Municipal Law News

GEORGE DEMERIS v. TOWN OF FOXBOROUGH (App. Ct.)

In a case decided today (May 21, 20231) the Appeals Court affirmed a grant of summary judgment to the Town of Foxborough on a discrimination claim by a reserve police officer who was retired after he reached age 65.  The Appeals Court provides a good discussion of reserve officers and regular offices and the retirement age for both.  Congrats to MMLA member Doug Louison who represented the Town in this matter.
KeywordsPolice, Retirement, Assignment of duties. Municipal Corporations, Police. Police Officer. Practice, Civil, Summary judgment
DOWNLOAD the Appeals Court’s decision

“Town Meeting 101” – Free Webinar on 5.26.21

Town Meeting 101

Town Meeting 101 will be a lunch time panel focused on helping lawyers new to the world of Municipal Law learn the ins and outs of Town Meeting. We will cover practical tips for assisting Towns in Warrant, Article, and Motion preparation and for giving advice on the floor of Town Meeting. In addition, the presentation will feature a brief overview of the budget setting process for Towns. This is a must attend event! Bring your Chris Traeger level energy (as well as any questions you may have).

The MMLA New Lawyers Committee is sponsoring this free webinar on Town Meeting Process.  Although this program is geared for new lawyers, more experienced lawyers and anyone else should find the program helpful on the ins and outs of Town Meeting.

Panelists: Ivria Glass Fried, Esq.,, Miyares & Harrington; Kenneth Woodland, Esq., Department of Revenue, Division of Local Services; and Kelli Gunagan, Esq., Assistant Attorney General, Municipal Law Unit.

When: May 26, 12pm – 1pm

Where: Zoom

Register: https://us02web.zoom.us/webinar/register/WN_pNkCji9LSqiez82drhed7A 

Cost: Free

Why: Because it is Town Meeting season!

SCHOOL COMMITTEE OF CHELMSFORD v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD (App.Ct.)

KeywordsPractice, Civil, Interlocutory appeal. Administrative Law, Judicial review, Remand to agency. Commonwealth Employment Relations Board. Labor, Unfair labor practice.

DOWNLOAD – the Appeal Court’s decision.

In School Committee of Chelmsford vs Commonwealth Employment Relations Board, et al, issued today, the Appeals Court opined that a remand from an agency does not (generally) constitute final agency action ripe for an appeal.  The Court did note an exception where the agency intended its dismissal of a case to be the end of the agency’s involvement.

 

TOWN OF BROOKLINE v. GERALD ALSTON (SJC)

DOWNLOAD the decision of the SJC

KeywordsCivil Service, Decision of Civil Service Commission, Fire fighters, Reinstatement of personnel. Fire Fighter. Municipal Corporations, Fire department. Administrative Law, Substantial evidence. Employment, Discrimination, Termination. Public Employment, Termination, Reinstatement of personnel. Judgment, Preclusive effect. Anti-Discrimination Law, Race, Employment

[Excerpt] – The issue presented is whether the Civil Service Commission (commission) can consider evidence related to a racially hostile or retaliatory work environment when assessing whether a municipality had just cause to terminate a tenured civil service employee.  The underlying dispute in this case began with a racist comment, apparently on a misplaced telephone call. As Lieutenant Paul Pender was in a car driven by his son, he was cut off by a stranger.  Pender referred to the person as a “fucking n—-r.”  Unbeknownst to him, Pender had not properly hung up from a previous call, and he left a record of what he said on the voicemail of fellow firefighter Gerald Alston.  Alston is African-American; Pender, his supervisor at the time, is Caucasian.  A tumultuous six years of litigation and acrimony ensued, culminating in 2016 with Pender receiving his third promotion since leaving the voicemail and Alston being fired by the town of Brookline (town).  When Alston challenged his termination before the commission, the commission first summarily concluded that the town had just cause to terminate Alston due to his extended absence from duty and his failure to cooperate with the town’s return to work requirements.  Alston successfully challenged that ruling in the Superior Court, and the matter was remanded to the commission for an evidentiary hearing.  After that hearing on remand, the commission concluded that there was not just cause for the discharge, as the decision to terminate Alston was “arbitrary, capricious, and in violation of [his] rights under the civil service law to be treated fairly ‘without regard to . . . [his] race.’”  The commission ordered his reinstatement, and that decision was affirmed by the same Superior Court judge.  The town appealed, and we transferred the matter to this court on our own motion.

We first conclude that the commission can consider, in the context of its analysis whether an employee was fired without just cause in violation of basic merit principles, evidence of discriminatory or retaliatory conduct that is more typically addressed in the context of a claim under G. L. c. 151B.  The relevant statutes ensure that civil service employees are not terminated without just cause and that their termination be consistent with basic merit principles.  A civil service employee whose unfitness is determined to be caused by racist remarks and retaliation in the workplace and the employer’s arbitrary and capricious response to such remarks and retaliation may not be terminated by the employer responsible for causing the unfitness.  Applying this standard, we conclude that the commission’s determination that the town lacked just cause to discharge Alston is supported by substantial evidence.  Finally, as described more fully infra, we reject each of the town’s arguments as to why the commission exceeded its authority and lacked substantial evidence for its decision.

