June 23, 2020
Supreme Court
No. 2018-249-Appeal. (PC 17-2840)
The City of Cranston :
v. :
International Brotherhood of Police : Officers, Local 301, et al.
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222- 3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
International Brotherhood of Police : Officers, Local 301, et al.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Flaherty, for the Court. The plaintiff, the City of Cranston (the City), appeals
from a Superior Court judgment in favor of the defendants, the International Brotherhood of Police
Officers, Local 301 (the Union); Daniel W. Nuey, Sr. (Nuey); and the Municipal Employees
Retirement System (MERS). In his decision, the trial justice ordered the City to arbitrate the
Union’s grievance that was filed on behalf of Nuey, after the trial justice found that Nuey had not
retired from his position as a Cranston police officer and thus remained a member of the bargaining
unit. For the reasons set forth herein, we affirm the judgment of the Superior Court.1
I
Facts and Travel
On June 25, 2013, Nuey, a sergeant in the Cranston Police Department, left work early,
claiming that he was experiencing “uncontrollable levels of stress and anxiety[.]” As a result, and
1 During the pendency of the appeal, we granted the City’s motion to stay the order compelling arbitration. Because we are affirming the judgment of the Superior Court ordering the arbitration to proceed, it follows that we vacate the stay.
-1- with the agreement of the City, he began to receive injured-on-duty (IOD) benefits from the City.
Pursuant to G.L. 1956 § 45-21.2-9, Nuey later applied for an accidental disability retirement.
While Nuey was receiving IOD benefits and while his application for an accidental
disability retirement remained pending, he began working a second job. He was appointed to the
Mashpee Wampanoag Tribe Gaming Authority Board of Directors by the Mashpee Wampanoag
Tribal Council. As was required by the Department’s rules and regulations, Nuey sought
permission to engage in that employment while he was being compensated as a result of his IOD
status. However, the Department rejected Nuey’s request for outside employment because, it
claimed, for it to approve Nuey’s request, it needed to secure a medical opinion as to whether that
employment would impede Nuey’s recovery and thereby delay his return to work.2 Nuey,
undeterred, continued to serve on the Board of Directors of the Mashpee Wampanoag Tribe
Gaming Authority, and he did not provide the requested materials to the Department.3
Sometime thereafter, Nuey’s application for accidental disability retirement went before
the Disability Subcommittee of the Retirement Board of the Employees’ Retirement System of
Rhode Island (ERSRI), which also administers MERS. The Disability Subcommittee voted to
recommend that the Retirement Board deny Nuey’s application for an accidental disability
retirement, a recommendation that was accepted by the Retirement Board. Nuey then made a
request that the decision be reconsidered, and he also filed a second application, this time seeking
an ordinary disability retirement. Upon reconsideration, the Disability Subcommittee again voted
2 As part of its communication with Nuey, the Department requested that Nuey have his employer send a letter describing the role and responsibilities of his secondary employment so that the Department could seek out a medical opinion. However, it is clear from the record that Nuey never provided such a letter. 3 Although Nuey may have breached Department rules by working without permission, it cannot be disputed that the City has allowed injured officers to work while on IOD status. Therefore, Nuey’s work without permission may not be considered as indicative of retirement.
-2- to recommend that the Retirement Board deny Nuey’s application for an accidental disability
retirement. However, the Disability Subcommittee recommended favorably with respect to
Nuey’s application for an ordinary disability retirement. The Retirement Board voted to accept
that recommendation on March 15, 2017 and granted an ordinary disability retirement to Nuey.
Pursuant to § 45-21.2-9(f), Nuey then appealed the Retirement Board’s decision denying his
application for an accidental disability retirement to the Workers’ Compensation Court.4
However, he did not contest the Retirement Board’s decision to grant him an ordinary disability
retirement.
