Municipal Law News

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.)

SCOTUS: COUNTY OF MAUI, HAWAII v. HAWAII WILDLIFE FUND ET AL

[Excerpt from Memo of Amanda Kellar, Deputy General Counsel, International Municipal Lawyers Association (IMLA)]

Under the Clean Water Act (the “Act”), a special permit is required if any pollutants are added from a “point source” to “navigable waters.”  33 U.S.C. § 1362(12).  The issue in this case was whether the Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,” here, groundwater.  In a compromise 6-3 opinion authored by Justice Breyer, the Supreme Court concluded that the Act requires a permit when “the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” (emphasis added).

Click here to read Amanda’s full case summary, including a link to the full text of the Supreme Court’s decision. Also, read an excellent article authored by our own Olympia Bowker, of McGregor & Associates. Click here for the full text of Olympia’s article on the Clean Water Act and the Maui v. Hawaii SCOTUS decision.

Appeals Court: TOWN OF DRACUT v. DRACUT FIREFIGHTERS UNION

KeywordsArbitration, Collective bargaining, Authority of arbitrator, Fire fighters, Judicial review. Contract, Collective bargaining contract, Arbitration. Labor, Arbitration, Collective bargaining, Fire fighters. Municipal Corporations, Collective bargaining, Fire department. Public Employment, Collective bargaining. Fire Fighter

(Excerpt) –  “The Dracut Firefighter’s Union, IAFF Local 2586 (union), appeals from a judgment entered in the Superior Court vacating an arbitration award in favor of the town of Dracut (town).  The award arose from a grievance filed after the chief of the Dracut Fire Department (fire department) implemented a new policy preventing on-duty firefighters assigned to the east and west fire stations from attending union meetings at the central fire station.  The arbitrator found that the chief’s decision to impose a ban on travel by on-duty firefighters to union meetings at the central fire station from the east and west stations violated the parties’ collective bargaining agreement (CBA).  The Superior Court judge vacated the arbitration award on the ground that it exceeded the arbitrator’s authority by infringing on the nondelegable authority of the chief.  See G. L. c. 48, § 42; G. L. c. 150C, § 11 (a) (3).  We reverse.”

Click here for the text of the Appeals Court decision

SJC: JANE DOE v. WORCESTER PUBLIC SCHOOLS

KeywordsSchool and School Committee, Enforcement of discipline, Superintendent of schools. Injunction. Practice, Civil, Preliminary injunction

“The plaintiff, Jane Doe, a student at a public high school in Worcester, was suspended for 152 school days after an assistant principal found a small amount of marijuana and two makeshift pipes in the plaintiff’s locker.  When the plaintiff appealed from her suspension to the superintendent, the district’s school safety director, acting as the superintendent’s designee, shortened the suspension to 112 school days.  The plaintiff thereafter filed a complaint challenging the delegation of the superintendent’s statutory authority to hear and decide the plaintiff’s appeal.  The plaintiff also moved for a preliminary injunction seeking immediate reinstatement to school, which was granted.

The defendants seek a reversal of that decision, arguing that the motion judge erred in concluding that the plaintiff is likely to succeed on the merits of her claim because the relevant statute, G. L. c. 71, § 37H (d), permits the superintendent to delegate responsibility for hearing and deciding suspension appeals.  We disagree, and therefore affirm the judge’s order.”

Click here for the full text of the SJC decision.

Appeals Court: JOHANNA ORTIZ v. JOHN MORRIS

KeywordsState Police. Immunity from suit. Civil Rights, Immunity of public official. Federal Civil Rights Act. Practice, Civil, Civil rights, Summary judgment, Affidavit. Probable Cause

On what the Court described as a tragic set of facts, the Court affirmed the Superior Court’s grant of summary judgement to the defendant State Police officer base on qualified immunity.  A drug smelling dog singled the plaintiff out as possessing drugs, when in fact she possessed only beauty products. She served over a month’s incarceration before she was released.

“On appeal, Ortiz contends that summary judgment was improperly granted because there existed a dispute of material fact whether Morris knew, prior to arresting her, that field tests performed on the beauty products by the United States Customs and Border Protection (CBP) agents did not, in fact, show a positive result for the presence of cocaine.  In support of this allegation, Ortiz relied on her affidavit, in which she stated that Morris heard a CBP agent relay that the field tests were negative.  Because Ortiz’s affidavit was not based on personal knowledge, it was not the type of admissible evidence required on summary judgment.  The only admissible evidence showed that Morris had a reasonable basis to believe that he had probable cause to arrest Ortiz; accordingly, we affirm the judgment in favor of Morris on the basis of qualified immunity.”

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

SJC: SUSAN BOSS v. TOWN OF LEVERETT

KeywordsPublic Employment, Retirement benefits. Municipal Corporations, Insurance, Allocation of insurance premiums, Town meeting, Warrant for town meeting. Statute, Construction.

In this case the SJC discusses “whether the town’s adoption of G. L. c. 32B, § 9A, obligated it to contribute toward the premiums associated with retirees’ dependents; and second, if G. L. c. 32B, § 9A, is interpreted to include these premiums, whether it effectively was adopted at the town meeting on April 24, 2004. . . .       We hold that by adopting G. L. c. 32B, § 9A, the town was required to cover fifty percent of the premiums for both retirees and the retirees’ dependents.  We further hold that the town successfully adopted G. L. c. 32B, § 9A, at the town meeting held on April 24, 2004.”  The plaintiff prevailed at Superior Court, and the SJC affirmed.

Click here for the full text of the SJC’s decision.

SCJ: ROBERT GOLDSTEIN v. SECRETARY OF THE COMMONWEALTH

KeywordsElections, Ballot, Validity of nomination papers. Secretary of the Commonwealth. Constitutional Law, Elections.

Click here for the full text of the SJC’s decision.  This decision provides significant relief for Sept 1 primary ballot access.  The decision orders three changes relating to candidates seeking to appear on the September 1 state primary ballot only (no applicability to the general election or primary elections in any other year). The changes relate to a reduction in signature requirements by 50%, extension of deadline to May 5th, and provisions for electronic signatures.