So ordered.