Municipal Law News

MMLA Weekly Wednesday Open Conference Call

Next Open Conference CallWednesday, June 11th from 2:00 PM to 3:00 PM.   Topics for June 11th to be announced; but topics, as  usual, include a potpourri- open mike– raise your current hot issue and receive helpful feedback from your colleagues (this is a remote potpourri event much like we used to do from time to time when we met in person). Your suggestions……  Please respond with ideas, volunteers can attend the calls for free! (well, so can everyone else, but it sounds good). If you have particular info on this topic, please offer to be a discussion leader, contact Jim Lampke.

Conference Call Telephone Number is 712-451-0833, and the Conference Code is:  476090#  

[Note:  on joining the conference, in order not to interrupt on-going discussions, please do not introduce yourself when prompted to do so. But during the conference, if you wish to speak, press *6 to unmute yourself, and again *6 to mute when done. Thank you.]

Recording of 5/6/20 conference call ( Note: recording starts at 0:04:36 min and ends at 1:26:00 min)
Recording of 4/29/20 conference call (Uses of Public Funds During the Crisis, School Bus Contracts, Public Records Update re Death Certificates) (Advance the tab to 8 minutes, 10 seconds for the beginning of the recording.)
Recording of 4/22/20 conference call (Enforcement issues) (advance the playback 6 minutes 40 seconds to reach start)
Recording of 4/15/20 conference call
Recording of 4/8/20 conference call

Appeals Court: NANCY DALRYMPLE v. TOWN OF WINTHROP

KeywordsPractice, Civil, Summary judgment. Contract, Settlement agreement, Performance and breach, Construction of contract. Judgment, Implementing settlement agreement. Judicial Estoppel

The Appeals Court affirmed a Superior Court judgment which was in favor of the Town on its claim that the Defendant former employee repudiated a settlement agreement.  The Court noted ” We conclude that Dalrymple’s delay in signing the settlement for a period of nearly one year after the agreement was first made, while litigating claims that were barred by the release, constituted a repudiation of the agreement as a matter of law.  Accordingly we affirm the entry of judgment in favor of the town.” [Excerpt] – “The plaintiff, Nancy Dalrymple, appeals from a summary judgment entered in favor of the town of Winthrop (town), dismissing her complaint for breach of contract and unjust enrichment. . . .  On appeal, she contends that the town committed a breach of a settlement in a Federal court action.  The town maintains that Dalrymple repudiated the settlement agreement and pursued claims barred by its terms.  We conclude that Dalrymple’s delay in signing the settlement for a period of nearly one year after the agreement was first made, while litigating claims that were barred by the release, constituted a repudiation of the agreement as a matter of law.  Accordingly we affirm the entry of judgment in favor of the town.”

Kudos to MMLA Michele E. Randazzo who appeared on behalf of the Town of  Winthrop.   Click here for the full text of the Appeals Court’s decision.

Appeals Court: TOWN OF PLYMOUTH v. ROBERT J. POWER

KeywordsFirearms. Constitutional Law, Right to bear arms. Practice, Civil, Judicial review of license to carry firearms, Action in nature of certiorari, Judgment on the pleadings. District Court, Jurisdiction

[Excerpt] – Until paragraph (1 1/2) was added to G. L. c. 140, § 129B, effective January 1, 2015, a licensing authority could only approve an application for a firearm identification (FID) card or deny it on the basis that an applicant was a “prohibited person” under the statute.[2]  Paragraph (1 1/2), which is at issue in this case, addresses the possibility that a licensing authority might conclude that someone who is not a prohibited person is “unsuitable” to possess an FID card.  In that event, paragraph (1 1/2) does not empower the licensing authority to deny the FID card.  Rather, it provides that “the licensing authority may file a petition” “in the [D]istrict [C]ourt of jurisdiction” “to request that an applicant be denied the issuance or renewal of [an FID] card.”  The statute reserves to the District Court the decision whether the licensing authority has met its burden of proving by a preponderance of the evidence that the applicant is unsuitable.  G. L. c. 140, § 129B (1 1/2).

Click here for the full text of the Appeals Court’s decision.

