Municipal Law News

MMLA Webinar: Municipal Contracts

Massachusetts and federal laws affecting municipal contracts are myriad, complex and ever changing. Shady contractors tend to have very experienced counsel who know how easy it is to force a project rebid if their client wants another bite at the apple by finding that one required statutory provision that was omitted from a public project bid.  When was the last time you checked the air in your municipal contract tires?

Joe Cook, the CPO for the City of Northampton, and Chris Brown of Petrini & Associates, P.C. will present an informative webinar on municipal contracts.  They will cover statutory requirements for various types of contracts, including contracts which are funded in whole or in part by the state or federal government, and will discuss various provisions to protect our municipal clients, including insurance, bonds and indemnification clauses, and strategies to respond to typical changes that are requested by contractors and vendors on these and other issues.

Registration is open to anyone, but you must register.  Here is the registration link for the webinar that starts at 3:00 PM on Thursday, March 11th:

When: Mar 11, 2021 03:00 PM
Topic: Municipal Contracts Program – Cook and Brown

Register in advance for this webinar:
https://us02web.zoom.us/webinar/register/WN_RW_XNJIgTPus3tJ5h5f2RA

After registering, you will receive a confirmation email containing information about joining the webinar.

MARGARET DEWEESE v. GORDON COLLEGE (SJC)

KeywordsReligion. Constitutional Law, Freedom of religion. Anti-Discrimination Law, Religious beliefs, Employment. Employment, Discrimination

Today the Supreme Judicial Court issued an important case on religion and employment.  In Margaret Deweese-Boyd Vs. Gordon College & Others  The Court discussed the clash between the ministerial defense (which limits the government interference in religious areas) and the employment/discrimination laws (which protect employees).  The court found that the employment of the plaintiff was not as a minister and thus the ministerial defense was not applicable.  The SJC remanded the case back to the trial court for further proceedings consistent with this decision.  Mass Lawyers Weekly reported: The “ministerial exception” does not apply to an associate professor of social work at a private Christian liberal arts college, and she should be allowed to pursue her claims that the school unlawfully retaliated against her for her vocal opposition to the school’s LGBTQ+ policies, the Supreme Judicial Court decided on March 5.

DOWNLOAD the SJC decision.

SAID A. ABUZAHRA v. CITY OF CAMBRIDGE (SJC

DOWNLOAD  – full text of SJC decision

KeywordsEminent Domain, Validity of taking, Right to damages. Statute, Construction. Practice, Civil, Attorney’s fees, Costs, Interest, Frivolous action

In  Said A. Abuzahra v. City of Cambridge,  the Supreme Judicial Court yesterday addressed the issue of whether a property owner can accept a pro tanto offer and also challenge the validity of the taking.  A Superior Court judge had denied the plaintiff’s request for an order that the City pay the pro tanto.  Reversing the Superior Court, the SJC held that accepting a pro tanto award does not result in a waiver of a claim challenging the validity of the taking.

Link to Universal Hub’s on-line article – Click on:  Download Article

[Excerpt]  –   The issue presented is whether G. L. c. 79, the so-called “quick take” statute, permits a property owner to both accept a pro tanto payment for an eminent domain taking and simultaneously challenge the lawfulness of that taking.[2] Under c. 79, once a taking authority records an order of taking, the authority generally must tender a payment pro tanto to the property owner.  G. L. c. 79, § 8A.  However, the statutory framework is silent as to whether the acceptance of the pro tanto payment by the property owner precludes a challenge to the validity of the taking.

The plaintiff argues that the defendant city of Cambridge (city) must immediately tender him the full amount of the pro tanto payment, along with accrued interest since the time of taking, because G. L. c. 79 as it is currently written does not condition his acceptance of the pro tanto payment on waiving his right to challenge the taking of his real property.  The city disagrees, arguing that the statutory framework and case law prohibit a property owner from accepting a pro tanto payment so long as the property owner pursues a claim challenging the lawfulness of the taking.  According to the city, if the plaintiff challenges the taking, which is his statutory right, then he will have neither his property, which has been taken pursuant to the quick take statute, nor the pro tanto amount.

We conclude that G. L. c. 79 permits the plaintiff to both accept a pro tanto payment and simultaneously challenge the validity of the underlying taking.  We do so because of the enormous power that the quick take statute provides, which immediately transfers ownership of the property from the property owner to the taking authority independent of judicial processes; the clear requirement of a pro tanto payment; and the absence of any statutory provision waiving pro tanto payments when the taking itself is challenged.  Therefore, we affirm the order by a single justice in the Appeals Court, vacating a decision by a Superior Court judge that denied the plaintiff’s motion to compel payment of the pro tanto amount, and we remand the matter to the Superior Court for further proceedings consistent with this opinion.

Charles Zaroulis, MMLA Past President and Former Executive Director, Remembered

MMLA Executive Director Jim Lampke remembered his friend and peedecessor: “He was also my predecessor as Secretary-Treasurer.  More significantly, he was a close friend of mine, and to all of us.  You could always count on Charles to ask a good question or offer pertinent solutions to municipal legal issues.  He had an encyclopedic memory for municipal law and cases. Our Annual Meetings (and we will get back to them) will never be the same for many of us with Charles and Jackie as regular dinner companions.  I can’t remember a meeting they did not attend. Please keep Charles and his family in your thoughts and prayers.  May his memory be a blessing for his family and friends.” We expect to have more details later and will share them with you.
Click here for his Obituary.    [DOWNLOAD:  A few scenes from recent times with Jackie and Charles]

WILLIAM DONAHUE v. TRIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS (Appeals Court)

DOWNLOAD – Appeals Court Decision

APPEALS COURT UPHOLDS DISMALL OF FLSA, WAGE ACT, ETC. CLAIMS AGAINST COURT –

In Donahue v. Trial Court of the Commonwealth, the Appeals Court today upheld the dismissal of FLSA, Wage Act, overtime and common law claim against the MA Court system.  The Court found, among other points, that the Court was protected by sovereign immunity from those claims.  The decision provides a helpful discussion of sovereign immunity and how these statutes and the common law claims made cannot be made against the Commonwealth.