After his application for an ordinary disability retirement was granted, Nuey corresponded
with the City about the decision to grant his application for an ordinary disability retirement. In
that letter to the City, Nuey said that he would retire on the condition that the City make up the
difference between what he would receive from an ordinary disability pension as opposed to an
accidental disability pension.5 Relevant to this appeal, Nuey requested that he “be put on the City’s
pension roll effective end of day immediately[,]” and he stressed the conditional nature of his
offer.6 Although the City denied Nuey’s request for the supplemental pension, it nonetheless
overrode the conditional nature of his offer and accepted Nuey’s request to retire on an ordinary
disability. Nuey then sent another letter, this time through counsel, withdrawing his offer to retire
4 As of the date of the issuance of this opinion, the appeal is still pending before the Workers’ Compensation Court. 5 In his letter, Nuey referred to a Cranston ordinance. That ordinance says that, in a case in which a disabled police officer was denied an accidental disability retirement but awarded an ordinary disability retirement, the City “shall * * * [pay] directly to the [disabled] police officer” a supplemental pension to make up the difference between retirement allowance for an ordinary disability retirement and an accidental disability retirement. City of Cranston Code of Ordinances Ch. 2.20.080 (May 31, 2018). That ordinance was repealed in 2018 by Ordinance No. 2018-29, § 1 (Oct. 22, 2018). 6 We have attached a copy of this letter as Appendix A to this opinion.
-3- because the City had refused to accept his condition. The City, also through counsel, rejected
Nuey’s rescission, informing Nuey that the City would process his request to retire and remove
him from the payroll. In addition, the City also stated that Nuey was no longer entitled to IOD
benefits. A few days later, on May 12, 2017, the City put a stop to Nuey’s IOD benefits and
terminated his employment. At that time, the City, under the terms of its collective bargaining
agreement with the police union, also compensated Nuey for outstanding vacation, sick, and
personal days, as well as prorated longevity that he had accrued.7
The Union filed a grievance, alleging that the removal of Nuey from IOD status and from
his employment violated the collective bargaining agreement between the City and the Union. The
City promptly denied the grievance, after which the Union filed a demand for arbitration under the
collective bargaining agreement. In response, the City filed a complaint for declaratory relief
against the Union and Nuey, and it further sought to enjoin the Union from arbitrating the
grievance. The City argued, among other things, that, because Nuey was retired and was no longer
a member of the bargaining unit, the Union did not have standing to represent him. In its answer,
the Union denied that Nuey was retired; the Union also moved to compel arbitration.
A dispute soon arose about whether an arbitrator or the trial justice should make the
determination of whether the dispute was arbitrable. The trial justice, in a written decision, decided
that he, not an arbitrator, should decide the preliminary issue of whether Nuey was retired or not.
The trial justice reasoned that, if a determination was made that Nuey was in fact retired, then the
Union would lack standing to pursue a grievance on his behalf, thus rendering the Union’s
7 The City, in its motion to reopen the record, provided an affidavit attesting that Nuey was paid $63,346.33 for these items.
-4- grievance not arbitrable. However, he also reasoned that, if Nuey was not deemed to be retired,
he would remain a member of the Union and therefore the Union’s grievance would be arbitrable.
Before the trial, the Union moved to join MERS as a party because, in the Union’s view,
MERS had an interest in the outcome of the declaratory judgment action.8 The trial justice granted
the Union’s motion, and he further informed MERS that it would be “free to present evidence,
[and] to write brief[s],” but would not be required to do so.9
The parties agreed that the case should be tried upon an agreed statement of facts; however,
the trial justice also informed the parties that they were free to call witnesses.10 As part of the
agreed statement of facts, the parties attached specific exhibits. The City, the Union, and MERS
also filed memoranda to support their respective positions. As part of its memorandum, MERS
attached a form that all members of ERSRI, including Nuey, are required to complete in order to
receive an ordinary disability pension. That form (the MERS form), which was neither signed nor
completed by Nuey, was referred to in the agreed statement of facts and was designated as
“Employer Certification of Retirement and Final Wages,” and stated:
“By signing this form the member acknowledges that he/she has voluntarily made the decision to submit the completed form to [ERSRI] which includes the member’s date of termination and projected final wages and service credits through the date of termination. The member further understands that if he/she has made the determination not to terminate after submission of this form, he/she must notify ERSRI in writing immediately. After the member’s pension has been processed, no further contributions will be accepted after the date of termination provided on this form, and once the member has cashed a pension check, the member’s retirement is final and cannot be rescinded.” (Emphasis added.)
8 Initially the Union moved to join ERSRI as a party; however, at the hearing on that motion, the Union orally modified its motion to join MERS instead of ERSRI. 9 In both the Superior Court and this Court, MERS has declined to take a position as to whether Nuey’s grievance is arbitrable. 10 None of the parties chose to call witnesses.
