Click for Archived Newsletters

Spring 2007 - Developments in Municipal Law

We offer this newsletter as a free informational service to our clients and others interested in developments in municipal litigation. This newsletter does not provide legal opinions or legal advice; please address specific inquiries to our firm. For questions, suggestions, or copies of materials referenced, please contact John J. Davis or John J. Cloherty III.

ARTICLES  

Case Comment: Federal Court Upholds Use of Same-Sex Books in Public Schools in Parker v. Hurley, 474 F.Supp.2d 261 (D. Mass. 2007) 

Case Comment: Municipalities Found Liable for Interest Payments on Chapter 41 Awards in Todino v. Town of Wellfleet, 448 Mass. 234 (2007) 

Case Comment: Parameters of USERRA Clarified in Velazquez-Garcia v. Horizon Lines Of Puerto Rico, 473 F.3d 11 (lst Cir. 2007)

Case Comment: Superior Court Allows MBTA to Advertise on its Property Free From Local Restrictions in MBTA v. City of Somerville, Suffolk Super. Ct. , C.A. No. 06-4616 (April 2007)

Case Comment: Grandfather Clause Saves Grossly Undersized Lots in Rourke v. Rothman, 473 F.3d 11 (lst Cir. 2007)

Firm Announcement: PD&P Names New Partner

Public Schools Permitted to Use Same-Sex Books:
Parker v. Hurley, 474 F.Supp.2d 261 (D. Mass. 2007).

In an important decision concerning free exercise of religion and the rights of parents to direct the upbringing of their children, Judge Mark Wolf, sitting in the United States District Court in Boston, recently dismissed a Complaint challenging the right of the Lexington Public Schools to use books in kindergarten, grade one and grade two, that depict same sex couples. Parker v. Hurley , 474 F.Supp.2d 261 (D. Mass. 2007). The defendants – the Town of Lexington and various Lexington school officials – were represented by Pierce, Davis & Perritano, LLP.

The plaintiffs were two sets of parents who sent their children to the Estabrook Elementary School, a public school in the Town of Lexington . In their Complaint, plaintiffs described themselves as "devout Judeo-Christians" who sincerely believe that marriage is a union between a man and a woman only, and that "labeling marriage to be otherwise is immoral." While enrolled in kindergarten, grade one and grade two, plaintiffs' children were exposed to three books used by the Estabrook Elementary School which, plaintiffs claimed, "denigrated" their religious and moral beliefs. The first book, Who's In A Family, contained illustrations of different types of families, including children with parents of different genders and children with parents of the same gender. The second book, Molly's Family, taught a lesson about different kinds of families, focusing on a student whose parents were a same-sex couple. The third book, King and King, was a fairy tale about a prince ordered by his mother, the queen, to find a bride. After rejecting several princesses as unsuitable, the prince ultimately finds another prince with whom he falls in love. The two princes then marry and live happily ever after.

Plaintiffs claimed violations of their constitutional rights to direct the moral upbringing of their children and to the free exercise of their religion. In support of such claims, plaintiffs alleged that defendants' selection of the three books was done "with the specific intention to indoctrinate young children into the concept that homosexuality and homosexual relationships or marriage are moral and acceptable behavior." In support of their motion to dismiss, defendants cited the legitimate governmental interest in exposing students to issues of tolerance and diversity in a respectful educational environment free from discrimination based on race, gender, color, religion, disability or sexual orientation. The incidental exposure of plaintiffs' children to materials with which plaintiffs disagreed did not, argued the defendants, outweigh this legitimate governmental interest. Nor were plaintiffs entitled to control the flow of information and curriculum in public schools, or to censor materials inconsistent with their religious beliefs.

In a 38 page decision issued on February 23, 2007, Judge Wolf rejected plaintiffs' constitutional claims in sweeping language supportive of the Lexington defendants. "Under the Constitution," he wrote, "public schools are entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy." 474 F.Supp.2d at 264. This includes diversity based upon, among other differences, sexual orientation. In light of our nation's history of individual and official discrimination against gays and lesbians, it is reasonable, the Judge concluded, for public educators " to teach elementary school students about individuals with different sexual orientations and about various forms of families, including those with same-sex parents, in an effort to eradicate the effects of past discrimination, to reduce the risk of future discrimination and, in the process, to reaffirm our nation's constitutional commitment to promoting mutual respect among members of our diverse society." Id . The District Court accordingly dismissed plaintiffs' federal constitutional claims on the merits, but dismissed plaintiffs' state law claims "without prejudice" to be re-filed (should plaintiffs so desire) in state court.

