Mendes v. City of Taunton

301 N.E.2d 580, 1 Mass. App. Ct. 486, 84 L.R.R.M. (BNA) 2776, 1973 Mass. App. LEXIS 493

• Court: Massachusetts Appeals Court
• Decided: September 27, 1973
• Status: Published

Opinions

Hale, C.J.

These three cases include two bills for declaratory and other relief: one brought by members of the fire department of the city of Taunton (the firemen’s case), and one brought by members of the police department of the city of Taunton (the policemen’s case). The city of Taunton and its mayor are defendants in each of these cases.² The third case is a bill brought by the city and its mayor for review (G. L. c. 30A, § 14) of a decision of the Labor Relations Commission (Commission) and was reported to this court to be argued with the policemen’s case, as both cases arise out of the same controversy.³

All three cases arise out of a refusal by the city of Taunton to pay increases in wages for the year 1972 which were called for by separate collective bargaining agreements executed in 1971 by the city of Taunton and Local 1391, International Association of Firefighters, AFL-CIO, and by the city and the Taunton branch of the Massachusetts Police Association. The firemen’s case and the policemen’s case were each submitted to the Superior Court on a case stated and were argued together. A decree was entered in each declaring, among other things, that the collective bargaining agreements were “in direct conflict with G. L. c. 44, § 33A,⁴ insofar as they relate to wages,” and that “[t] he city ordinances of 1971, purporting to implement the collective bargaining contracts for increased wages for policemen and firemen effective January 1, 1972, are invalid insofar as they relate to said wages.” The firemen and policemen appealed from the decrees.

The following facts appear from the case stated in the firemen’s case. On August 24, 1971, the then mayor of the city of Taunton and Local 1391 of the International Association of Firefighters, AFL-CIO, the collective bargaining representative of the city’s firemen, executed a contract intended to take effect as of January 1, 1971, and to terminate December 31, 1972. It contained detailed provisions governing wages, hours, and working conditions. The parties agreed to new wage schedules for the years 1971 and 1972, which reflected wage increases for 1971 over the schedule theretofore in effect and additional increases for 1972. On September 18, 1971, a supplemental appropriation was passed to fund the 1971 increases. On September 22, 1971, an ordinance was adopted by a two-thirds vote of the municipal council which purported to replace the lower wage schedule previously in effect with the new wage schedules for 1971 and 1972 and to repeal “all ordinances and parts thereof inconsistent [tjherewith.” The 1971 increases were paid that year retroactive to January 1. The 1972 budget submitted by the new mayor, a defendant in this case (1971 was an election year), included “inadvertently” an appropriation for firemen’s wages sufficient to implement the 1972 wage increases. The budget was passed by the council and approved by the mayor. The city refused to pay the 1972 increases; its contention, accepted by the trial judge, is that neither the collective bargaining agreement nor the September, 1971, ordinance could provide increases for the following year which would comply with G.L.c.44, § 33A.

The facts in the policemen’s case are not significantly different from those in the firemen’s case. The collective bargaining agreement executed by the city of Taunton and the Taunton branch of the Massachusetts Police Association was also to cover the two-year period commencing January 1,1971, and provided on its face for wage increases for the year 1971 and additional increases for 1972. It was executed on August 24,1971 (the date the agreement in the firemen’s case was executed), and on that date an ordinance was passed which purported to incorporate the 1971 and 1972 increases and to repeal inconsistent ordinances. On September 18, 1971, a supplemental appropriation to fund the 1971 increases was voted, and those increases were paid retroactive to January 1,1971. In 1972 the new mayor refused to include the 1972 increases in the budget, and the mayor and the city have since refused to implement those increases.⁵

1. General Laws c. 44, § 33A, as amended through St. 1960, § 301, provided in pertinent part that “no ordinance providing for an increase in the salaries or wages of municipal officers or employees shall be enacted . . . unless it is to be operative for more than three months during the financial year in which it is passed. ...” The present dispute is as to the validity of those portions of the ordinances adopted in 1971 which purported to grant additional pay increases which were not to go into effect until January 1,1972.

We observe that the judicial interpretation of § 33A leaves unclear whether it is the “increase in the salaries” or the “ordinance” which must be “operative” for more than three months. See Clements v. Treasurer of Cambridge, 324 Mass. 73, 74 (1949) (“The ordinance was obnoxious to that statute, because the increases were not to be operative during the year 1948”); Booker v. Woburn, 325 Mass. 334, 336 (1950) (“. . .the increase was not to be operative for more than three months ...”); Foley v. Lawrence, 336 Mass. 60, 63 (1957) (“.. . the ordinance ... could not have been operative for more than three months in the then current fiscal year”); Brucato v. Lawrence, 338 Mass. 612, 616-618 (1959); Doherty v. Woburn, 345 Mass. 523, 526 (1963).