-5- At trial, the City argued that Nuey had been retired as a matter of law when the Retirement
Board granted his application for an ordinary disability retirement. In the alternative, the City
argued that, even if Nuey had not been retired as a matter of law, Nuey had in fact retired as a
result of his conduct and activities. In contrast, the Union argued that the Retirement Board did
not possess the statutory authority to unilaterally retire police officers. In addition, it argued that
Nuey had not retired as a matter of fact either. For its part, MERS took no position as to the merits
of Nuey’s grievance or his rights under the CBA; however, MERS did take the position that it was
not its role to retire employees. In staking out that ground, MERS attached to its written arguments
the MERS form which retirees must complete and execute in order to verify separation of
employment as of a given date.
After reviewing the record before him, and after considering the arguments of the parties,
the trial justice ruled that Nuey had retired neither as a matter of law nor as a matter of fact. In his
decision, the trial justice relied not only on the agreed statement of facts and the attached exhibits,
but he also cited the MERS form as well as bringing to the case his own deep experience, acquired
from a long career in the public sector. After the trial justice issued his bench decision, the City
moved for the trial justice to reconsider his decision or, in the alternative, to reopen the record for
additional evidence. As part of its motion, the City argued that the trial justice erred when he
relied on the MERS form and on his own experience. The City also presented the affidavit of
Francesca Solitro,11 who attested to the amount of money, $63,346.33, that the City had paid to
11 According to her affidavit, Francesca Solitro is the Payroll & Benefits Administrator for the City of Cranston.
-6- Nuey as part of his termination payment. The Union objected to the City’s motions and moved to
compel arbitration.12
The trial justice denied the City’s motions to reopen the factual record and to reconsider
his decision. He also granted the Union’s motion to compel arbitration. A judgment in favor of
defendants was entered, followed by the City’s timely appeal.
II
Issues on Appeal
On appeal, the City presents an array of arguments. First, the City contends that the trial
justice erred when he determined that Nuey had not been retired as a matter of law as soon as the
Retirement Board granted his application for an ordinary disability retirement. The City further
maintains that the trial justice erred when he found that Nuey had not retired as a matter of fact, as
a result of his own conduct. The City also argues that the trial justice erred when he admitted and
considered the MERS form, which had been attached to the memorandum submitted by MERS.
Finally, the City urges that the trial justice erred in denying its motion to reopen the record and
reconsider his decision. We address each argument in turn.
A
Nuey’s Employment Status
The central dispute in this case is whether Nuey retired. If that is the case, the Union lacks
the standing to pursue a grievance on Nuey’s behalf, making the dispute nonarbitrable. Cf.
Providence School Board v. Providence Teachers Union, Local 958, AFT, AFL-CIO, 68 A.3d 505,
509 (R.I. 2013) (holding that a union did not have standing to represent retired employees because
12 It appears from the record that, at a hearing on the City’s reconsideration motion, the Union orally moved for an order compelling arbitration.
-7- retirees were not part of the bargaining unit). On the other hand, if Nuey was not in a retired status,
the grievance would be arbitrable because he remained a member of the bargaining unit.
Standard of Review
The parties in this case dispute whether our review of the trial justice’s decision should be
de novo or, in the alternative, whether we should apply a more deferential standard. However,
when we review a trial justice’s decision in a case that is based on agreed-upon facts, our review
is de novo. Arena v. City of Providence, 919 A.2d 379, 387 (R.I. 2007). “Questions of law and
statutory interpretation are [also] reviewed de novo by this Court.” Morse v. Minardi, 208 A.3d
1151, 1155 (R.I. 2019) (quoting Hudson v. GEICO Insurance Agency, Inc., 161 A.3d 1150, 1153
(R.I. 2017)).
Analysis
To begin, we must clarify the true inquiry governing the issue as to Nuey’s employment
status. The trial justice and the parties focus on two issues: (1) whether the Retirement Board can
retire an employee by granting the employee’s application for an ordinary disability retirement and
(2) if the Retirement Board lacks that authority, whether Nuey retired by his conduct. Clearly, if
the Retirement Board is vested with the authority to retire a municipal police officer, the inquiry
is over and we would be drawn to the inescapable conclusion that Nuey had retired.
a.
