Board of Selectmen of Ayer v. Sullivan

• Decision Date: 19 September 1990
• Docket Number: No. 89-P-84,89-P-84
• Citation: 29 Mass.App.Ct. 931,558 N.E.2d 1
• Parties: BOARD OF SELECTMEN OF AYER v. John SULLIVAN et al. 1
• Court: Appeals Court of Massachusetts

Page 1

558 N.E.2d 1

29 Mass.App.Ct. 931

BOARD OF SELECTMEN OF AYER v. John SULLIVAN et al. ¹

No. 89-P-84.

Appeals Court of Massachusetts Essex.

Argued March 9, 1990.

Decided August 13, 1990.

Further Appellate Review Denied

Sept. 19, 1990.

Theresa M. Dowdy, Boston, for defendants.

Henry G. Stewart, Boston, Robert W. Gardner, Jr., Ayer, with him, for plaintiff.

Before WARNER, C.J., and KASS and FINE, JJ.

RESCRIPT.

The facts are not in dispute. In February, 1986, the board of selectmen (board) of the town of Ayer (town) appointed John Sullivan as a police officer pursuant to the provisions of G.L. c. 41, § 96, as appearing in St.1977, c. 246, § 1. ² Generally, police officers are hired by the town for a one-year period and are subject to annual reappointment by the board. During June and July of 1986, nine or more complaints about Sullivan's performance were made to the chief of police and the board. The board held fact-finding investigative hearings in September and October of 1986. Sullivan and his attorney were present, each addressed the complaints, and a stenographic record was kept. On October 14, 1986, the board voted not to reappoint Sullivan to another one-year term. There was no disciplinary action. The board took a further vote on October 27, 1986, to suspend the execution of the vote not to reappoint until the board's February, 1987, meeting, which would be at a time about one year from the date of Sullivan's initial appointment. The board implemented the decision not to reappoint at its February 9, 1987, meeting.

On February 11, 1987, Sullivan requested a "just cause" hearing regarding the board's decision not to reappoint him. The board denied the request, claiming that no such hearing was required, but offered a "non-just cause" hearing. Sullivan filed a grievance under the collective bargaining agreement with the town, and the union thereafter filed for arbitration. The arbitrator concluded that (1) the rules and regulations of the police department were incorporated in the collective bargaining agreement; (2) those rules provided that the board has the authority to remove any mem ber time for just cause after due hearing; ³ (3) what the board did was to terminate Sullivan for disciplinary reasons under the guise of a decision not to reappoint; and (4) the purpose of the board's action was to avoid a just cause hearing. The arbitrator ruled that the town violated the collective bargaining agreement when it "dismissed " Sullivan without a just cause hearing and the arbitrator ordered him reinstated with full back pay, benefits and seniority.

The town timely filed an application to vacate the arbitrator's award on the ground that he had exceeded his authority. See G.L. c. 150C, § 11(a )(3). A Superior Court judge concluded that neither the discharge for cause requirement of the rules and regulations of the police department or of G.L. c. 41, § 96, applied to reappointments. Sullivan was not removed during the period of his appointment and, the judge ruled, as the board's authority under § 96 to appoint police officers was nondelegable, the award of the arbitrator exceeded his authority. From the ensuing judgment, Sullivan and the union have appealed.

"[T]he question whether the arbitrator[ ] acted in excess of the authority conferred on [him], as claimed in the present case, is always open for judicial review." School Comm. of W. Springfield v. Korbut, 373 Mass. 788, 792, 369 N.E.2d 1148 (1977). School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. 651, 654, 481 N.E.2d 484 (1985). See G.L. c. 150C, § 11(a )(3).

The power to appoint police officers pursuant to G.L. c. 41, § 96, is a matter of "inherent managerial policy," St.1973, c. 1078, § 4, as appearing in St.1977, c. 347, § 2, vested in the board and is nondelegable. Sullivan and the union do not, nor could they, argue to the contrary. See Boston v. Boston Police Patrolmen's Assn., 8 Mass.App.Ct. 220, 224-227, 392 N.E.2d 1202 (1979); Boston v. Boston Police Superior Officers Fedn., 9 Mass.App.Ct. 898, 402 N.E.2d 1098 (1980); Taunton v. Taunton Branch of the Mass. Police Assn., 10 Mass.App.Ct. 237, 241-245, 406 N.E.2d 1298 (1980). Cf. School Comm. of Danvers v. Tyman, 372 Mass. 106, 111, 360 N.E.2d 877 (1977); Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Assoc., 372 Mass. 116, 120, 360 N.E.2d 883 (1977); School Comm. of W. Bridgewater v. West Bridgewater Teachers Assn., 372 Mass. 121, 122, 360 N.E.2d 886 (1977); School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. at 655, 481 N.E.2d 484. "We need not decide whether the parties agreed to submit the question of [Sullivan's reappointment] to arbitration ... because,...