The purpose of the three-month requirement in § 33A is “to prevent city councils . . . from imposing in one year upon the taxpayers of later years the burden of salary increases not to take effect until these later years.” Brucato v. Lawrence, supra, at 618. If § 33A required only that a portion of a pay increase be “operative” for more than three months in the year of the ordinance’s passage, then pay increase ordinances could surely derogate from the policy of promoting fiscal responsibility in municipal government by providing for insignificant salary increases in the year of passage and substantial salary increases in following years. To achieve the statutory purpose, we construe the second sentence of § 33A to require that both the ordinance and all salary increases provided therein must be in effect for more than three months during the financial year in which the ordinance is passed. It follows that the additional increases which were not to take effect until 1972 and which were voted by the outgoing 1971 council were invalid.

2. The plaintiffs also argue that the collective bargaining agreements made pursuant to G. L. c. 149, §§ 178G-178N, nevertheless impose upon the defendants an obligation to pay the 1972 salary increases. We disagree. Nothing in c. 149 exempts a salary increase under a collective bargaining agreement from the requirements of G. L. c. 44, § 33A. To the contrary, c. 149, § 1781, provides that “[ijn the event that any part or provision of any such agreement is in conflict with any law, ordinance or by-law, such law, ordinance or by-law shall prevail so long as such conflict remains . . ..” We are of opinion that § 33A is such a “law” and that we are not here presented with a situation in which the Legislature has authorized a municipality to adopt a new system of compensating its employees which is so inconsistent with the provisions of § 33A that the two provisions cannot stand. Cf. Brucato v. Lawrence, 338 Mass. 612, 618-619 (1959).

3. In the third case the Labor Relations Commission found that the mayor failed to bargain in good faith with the Taunton branch of the Massachusetts Police Association by reason of his having refused to submit a request for an appropriation funding the wage increases for 1972 included in the collective bargaining agreement with the policemen. The Commission ordered that the mayor, among other things, take whatever “steps may be necessary to fund and put into effect the wage increases agreed to in the collective bargaining agreement signed on August 24, 1971.” The questions raised in the report are fully answered in our decision in the policemen’s case.

Accordingly, in both the firemen’s case and the policemen’s case the decree of the Superior Court is affirmed. The case of City of Taunton & another v. Labor Relations Commission & others is remanded to the Superior Court for proceedings not inconsistent with this opinion.

So ordered.

This case was initially heard by a panel comprised of the Chief Justice and Justices Goodman and Grant and was thereafter submitted on the record and briefs to the other Justices, all of whom took part in this decision in accordance with the provisions of Rule 1:18 of this court.

2 The policemen’s case has also joined members of the municipal council as defendants.

3 The plaintiffs in the policemen’s case (together with the Commission) were made defendants in the third case.

4 Section 33A, as amended through St. 1960, c. 301, read: “The annual budget shall include sums sufficient to pay the salaries of officers and employees fixed by law or by ordinance. Notwithstanding any contrary provision of any city charter, no ordinance providing for an increase in the salaries or wages of municipal officers or employees shall be enacted except by a two thirds vote of the city council, nor unless it is to be operative for more than three months during the financialyear in which it is passed; provided, however, that in any year other than a regular municipal election year, ordinances may be enacted by a two thirds vote during the months of November and December providing for an increase in the salaries and wages of officers and employees, to become effective as of January first of the next ensuing year. No new position shall be created or increase in rate made by ordinance, vote or appointment during the financial year subsequent to the submission of the annual budget unless provision therefor has been made by means of a supplemental appropriation ...” (emphasis supplied). This section has been further amended by St. 1969, c. 849, § 61, which deleted the election year proviso. This change became effective July 1,1973. See St. 1971, c. 766, § 29.

5 The plaintiffs in the policemen’s case have filed a “Motion to Augment the Record on Appeal.” By this means the plaintiffs seek to have placed before us facts not in existence at the time the trial judge rendered his decision. The motion is denied.

7 Statute 1955, c. 358, excepted from this provision wage increases in non-election years made in December, and St. 1960, c. 301, added November. See 1955 Senate Doc. No. 675, Report of the Special Commission on Budgetary Procedure in Cities. See also St. 1950, c. 370, and St. 1969, c. 849, § 61.