In a jurisdiction that expressly endorses marriage between same-sex couples, Goodridge v. Department of Public Health, 440 Mass. 309 (2003), Massachusetts public educators can take heart that, at least according to Judge Wolf, they are free to use teaching materials in their classrooms that expose students to same-sex relationships without thereby exposing themselves to civil liability. Indeed, based on the language of the Parker decision, Judge Wolf applauds such teaching efforts. On February 28, 2007, five days after Judge Wolf issued his decision, the plaintiffs filed a notice of appeal to the First Circuit. Thus, the Parker case is not over yet.

* * *

Public Employers Not Immune From Pre-and Post-Judgment Interest on Section 111F Back Payments: Todino v. Town of Wellfleet, 448 Mass. 234 (2007).

The Massachusetts Supreme Judicial Court recently held that incapacitated public safety officers who are wrongfully denied injury leave pay pursuant to General Laws, Chapter 41, Section 111F (leave with pay for incapacitated employees) are entitled to pre-judgment interest and post-judgment interest on back compensation owed to them. Section 111F provides that incapacitated police officers and fire fighters injured on duty, through no fault of their own, lose no pay as a result of their disabilities. The statute requires that such injury leave pay be paid at the same time and in the same manner as regular compensation. The statute, however, is silent as to whether the incapacitated officer is entitled to interest when payment is delayed or terminated.

In Todino v. Town of Wellfleet, the plaintiff was a special police officer for the Town of Wellfleet and was struck by a motor vehicle while directing traffic in July 1997. The accident left Officer Todino incapacitated. The Town subsequently placed her on leave with pay pursuant to Section 111F. While Officer Todino was receiving pay pursuant to Section 111F, the Town's physician suggested that accidental disability retirement might be appropriate. The police chief then attempted to gather information from Officer Todino and her treating physician regarding her ability to return to work. When plaintiff's physician did not respond to the chief's questionnaire, the chief attributed this failure to Officer Todino and concluded she was disobedient. Because of this disobedience, the chief terminated Officer Todino's Section 111F pay and fired her on December 15, 1998.

In October 2002, a trial judge found that the chief's actions were improper and entered a judgment ordering Officer Todino's reinstatement and retroactive Section 111F benefits. After a failed appeal, Wellfleet paid Officer Todino her lost wages, which were in excess of $170,000, without interest. Officer Todino then filed a motion in superior court seeking interest payments on the retroactive pay. Her pre-judgment interest, based on the time between the initial denial of benefits and the date of the trial court's decision, amounted to approximately $69,000. Meanwhile, her post-judgment interest, based on the time between the trial court's decision and the municipality's actual payment of the benefits, was nearly $61,000. The superior court judge denied the motion because there was no statutory authority entitling Officer Todino to the interest. The Appeals Court reversed, concluding that even in the absence of statutory language, "the statute effected a waiver of sovereign immunity for payment of interest." The Supreme Judicial Court then granted further appellate review.

Generally, the sovereign immunity doctrine dictates that a public employer cannot be sued in Massachusetts without the consent of the Legislature, and in instances where such consent is granted, public employers can only be sued to the extent expressed in the enabling statute (e.g. , Massachusetts Tort Claims Act).

In Todino, the SJC wrote, "[i]f sovereign immunity is not waived expressly by statute, we consider whether governmental liability is necessary to effectuate the legislative purpose." Section 111F is silent as to whether a public employer must pay interest on delayed statutory payments due to an employee. In reaching its decision, the SJC looked to the Legislature's intent to provide "timely compensation" to incapacitated public safety officers. On the strength of that intent, the SJC held that "the recovery of interest is necessarily implied by the potent language of § 111F that requires timely payments and prohibits reduction of pay." Without the addition of pre- and post-judgment interest, the SJC wrote that, "the ultimate payments to the employee would be incomplete as well as untimely and the over-all statutory scheme would be defeated."

Public employers continue to remain immune from the imposition of pre-judgment interest under the Massachusetts Tort Claims Act. Recently, however, in DeRoche v. Massachusetts Comm'n Against Discrimination , the SJC held that public employers are liable for pre-judgment interest on damages for back pay awarded under Chapter 151B. 447 Mass. 1, 12 (2006). Pre-judgment interest is an available remedy under Section 5 of Chapter 151B. But with the holding in Todino , the SJC has removed the shield of sovereign immunity for public employers from the payment of interest under a statute that does not expressly authorize such payments. As such, the SJC appears to expand the scope of awardable interest. Municipalities need to take this risk into consideration when considering the denial of Section 111F benefits.

* * *

Burden of Proof Under USERRA is Clarified: Carlos Velazquez-Garcia v. Horizon Lines of Puerto Rico 473 F.3d 11 (lst Cir. 2007).