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COBBLE HILL CENTER, LLC v. SOMERVILLE REDEVELOPMENT AUTHORITY (SJC

DOWNLOAD:  SJC Decision

[Excerpt] –   The Somerville Redevelopment Authority (SRA) took by eminent domain 3.99 acres of land from Cobble Hill Center LLC (Cobble Hill) as a demonstration project under G. L. c. 121B, § 46 (f).  The issue presented is whether the broad eminent domain powers granted to redevelopment authorities by G. L. c. 121B, § 11 (d), include demonstration projects under § 46 (f).  Relying on the express language of the statute, we conclude that they do.  We further define “demonstration” in accordance with its plain meaning and general use as requiring the test or development of a different, new, or improved means or method.  We conclude that the demonstration project plan at issue — designed to “serve as a model, innovative approach to community development that combines a public use [a new public safety facility] successfully integrated with private development” and public transit to eliminate blight — satisfies this definition for the purposes of § 46 (f).  Finally, we conclude that takings satisfying the requirements of § 46 (f) are constitutional.

MASSACHUSETTS PORT AUTHORITY v. TURO, INC (SJC

The Supreme Judicial Court today issued its decision in Massachusetts Port Authority v. Turo, et al (including 100 John Doe defendants) regarding Massport’s efforts to restrain the unregulated picking up and dropping off of passengers at Logan Airport, contrary to regulations adopted by Massport.  “Turo describes itself as ‘an online platform that operates a peer-to-peer marketplace connecting [hosts] with [guests] seeking cars on a short-term basis.’”  Massport sought and obtained an injunction prohibiting this activity.  Turo challenged the injunction on various grounds, including that it was immune from suit under 47 U.S.C. § 230(c)(1), commonly known as § 230 of the Communications Decency Act (CDA).  While upholding the Superior Court, the SJC remanded it so that a portion of the injunction could be modified to avoid confusion. Among other things, the case has a good discussion on the CDA, aiding and abetting conduct and the  issue of irreparable harm and property ownership

DOWNLOAD:  SJC decision

MMLA Webinar – “Single Justice Practice in the Massachusetts Appeals Court”

Zoom Webinar – Thursday, April 29th, 12:30 – 2:00 PM

One of the unique features of the Massachusetts appellate system involves single justice practice in the Appeals Court.  Municipal counsel may consider petitioning the single justice for relief from a decision involving an injunction or interlocutory order, such as the denial of a motion to dismiss, summary judgment motion, or discovery order.  However, petitions are granted only in limited circumstances and only certain relief is available, and counsel must comply with specific requirements for filing a petition. This program will provide an overview of single justice practice from the perspective of the Appeals Court.  Even if you do not regularly practice in the Appeals Court, this is a topic you need to know about now, and before you get served with a motion for interlocutory relief.  Program participants will include Appeals Court Associate Justice John Englander, Clerk Joseph Stanton, and Assistant Clerk Anne Thomas.  Program orgaizer and MMLA Executive Board member Brandon Moss will moderate.

Registration for the webinar and payment of a $10.00 registration fee are required to attend. To register and pay the $10.00 registration fee, please go to the following link:

https://us02web.zoom.us/webinar/register/WN_TdclgReITxGef7cxzyaxTw 

After registering, you will receive a confirmation email containing information about joining the webinar. If you have any questions, etc., please contact Jim Lampke at 617-285-4561 or email him at:  james.lampke@lampkelaw.com

Click on this link for Program Materials (hyperlinks) and Panelist Bios

ITHACA FINANCE v. FRANCISCA LEGER (App. Ct.

DOWNLOAD – decision of the Appeals Court

Keywords:  Real Property, Tax title, Foreclosure of tax title. Taxation, Real estate tax: tax taking, Real estate tax: foreclosure of tax lien, Real estate tax: foreclosure of right of redemption. Practice, Civil, Relief from judgment. Judgment, Relief from judgment. Due Process of Law, Notice, Taking of property. Notice, Tax taking, Foreclosure of mortgage. Mail

In Ithaca Finance, LLC vs. Franscisca Leger, the Appeals Court today upheld statutory notice mailed by the Land Court to the property owner about the tax foreclosure proceeding was sufficient notice.  The property owner sought to challenge, after the one year redemption period, the tax foreclosure, claiming an exception to the one year redemption period due to alleged “violation of its rights to substantive or procedural due process”.  A Land Court judge had vacated the judgment finding a violation of due process.  The Appeals Court reversed, finding that the statutory notice sent by the Land Court to the property owner was sufficient due process notice.