The Authority of the Retirement Board
The City argues that the Retirement Board has the authority to unilaterally retire a
municipal police officer after he or she applies for an ordinary disability retirement. To support
-8- this argument, the City targets the language in G.L. 1956 § 45-21-19 that says that “the retirement
board may retire the member for ordinary disability.”
Before we turn to that specific issue, however, we deem it helpful to describe the various
ways by which a municipal police officer might retire. Pursuant to chapter 21.2 of title 45 of the
general laws, a police officer who is a member of MERS and who seeks to retire may do so under
one of three alternatives. Each is addressed by a specific statutory provision. First, an officer can
apply for a service retirement, based on the officer’s age and length of service. Section 45-21.2-5.
Second, an officer who is permanently disabled as a result of an injury that was sustained in the
line of duty may apply for an accidental disability retirement. Section 45-21.2-9. Finally, and
relevant to this case, an officer whom the Retirement Board has determined to be permanently
disabled, but not as a result of an injury that was suffered in the line of duty, may apply for an
ordinary disability retirement. Section 45-21.2-7. Each type of retirement provides a different
benefit. Relevant to this case, an accidental disability pension is far more generous to the retiree
than is an ordinary disability pension.13
Under the statutory framework for an ordinary disability, an officer “upon the [officer’s]
application or upon application of the employer,” may “be retired on an ordinary disability
retirement allowance, subject to the restrictions set forth in §§ 45-21-19, 45-21-20, 45-21-23, and
45-21-24.” Section 45-21.2-7. Section 45-21-19 sets forth the specific requirements for an
ordinary disability retirement. That statute says “[a]ny [officer] * * * upon the [officer’s] own
application or upon application of the employer, or some person acting in the [officer’s] behalf”
may “apply for ordinary disability retirement[.]” Section 45-21-19(a). If medical examinations
13 For an ordinary disability retirement, a retired police officer receives his service retirement. General Laws 1956 § 45-21.2-8. However, for an accidental disability retirement, an officer would be entitled to two-thirds of his salary. General Laws 1956 § 45-21-22; see § 45-21.2-10.
-9- “show that the [officer] is physically or mentally incapacitated for the performance of duty and
ought to be retired,” then “the retirement board may retire the [officer] for ordinary disability.”
Section 45-21-19(c). However, that does not complete the process. That is so because, after the
Retirement Board grants an ordinary disability retirement, the officer must then complete various
tasks, including the execution and filing of certain forms. One of the key documents is the MERS
form on which the officer certifies that he has terminated his employment and the employer sets
forth the officer’s final wages so that the proper retirement allowance can be calculated.
From our review of the statutory framework, we have no hesitation in concluding that the
Retirement Board is not vested with the authority to unilaterally retire a police officer for, in this
case, an ordinary disability. Indeed, although it is necessary for the Retirement Board to grant an
employee’s application for an ordinary disability retirement before an employee may retire, the
Retirement Board neither retires the employee nor terminates his employment with his employer.
Not only does the text and structure of the retirement statutes mandate this result, but so does the
plain and ordinary meaning of the words “retirement” and “retire.”
In creating the Retirement Board, the General Assembly said that the Retirement Board
was established “for the purpose of providing retirement allowances for employees of the state of
Rhode Island[.]” General Laws 1956 § 36-8-2; see § 36-8-3. Section 36-8-1(16) defines
“retirement allowance” as “annual payments for life made after retirement under and in accordance
with chapters 8 to 10 of this title.”
The language of § 36-8-2 does not indicate in any way that the General Assembly endowed
the Retirement Board the statutory authority to unilaterally retire an employee. Instead, § 36-8-2
imbues the Retirement Board with the responsibility to, among other things, determine a covered
employee’s eligibility for retirement and to pay a retirement allowance, or a pension, to the eligible
- 10 - member of the system, but only after he has terminated his employment and retired. Nothing in
the language of chapter 8 of title 36 or chapters 21 or 21.2 of title 45 suggests that the Retirement
Board is cloaked with the authority to sever the employment relationship between an employer
and employee and thus to retire a municipal police officer. The issue of termination of employment
is critical because retirement, in our view, embraces two elements: the Retirement Board’s
determination of the employee’s eligibility, followed by the cessation of the employee’s
employment.
