Municipal Law News

TOWN OF BROOKLINE v. GERALD ALSTON (SJC)

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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.

RICHARD BROOKS v. DEPARTMENT OF CORRCTION

DOWNLOAD – the decision of the Appeals Court

Keywords –  Practice, Civil, Action in nature of certiorari, Statute of limitations. Limitations, Statute of. Imprisonment, Enforcement of discipline

In Brooks v, Department of Correction, issued today, the Appeals reversed a Superior Court decision regarding whether an appeal to Superior Court under the cert statute by a prisoner of discipline was timely when it was not filed within the 60 days after the decision was made, but rather was filed on the 60th day after the prisoner received the decision.  Notably, the Appeals Court opined that “[w]e conclude here that the last administrative action taken by the department was the issuance of the superintendent’s decision, which occurred no earlier than February 4, 2019, when the decision was served.[1]  The department regulation governing “Appeal Procedures” — which provides that “[t]he Superintendent shall normally decide an appeal within thirty (30) days of its receipt and notify the inmate in writing of the decision with supporting reasons,” 103 Code Mass. Regs. § 430.18(2) (2018)[2] — comports with our conclusion.”

TOWN OF CONCORD v. WATER DEPARTMENT OF LITTLETON et al (SJC

KeywordsWater, Municipal Corporations, Water supply, Special act. Statute, Construction, Repeal, Special law

[Excerpt] –

The Legislature passed the Water Management Act (WMA), G. L. c. 21G, in 1985, establishing a Statewide regulatory program for water withdrawals, prohibiting withdrawal of more than 100,000 gallons per day from any water source without a registration or permit.  See G. L. c. 21G, §§ 2, 4, 5, 7.  Under the WMA, an existing user of a water source could register their previous usage, and a new user had to apply for a permit.  G. L. c. 21G, §§ 2, 5, 7.  This case concerns whether the WMA impliedly repealed the special act, passed by the Legislature in 1884, that granted Concord the right to use Nagog Pond, located in Littleton and Acton, as a public water supply.  St. 1884, c. 201 (1884 act).  The 1884 act not only granted Concord the right to “take and hold” the waters of Nagog Pond for water supply purposes, but it also provided that Littleton, Acton, or both towns could take the waters of the pond if needed and that in the case of such taking, the water supply needs of Littleton and Acton “shall be first supplied” if “the supply of water in [Nagog Pond] shall not be more than sufficient for the needs of the inhabitants of the towns of Acton and Littleton.”  St. 1884, c. 201, §§ 2, 10.  In 1909, Concord exercised its rights under the 1884 act to take the waters of Nagog Pond, and it still uses the pond as a public water supply.  Littleton and Acton have not exercised their rights under the 1884 act, and the issue before us is whether those rights still exist after the passage of the WMA.

Concord commenced this action against the Littleton water department (Littleton), seeking declaratory relief in the Land Court, and Acton’s motion to intervene was allowed.  A judge concluded that the 1884 act was impliedly repealed by the WMA, thereby extinguishing Littleton and Acton’s rights under the 1884 act.  Our holding narrows the judge’s decision, as we conclude that the WMA impliedly repealed the provision of the 1884 act that provided that the needs of the inhabitants of Littleton and Acton “shall be first supplied.”  See St. 1884, c. 201, § 10.  We further determine that the WMA did not impliedly repeal the provisions of the 1884 act that granted Concord the right to “take and hold” the Nagog Pond waters, St. 1884, c. 201, § 2, and that provided Littleton and Acton with the right to take the water if needed, St. 1884, c. 201, § 10.

DOWNLOAD the SJC decision

MMLA Webinar: New Adult Use Marijuana Delivery Regulations Rolling into Town

Please join MMLA and MMA for an exciting discussion as we explore the new regulations governing the delivery of adult use marijuana. The panel will feature the Chair of Cannabis Control Commission, Steven Hoffman, Brockton’s City Solicitor, Megan Bridges, and Easthampton City Planner, Jeff Bagg. This event will provide a general overview of the new regulatory framework and how those regulations may impact municipalities. We will also examine what steps cities and towns may take to regulate this new use.  The webinar is scheduled for Thursday, March 18th, from 2:00 PM to about 3:30 PM.

This is a free webinar and open to all.   Registration is required, however.   To register, click on the following link:

Register in advance for this webinar:
https://us02web.zoom.us/webinar/register/WN_BuGDvNLWT56llbAT1YlX6A

After registering, you will receive a confirmation email containing information about joining the webinar.