“Balancing the Scales” – Social Law Library Event – Recommended by MMLA

MMLA recommends for your attention an upcoming virtual event to be hosted by the Social Law Library ( MMLA’s web-host).  It is entitled “Balancing the Scales.”  It is scheduled for March 23rd.

Based on interviews conducted over two decades, Balancing the Scales is an insightful look at the story of women lawyers in America. The interviewees include a broad array of lawyers and judges across five generations, including Supreme Court Justice Ruth Bader Ginsburg, civil rights attorney Gloria Allred, and Roe v. Wade attorney Margie Pitts Hames. Interviews also include state Supreme Court and Appellate Court justices, women equity partners, minority women, associates, and students. They tell their own remarkable and often hilarious stories, from pioneers who paved the way for today’s law students, who don’t yet understand the difficulties they will face in the workplace. It explores how discrimination has shifted from overt to subtle, and why women are leaving the profession in droves. It highlights the deep cultural biases and the ingrained presumptions about both the “work” and the “life” parts of the work-life balance. Finally, the film explains why the promotion of women to top positions is good for both society and firms’ bottom lines.  Further details and registration information is available at Social Law Library’s website;  but here is a direct download link  to the SSL website:   DOWNLOAD LINK.

Panel
Hon. Amy Blake, 
Massachusetts Appeals Court; Hon. Janine Rivers, Probate and Family Court; Lisa Cukier, Esq., Burns & Levinson, LLP; Lizette Pérez-Deisboeck, Esq., Battery-Ventures; Sharon Rowen, Esq., Rowen & Klonoski, P.C., Filmmaker (moderator)

PSYCHEMEDICS CORPORATION VS. CITY OF BOSTON (SJC)

DOWNLOAD the SJC Decision

KeywordsIndemnity. Contract, Municipality, Indemnity, Construction of contract. Notice. Practice, Civil, Summary judgment. Waiver. Proximate Cause. Estoppel. Judicial Estoppel

The Supreme Judicial Court today issued an important decision concerning indemnification language in a municipal contract and the duty to indemnify.  In this case  the court discussed, among other issues, the indemnity language in a contract between the City and the plaintiff.  The Plaintiff had claimed that the City did not initiate the indemnification process properly and a Superior Court agreed in a summary judgment motion.  The SJC however reversed.  This is an important case on indemnification, defense, and hold harmless clauses.

[Excerpt] – “Where, as here, the parties do not specify the proper form of notice or what would constitute the opportunity to defend, we must decide what constitutes, as a matter of law, the provision of such notice and opportunity.  See Browning-Ferris Indus., Inc. v. Casella Waste Mgt. of Mass., Inc., 79 Mass. App. Ct. 300, 312 (2011), quoting Fay, Spofford & Thorndike, Inc. v. Massachusetts Port Auth., 7 Mass. App. Ct. 336, 342 (1979) (“Where the parties to a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances will be supplied by the court”).  We conclude that, in the absence of any specific contractual provisions by the parties, a simple statement of claims that are encompassed by the indemnification clause is sufficient to trigger the obligation to assume the defense; the notice need not be in writing or in any particular form of words, and the indemnitee need not explicitly ask for the assumption of the defense or to hold the indemnitee harmless.  Once notice has been received, the burden shifts to the indemnitor proactively to attempt to assume the defense.  To attempt proactively to assume the defense entails good faith efforts promptly to assume and control the defense of the claims asserted.[5]

Given this, and on the record before us, we conclude that Psychemedics did not meet its burden to establish by undisputed facts that it was entitled to judgment as a matter of law.  Accordingly, the allowance of summary judgment and the entry of a declaratory judgment in Psychemedics’s favor were incorrect.”

MMLA to Present at Upcoming MMLA Annual Convention

At Massachusetts Municipal Association’s upcoming annual convention scheduled for January 21-22, MMLA’s president Ellen Callahan Doucette and MMLA board of directors member Donna Brewer, of Miyares & Harrington, will be making presentations.  A casualty of the COVID-19 pandemic, the traditional gathering at Hynes Auditorium will be replaced by the now-familiar “virtual” meeting.  MMLA’s contributions include its traditional “Municipal Law Update.”  As in the past, there are numerous informative and timely workshops on a myriad of local government issues.

If you community is a member of the MMA, and most are, you can register for the virtual MMA Annual Meeting for the low price of $105.00, and attend the 2 days of programs and events.  Well worth it!
While MMLA will not be having its usual booth at the trade show, MMLA is supporting the MMA Annual Meeting and urges its members to sign up.
More information on the MMA Annual Meeting, including registration information, can be found at the MMA website ( www.mma.org) or at this Annual Meeting link-  https://www.mma.org/mma-annual-meeting-will-be-timely-and-engaging/ .