If the General Assembly intended to inextricably intertwine the Retirement Board in
personnel or administrative issues between employees and their employers, it would have spoken
with directness and clarity on that subject. Providence Teachers’ Union Local 958, AFT, AFL-CIO
v. Hemond, No. 2018-326-Appeal, 2020 WL 2537676, at *4 (R.I. May 19, 2020). This, it would
seem, is especially so in the relationship between municipalities and their police officers. Those
relationships are governed by a complex statutory structure, collective bargaining agreements,
individual departmental regulations and practices, and interpersonal relationships. The language
of § 36-8-2 makes it clear that the Retirement Board’s role is to determine eligibility of members
of the retirement system who express an intent to retire, to maintain the finances of the public
pension system, and to pay retirees the pensions that they have earned. It does not include the
right or duty of the Retirement Board to interpose itself in any way on the employer-employee
relationship.
The City focuses with myopic precision on the language “may retire the member for
ordinary disability” in § 45-21-19(c). In our opinion, however, that language, which the City views
in isolation, does not serve as a grant for the Retirement Board to terminate police officers from
their employment and thereby to retire them.
- 11 - Our opinion is buttressed by the meaning of the word “retirement.” Our review of the
retirement statutes reveals that the words “retirement” or “retire” are not defined. Although it is
our opinion that there is no ambiguity in the relevant statutory framework, we nonetheless may
look to the common meaning of a word, as defined in a dictionary, for its plain and ordinary
meaning. See Olamuyiwa v. Zebra Atlantek, Inc., 45 A.3d 527, 535 (R.I. 2012) (“It is well
established that[,] ‘when a statute does not define a word, courts will often apply a common
meaning as provided by a recognized dictionary.’” (deletion and brackets omitted) (quoting
Planned Environments Management Corp. v. Robert, 966 A.2d 117, 123 (R.I. 2009))). Black’s
Law Dictionary defines “retirement” as the “[t]ermination of one’s own employment or career,
esp[ecially] upon reaching a certain age or for health reasons[.]” Black’s Law Dictionary 1574
(11th ed. 2019) (emphasis added).14 That illustrates with clarity that voluntary retirement requires
that an employee make the decision to terminate his own employment and that that decision is not
ceded to anyone else.15
Finally, our opinion is further supported by the actions of the Retirement Board when it
passed on Nuey’s application for ordinary disability. The MERS form, sent to Nuey after the
Retirement Board granted his application, indicates not only that Nuey was required to certify that
he had terminated his employment, but also that, if he changed his mind about his decision to
retire, he would be required to notify the Retirement Board. The power to rescind the decision to
retire, according to MERS as articulated on the form, ends only if Nuey, in this case, was to cash
a pension check. This language can only lead to the conclusion that the Retirement Board itself
14 We note that although the statute uses the word “retire,” the word “retirement” is analogous. 15 Although Black’s Law Dictionary includes reference to involuntary retirement, that issue is not presently before us and therefore we do not address it. See H.V. Collins Company v. Williams, 990 A.2d 845, 847 (R.I. 2010) (“[W]e shall not address moot, abstract, academic, or hypothetical questions.”) (quoting Morris v. D’Amario, 416 A.2d 137, 139 (R.I. 1980))).
- 12 - does not consider that it has the authority to unilaterally retire a police officer or any other
employee. Indeed, the Retirement Board requires affirmative action by the employee before it will
even process the payment of a retirement allowance.
The City, to support its argument that an employee is retired upon the Retirement Board’s
granting of the employee’s application, draws this Court’s attention to our holdings in Costantino
v. Employees’ Retirement System of City of Providence, 111 R.I. 113, 300 A.2d 51 (1973), and
Marro v. General Treasurer of City of Cranston, 108 R.I. 192, 273 A.2d 660 (1971).16 However,
it is our opinion that neither of those cases has any applicability or relevancy to the case before us.
The City maintains that our holding in Costantino directly undergirds its position that the
Retirement Board effectively retires an employee when it grants the employee’s application. In
Costantino, we held that “once an employee” who was a member of the Providence pension
system, as it existed at the time, “submits his retirement application to the board and it is accepted,
his status is no longer that of a member of the system but rather he then becomes a beneficiary *
* * whose benefits will be paid at some future date.” Costantino, 111 R.I. at 115, 300 A.2d at 52.