In a case of first impression, the First Circuit Court of Appeals in Carlos Velazquez-Garcia v. Horizon Lines of Puerto Rico, 473 F.3d 11 (lst Cir. 2007), decided what it referred to as the "proper allocation of the burden of proof" in cases brought under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), a federal statutory scheme designed to protect men and women in the military from employment discrimination. 38 U.S.C. §§ 4301, et seq. Relying on the plain language of the statute and its legislative history, the Court held that an employee need only show that his/her military service was "a motivating factor" in order to prove liability, unless the employer can prove that it would have taken the same adverse employment action regardless of the employee's military service. Stated differently, the Court observed that "the issue under USERRA is not whether an employer is 'entitled' to dismiss an employee for a particular reason, but whether it would have done so if the employee were not in the military." The Court noted that this two-pronged burden-shifting analysis is "markedly different" from the three-pronged burden-shifting analysis in Title VII (employment) actions.

Horizon Lines is in the business of ocean shipping and transportation, and operates a marine terminal in San Juan . In September 1999, Carlos Velazquez-Garcia began working at the terminal for Horizon's predecessor as a yard supervisor with supervisory responsibility over the terminal's stevedores. Velazquez-Garcia enlisted as reservist in the marines in December 2002. Velazquez-Garcia completed basic training and thereafter continued to report for monthly weekend training sessions, as well as an annual two-week intensive training program. Velazquez-Garcia testified that his superiors were unhappy with having to reschedule his shifts due to his military commitments and that he was made the butt of jokes at work where co-workers referred to him as "G.I. Joe". During his periods of military service, Horizon continued to pay his salary in full. As a result, as an employer is allowed to do under USERRA, when Velasquez-Garcia returned to work, Horizon would deduct from his paycheck amounts necessary to offset his military income for those periods in which he was paid both by the military and by Horizon.

Around February 2004, Velazquez-Garcia started a side business cashing checks of Horizon employees; previously, stevedores had been paid in cash. In September 2004, Velazquez-Garcia was summarily fired without reason or warning or any other prior discipline. He was told that his check-cashing business was in violation of Horizon's Code of Business Conduct ("Code"), something Velazquez-Garcia had never seen before. Notably, according to Velazquez-Garcia, Horizon waited to fire him until after he had paid back the money he owed Horizon for the periods his civilian pay was supplemented by his military pay. Once Velazquez-Garcia had repaid this amount to Horizon, he claimed Horizon found a "pretext" to firm him, namely the separate check-cashing business.

In reversing the District Court's award of summary judgment to Horizon, the Court held that the "reasonableness" of Velazquez-Garcia's failure to report the "G.I.Joe" type remarks to his superiors prior to the action was a jury question. Likewise, the Court held the fact that other Horizon employees had returned from military service without any adverse employment action "does not preclude a claim by a member of that class who was so treated." The Court reiterated that whether Velazquez-Garcia's violation of the Code was a terminable offense was only the start of the analysis: the burden was on Horizon to show that it would indeed have fired Velazquez-Garcia regardless of his military service. The Court remanded the case for further findings. Two items of note: (1) USERRA does apply to a State and its municipalities; and (2) a person who prevails under USERRA is entitled to recover reasonable attorneys fees, expert witness fees and other litigation expenses.

Although few cases have been decided USERRA to date, it is important for a municipal employer to consider its protections when making employment decisions involving members of its work force who serve in the military, including in the reserves or National Guard. The First Circuit's opinion suggests that courts will closely scrutinize any "adverse" employment decisions involving members of the military and, indeed, the onus will be on the employer to establish the legitimacy of the reasons for its employment decision. Courts will be reluctant to endorse an adverse employment decision where it appears that the employee's military service played any role in that decision.

* * *

Grandfather Clause Salvages Non-Conforming Lot: Rourke v. Rothman, 448 Mass. 190 (2007).

In the Town of Orleans, plaintiff Stuart Rothman sought to build a single family residence on his lot. The Town Commissioner denied Rothman's building permit because the lot did not conform to Section 164-21A of the Town's (zoning) by-law which requires a minimum lot size of 40,000 square feet and minimum lot frontage of 150 feet. To be sure, Rothman's lot was grossly undersized with only 8,000 square feet and only 80 feet of frontage. Subsequently, the Zoning Board of Appeals reversed the Commissioner's decision holding that that the grandfather provision which was within Section 164-21A(1) (and that incorporated by reference General Laws, Chapter 40, Section 6) exempted Rothman's lot from the present zoning requirements and allowed the permit to be issued. Thereafter, the Land Court reversed the Zoning Board's decision. The Court of Appeals affirmed the Land Court 's decision. The Supreme Judicial Court granted further appellate review and reversed the Court of Appeals (and, thereby, affirmed the Zoning Board's decision that the lot was grandfathered.)