Appeals Court: NEW BEDFORD HOUSING AUTHORITY v. K.R. et al

KeywordsSummary Process. Housing Authority. Municipal Corporations, Housing authority. Landlord and Tenant, Eviction. Violence Against Women Act. Practice, Civil, Summary process

The Appeals Court today issued a decision, New Bedford Housing Authority v.  K.R. et al, overturning a Housing Court’s approval of an eviction by a Housing Authority.  The Appeals Court based its decision on, among other factors, that it found the Housing Authority had given inaccurate information to the tenant about the  Violence Against Women Act (VAWA) and failed to live up to its obligations under that law, which provides, other other things, certain protections for tenants from evictions.  Click here for the full text of the Appeals Court’s decision.

Appeals Court: CITY OF NEW BEDFORD v. NEW BEDFORD POLICE UNION

KeywordsArbitration, Authority of arbitrator, Collective bargaining, Police. Labor, Arbitration, Collective bargaining, Police. Police, Collective bargaining, Authority of police chief, Assignment of duties. Public Employment, Collective bargaining

In the case of City of New Bedford v New Bedford Police Union, the Appeals Court affirmed today a Superior Court decision which vacated an arbitration award in favor of the union “which found the city of New Bedford (city) in breach of a provision of a collective bargaining agreement (agreement) with the New Bedford Police Union (union) ‘when it assigned officers to perform background investigations during their normal work hours in addition to their typical duties.'”  The Appeals Court held that “[C]ontrolling precedent compels the conclusion that the agreement provision, and thus the arbitration award, infringe on the nondelegable exclusive assignment authority of the city’s chief of police.” – It is not too often that an arbitrator’s award gets overturned.  This case is also significant as it affirms nondelegable exclusive managerial authority, even if there are conflicting provisions in the contract.  Congrats to the City of New Bedford and their attorney John C. Foskett, Esq.  for this win for local government.

Click here for the full text of the Appeals Court’s decision.

Coronavirus – Materials, Links, Resources

 MATERIALS, LINKS, OTHER RESOURCES-
MUNICIPAL LEGAL ISSUES RELATING TO THE COVID-19 VIRUS
(last updated 5/26/20)

From what you have shared with us on MMLA’s ListServ we have been able to identify and publicize information important to public sector attorneys and their municipal clients during this COVID-19 pandemic.  MMLA thanks all who have contributed to this effort.  Listed below are the contributions (through 5/26/20) from MMLA members and those joining us on our weekly open conference calls relating to COVID-19. We hope this has been a useful resource to all.  

Read more

2020 Public Construction Seminar & Annual Business Meeting

On Thursday, June 11, 2020 starting at 2:30 p.m., MMLA, through our organization’s Zoom account, will host our first virtual annual business meeting, followed from 3pm to 5pm by the 10th Annual Public Construction & Infrastructure Update, presented by Petrini & Associates, P.C.  This year’s program is very timely, examining the impacts of COVID-19 on public construction projects and providing helpful guidance and tips to municipal counsel and officials as our clients continue to deal with the many impacts of the pandemic.

Additional details will be announced as we get closer to the date; but for an overview of the seminar, click here:

SCOTUS – ATALNTIC RICHFIELD CO. v. CHRISTIAN (April 20, 2020)

“In a recent decision with far-reaching implications for owners of contaminated property, the U.S. Supreme Court ruled that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, often referred to as the federal Superfund law) does not preclude claims under state laws for further cleanup of contaminated sites.

The takeaway point is that Superfund does not prevent state court lawsuits over the same real estate that is a designated public or private federal Superfund site. EPA is not the only game in town, and the game is played not just in the federal courts.

In a split decision (7-2) dated April 20, 2020, the Supreme Court decided that CERCLA does not preclude claims in state courts seeking additional cleanup of Superfund sites beyond what the federal Environmental Protection Agency (EPA) has required, and/or damages or other relief under common-law torts like nuisance, trespass, and strict liability.

It is nuanced about Superfund not precluding state court jurisdiction over state law claims for more cleanup or larger damages than EPA has ordered or agreed, but there is a catch (extra cleanup of the same property within the Superfund site needs EPA prior approval) and the Court did not deal yet with whether Superfund preempts the Montana statute allowing such claims. Non-preclusion principles are not same as non-preemption precepts.” – (Quoted from an article written by Luke Leger (McGregor & Assocites).  For the full text of the article and a link the Supreme Court’s decision, click here.)