However, Costantino is both factually and legally inapposite. Costantino involved a non-police
municipal employee, Costantino, who retired from his position but deferred the receipt of his
pension benefit until he attained a certain age. Id. at 113-14, 300 A.2d at 51-52. However, during
the course of his pension payment deferment, the General Assembly modified the pension
calculation for members of the system. Id. at 114, 300 A.2d at 52. That modification would have
16 The City also relies on several out of state jurisdictions to support its argument. See Williams v. City of Los Angeles, 281 Cal. Rptr. 21 (Cal. Ct. App. 1991); Morgan v. Board of Trustees of Teachers’ Pension and Annuity Fund, 1 A.2d 30 (N.J. 1938); People ex rel. Eberle v. LaGuardia, 21 N.Y.S.2d 239 (N.Y. Sup. Ct. 1940); Appeal of Moore, 492 P.2d 1091 (Okla. 1972). However, the City has not demonstrated any connection between how the retirement laws in those jurisdictions compare to the relevant Rhode Island retirement statutes. Therefore, the holding in those cases are not persuasive with regard to the issue before us here.
- 13 - entitled Costantino to a higher pension payment. Id. Costantino, who was no longer working for
the city, sought to claim the higher payment by arguing that he was still a member of the pension
plan, and not a beneficiary. Id. at 114-15, 300 A.2d at 52. At that time, the Court explained that
the statute meant that “any employee who becomes a member of the system and who during any
subsequent period of six consecutive years spends half that time off the city payroll automatically
loses his status as a member of the system.” Id. Costantino argued, in part, that this statute meant
that he had three additional years after he retired to be considered a member of the system. Id.
This Court rejected that argument and held that Costantino became a beneficiary of the system
when he retired, and not three years later when he began drawing funds. Id.
We are therefore confident that the City’s reliance on our holding in Costantino is
misplaced. Unlike the case before us now, there was never a question in Costantino about whether
Costantino had retired. Instead, the issue was whether a retiree could still claim to be a member
of the retirement system, even after retirement, because of a specific statute. Because both the
issue and the facts in that case are markedly different from those of this case, our holding in
Costantino has no bearing on the issues presented here.
The City also relies on our holding in Marro; however, our decision in Marro is wholly
irrelevant to the current controversy. The issue in Marro was whether the pension rights of a
disabled police officer were governed by the city’s charter or by state law. Marro, 108 R.I. at 196,
273 A.2d at 662. In other words, the issue had nothing to do with whether the General Assembly
gave the Retirement Board the authority to unilaterally retire a police officer as a matter of law.
See id.
The City’s next argument is that, if the Retirement Board does not have the authority to
retire a police officer, a police officer could evade retirement and thus continue to receive IOD
- 14 - benefits indefinitely, at great expense to taxpayers. In the City’s view, this would lead to an absurd
result. We do not agree.
We have said that “if a mechanical application of a statutory definition produces an absurd
result or defeats legislative intent, this Court will look beyond mere semantics and give effect to
the purpose of the act.” O’Connell v. Walmsley, 156 A.3d 422, 428 (R.I. 2017) (brackets omitted)
(quoting Commercial Union Insurance Co. v. Pelchat, 727 A.2d 676, 681 (R.I. 1999)). However,
nothing in our reading of this statutory scheme defeats the purpose of either chapter 8 of title 36
or chapters 21 or 21.2 of title 45. The plain language of chapter 8 of title 36 does not indicate that
the Legislature intended that the Retirement Board has the authority to retire employees on its own
or sever the employment relationship between members of the retirement systems and the relevant
municipalities. See Hemond, 2020 WL 2537676, at *5. Rather, it is clear to us that the
Legislature’s intent in enacting this statutory structure is that the Retirement Board is cloaked with
the authority to determine eligibility, manage the financing of the retirement system, and
compensate eligible members of the retirement system by paying the appropriate retirement benefit
after they have retired and ended their employment. Section 36-8-2; see Hemond, 2020 WL
2537676, at *5.