The SJC held that General Laws, Chapter 40A Section 6 exempts certain lots from increased zoning conditions when the following criteria are met at the time of the original recording or endorsement: 1) the lot had at least 5,000 square feet with 50 feet of frontage; 2) was not held in common ownership with any adjoining land; and 3) conformed to then existing requirements. The SJC found that Rothman's property met the local zoning requirements for a buildable lot at the time of the purchase back in 1970 and, therefore, it was immaterial that the lot size did not conform to the Town's current zoning requirements for building a single family residence. The Court further stated that "Section 6 is concerned with protecting a once valid lot from being rendered unbuildable for residential purposes assuming the lot meets modest minimum requirements ."

The reversal upon reversal in the procedural history in Rothman illustrates the confusion on this issue. The significance of this decision is that it reaffirms the notion that zoning by-law changes as to what constitutes a buildable lot have no effect on particular property as long as the lot conforms to the by-laws existing at the time of purchase and assuming the lot meets modest minimum area and frontage requirements pursuant to General Laws, Chapter. 40A, Section 6. This remains true even if the lot is drastically undersized by standards set by current by-laws.

* * *

MBTA May Ignore Local Zoning Ordinances Applicable to Advertising Activities on its Property: MBTA v. City of Somerville, Suffolk Super. Ct., C.A. No. 06-04616 (April 2, 2007)

Judge van Gestel of the Suffolk Superior Court Business Litigation Section recently considered, on cross-motions for summary judgment, whether commercial advertising activities of the Massachusetts Bay Transportation Authority ("MBTA") on two MBTA facilities located in Somerville (a commuter rail maintenance yard) and Melrose (the Cedar Park commuter rail station) are subject to local zoning ordinances. At issue were large, multi-story electronic billboards constructed by the MBTA at its Somerville and Melrose facilities. Both billboards ran afoul of size and height restrictions contained in the Somerville and Melrose signage ordinances.

On April 2, 2007, Judge van Gestel decided in favor of the MBTA, ruling it was allowed to construct its billboards free from local interference. Under its enabling statute, the MBTA is granted the authority (1) to provide mass transportation services without being subject to the jurisdiction and control of any city or town; (2) to "sell, lease or otherwise contract for advertising in or on" MBTA facilities; and (3) to determine the character and extent of the services and facilities to be furnished. M.G.L. c. 161A, § 11. Moreover, the MBTA is expressly mandated to "establish and implement policies that provide for the maximization of nontransportation revenues from all sources." Id .

In support of their position that, despite the MBTA's status as a state agency, the MBTA remained subject to local signage ordinances, Somerville and Melrose argued that commercial advertising activities were not sufficiently related to the MBTA's "essential governmental function" – i.e. , the providing of mass transportation services. Judge van Gestel disagreed. Recognizing that an agency created by the Legislature remains immune from local zoning so long as it is performing an "essential governmental function," the Judge pointed out that such immunity extends broadly to any "action reasonably related to that function." Town of Bourne v. Plante, 429 Mass. 329, 332 (1999). He therefore concluded that, to the extent it raises revenues to help fund mass transportation services, "commercial advertising is without question 'action reasonably related to [the MBTA's essential governmental] function . . .,'" as described in Plante . For FY2007, the MBTA anticipates generating approximately $17.2 million in revenue from commercial advertising in and on MBTA facilities and properties. Thus, the MBTA billboards, the Judge concluded, did not need to comply with the Somerville and Melrose signage ordinances.

According to its website – www.mbta.com – the MBTA operates 183 bus routes, 3 rapid transit lines, 5 streetcar routes, 4 trackless trolley lines and 13 commuter rail routes, servicing 175 cities and towns. A system so large necessarily involves numerous stations, stops, parking lots, yards, garages and other facilities. In light of its recent adoption of an aggressive outdoor advertising campaign, the MBTA is no doubt delighted with Judge van Gestel's ruling. The same most likely cannot be said for those interested in exercising at least some local control over the commercial advertising activities conducted in MBTA-serviced cities and towns.

* * *

Firm Announcements

PD&P recently named Attorney John R. Felice a partner. Mr. Felice has been an associate at PD&P since 2005. He is a 1999 graduate of Suffolk Law School and a 1996 graduate of Fairfield University. Mr. Felice's practice concentrates on toxic tort liability and products/premises liability.

About Our Firm

Our partners bring a total of more than ninety years of litigation and trial experience to the firm. With our associates, we provide a depth and breadth of experience and training comparable to that found in larger law firms. Our size enables us to guarantee a quick response and to be flexible enough to meet each client's particular needs.