As to the City’s argument concerning IOD benefits, we do not agree with the City’s view
that police officers will be able to indefinitely collect IOD benefits as a result of the Retirement
Board not having this authority.17
17 Although the merits of the issue of whether the City improperly terminated Nuey’s IOD benefits is not before us and is the subject of the demand for arbitration filed by the Union, it should be noted that not only did the City voluntarily place Nuey on IOD status, but it has never sought to make use of its rights under the collective bargaining agreement to challenge Nuey’s status.
- 15 - b.
Has Nuey, by His Actions, Effectively Retired from the City?
The City also contends that Nuey had de facto retired by applying for a disability pension,
informing the City that he intended to retire, and accepting secondary employment without the
required permission of the City.18
In our view, the City’s arguments that Nuey’s actions evinced an intent to retire, or that he
had retired as a result of his conduct, are without merit. The critical aspect of this inquiry is
whether Nuey terminated his own employment, not whether at one time or another he indicated
his intent to do so. If an employee’s intent at any given time was the sole focus, then perhaps Nuey
could have been considered to be retired when he filed his application, because at that time he did
expressly demonstrate an intent to retire. Such a holding, however, would, in our opinion, fly in
the face of the statutes governing retirement.
It is undisputed that Nuey sent a letter to the City in which he expressed a present intention
to retire. However, that correspondence makes it clear that Nuey offered to retire on an ordinary
disability pension if, and only if, the City agreed to make up the difference between an ordinary
disability pension and an accidental disability pension pursuant to a municipal ordinance.
However, because the City rejected Nuey’s offer, the letter could not and did not effectuate Nuey’s
retirement. Nuey wrote:
“I am requesting the City to award the difference in pension benefits equaling 66 2/3% as stated in the City of Cranston Municipal Code * * *.”
“* * * I respectfully request to be put on the City’s pension roll effective end of day immediately upon the passage of this request * * *.”
18 As to the City’s arguments with respect to Nuey’s secondary employment, we already have addressed that issue supra.
- 16 - “With these terms in mind, please let this serve as notice of my retirement from the Cranston Police Department as of the end of day immediately following the passage of this request[.]” See Appendix A (emphasis added).
In two separate sentences, Nuey stressed that his notice of retirement was contingent upon the City
granting his request to have his ordinary disability pension supplemented by City funds. The City,
in its response, rejected Nuey’s condition but nevertheless retired him. Therefore, because the
City failed to accept the terms of Nuey’s offer, the letter did not effectuate his retirement.
B
MERS Evidence
The City next argues that the trial justice erred when he relied on the form attached to
MERS’s pretrial memorandum, because the form was not part of the agreed statement of facts.
However, we need not address this issue because we are of the opinion that the City has waived
any argument before this Court about whether the trial justice relied on facts not in the record.
This is so because the City has not engaged in any meaningful discussion of the issue in its briefing
to this Court. Rather, the City devotes some conclusory statements and a footnote to its arguments
concerning the admission of the MERS form. Therefore, the City has waived this issue before this
Court. See Broccoli v. Manning, 208 A.3d 1146, 1149 (R.I. 2019) (“This Court generally deems
an issue waived ‘when a party simply states an issue for appellate review, without a meaningful
discussion thereof.’” (quoting A. Salvati Masonry Inc. v. Andreozzi, 151 A.3d 745, 750 (R.I.
2017))).
C
Motion to Reconsider/Motion to Reopen the Record
Finally, the City argues that the trial justice erred in denying its motion to reconsider and
to reopen the record.
- 17 - 1
It should be noted at the outset that the Superior Court Rules of Civil Procedure do not
provide for a motion to reconsider. School Committee of City of Cranston v. Bergin-Andrews, 984
A.2d 629, 649 (R.I. 2009). However, this Court liberally interprets the rules and “look[s] to
substance, not labels.” Id. (quoting Sarni v. Meloccaro, 113 R.I. 630, 636, 324 A.2d 648, 651
(1974)). “Historically, we have allowed ‘motions to reconsider’ to be treated as motions to vacate
under Rule 60(b) of the Superior Court Rules of Civil Procedure[.]” Id. However, in reviewing
the City’s motion to reconsider, the City relied on Rule 52(b) of the Superior Court Rules of Civil
Procedure as grounds for requesting that the trial justice reopen the record and to reconsider his
decision in light of new findings. Inherent in a Rule 52(b) motion is the trial justice’s discretion.
Therefore, we will review the trial justice’s decision under an abuse-of-discretion standard.
It is our conclusion that the City’s argument that the trial justice abused his discretion by
refusing to reconsider his decision and to reopen the record is wholly without merit. Not only was
the trial justice well within his discretion to deny the City’s motion, but we also are in complete
agreement with the trial justice’s rationale.
Rule 52(b) permits a trial justice, upon a motion of a party filed within ten days after entry
of judgment, to amend his findings of fact or make additional findings of fact that in turn can be
the basis to amend the judgment. Here, the City proposed that the trial justice reopen the record
and consider an affidavit from Francesca Solitro, an employee of the City, attesting to the amount
of the termination payment the City paid to Nuey. The City argued that the trial justice should
- 18 - amend his findings concerning the termination payment to include that amount. The City further
argued that, in light of Nuey’s acceptance of that substantial payment, the trial justice should
reconsider his decision.
When he died the motion, the trial justice specified that he had considered the fact that
Nuey had received the termination payment. He also noted that the fact that such a payment was
made was set forth in the agreed-upon facts. However, the trial justice made it clear that the
amount of the termination payment that Nuey accepted was not relevant. We are also at a loss as
to the relevance of Nuey’s acceptance of the amount of the termination payment. We therefore
hold that the trial justice was well within his discretion in denying the City’s motion to reopen the
record.
As to the City’s other arguments concerning whether the trial justice should have
reconsidered his decision, most, if not all, are a rehashing of the arguments about Nuey’s retirement
status that already had been rejected by the trial justice. We have addressed those arguments, and
we need not address them again. Finally, whether the trial justice strayed beyond the bounds of
his considerable discretion when he declined to reconsider his decision does not affect our de novo
review of the issues on appeal.
III
Summary
We therefore conclude that Nuey did not retire because he did not terminate his
employment in the normal course and thereby effectuate his retirement by his actions. Thus,
because Nuey is not a retiree, the Union has standing to pursue a grievance on his behalf. Cf.
Providence School Board, 68 A.3d at 509 (holding that a union does not have standing to represent
retired employees because retirees are not part of the bargaining unit). Because the Union has
- 19 - standing, its grievance is substantively arbitrable and thus the trial justice did not err when he
granted the Union’s motion to compel arbitration.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court. The
record shall be remanded to the Superior Court.
- 20 - Appendix A
"A Nationally Accredited Agency"
5 Garfield Avenue Cranston, Rhode Island 02920 Phone (401) 942-2211 TDD 943-1410 Fax (401) 477-5113
March 21, 2017
Honorable Allan W. Fung, Mayor and Members of the Cranston City Council Cranston, RI
Dear Mayor Fung:
On March 15, 2017, I was awarded an "Ordinary Disability" after being denied an "Accidental Disability" by the RIState Retirement Board. As a result, I am requesting the City to award the difference in pension benefits equaling 66 2/3% as stated in the City of Cranston Municipal Code section 2.20.080, entitled "Injured on Duty Pension Disability Entitlement."
Therefore, I respectfully request to be put on the City's pension roll effective end of day immediately upon the passage of this request, in accordance with the Police Department Pension Ordinance and confract language.
With these terms in mind, please let this serve as notice of my retirement from the Cranston Police Department as of end of day immediately following the passage of this request and ask to be placed on the City Council Docket for the March 27th date of council meeting PRIOR to requested retirement meeting. Thank you.
Respectfully Submitted,
Daniel W. Nuey Sr.
cc:
City Clerk City Council President
- 21 - STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
The City of Cranston v. International Brotherhood of Title of Case Police Officers, Local 301, et al. No. 2018-249-Appeal. Case Number (PC 17-2840) June 23, 2020 Date Opinion Filed Suttell, C.J., Goldberg, Flaherty, Robinson, and Justices Indeglia, JJ. Written By Associate Justice Francis X. Flaherty Providence County Superior Court Source of Appeal Associate Justice Richard A. Licht Judicial Officer From Lower Court For Plaintiff:
William K. Wray, Jr., Esq. William M. Dolan, Esq. Attorney(s) on Appeal For Defendants:
Carly Beauvais Iafrate, Esq. Michael P. Robinson, Esq. Elizabeth A. Wiens, Esq.
SU-CMS-02A (revised June 2016)