Bos. Police Dep't v. Jones
| Citation | 159 N.E.3d 739,98 Mass.App.Ct. 762 |
| Decision Date | 10 November 2020 |
| Docket Number | 19-P-900 |
| Parties | BOSTON POLICE DEPARTMENT v. Ronnie C. JONES, & others. |
| Court | Appeals Court of Massachusetts |
Alan H. Shapiro, Boston, for Ronnie C. Jones & others.
Helen G. Litsas, Boston, for Boston Police Department.
Present: Vuono, Milkey, & Desmond, JJ.
This case is before us for the second time. It began nearly two decades ago when ten Boston police officers were discharged from the Boston police department (department) after samples of their hair tested positive for cocaine.2 The officers appealed from the termination of their employment to the Civil Service Commission (commission). In 2013, the commission upheld the discharges of four of the officers and determined that the remaining six officers, Ronnie C. Jones, Richard Beckers, Shawn Harris, Jacqueline McGowan, Walter Washington, and George Downing, the plaintiffs in this contempt case (officers), were entitled to reinstatement without loss of compensation or benefits. The commission's decision was affirmed with slight modifications by a judge of the Superior Court in an order dated October 6, 2014.3 We affirmed that judgment in a decision released on October 7, 2016. See Thompson v. Civil Serv. Comm'n, 90 Mass. App. Ct. 462, 59 N.E.3d 1185 (2016).4 Thereafter, a second round of litigation ensued.
Despite extensive negotiations, the parties failed to agree on the appropriate remedy. Ultimately, the officers brought an action for civil contempt, see Mass. R. Civ. P. 65.3, as appearing in 386 Mass. 1244 (1982). As we discuss in more detail later, the parties identified several legal issues in dispute regarding the calculation of back pay and benefits, and they asked a judge of the Superior Court to resolve those issues based on stipulated facts. In a detailed memorandum of decision, the judge addressed each issue. A judgment in accordance with that memorandum entered. Not content with the judge's rulings, and still not able to reach an agreement, both sides appealed from that judgment.5
Background. We recite only those facts necessary to provide context for our discussion of the issues. Following our decision in Thompson, 90 Mass. App. Ct. 462, 59 N.E.3d 1185, Officers Harris, Downing, and Washington were reinstated. These three officers were returned to duty and restored on the active payroll on September 11, 2017. They returned to full duty in April 2018, after they completed the required training. Officer Jones chose to retire, and Officers McGowan and Beckers chose not to return to the department and, at the time of this appeal, were seeking to retire. On February 16, 2018, the department made partial payments consisting of base pay, holiday pay, shift differential, and educational pay to Officers Harris, Downing, Washington, and Jones. The payments included certain contractual buy backs for unused vacation, personal days, and sick leave, but the department did not include any payments for estimated amounts of overtime and detail pay that the officers presumably would have earned during the period when they were unlawfully separated from their employment. In addition, the department deducted wages earned by these officers from their interim employment during the back pay period, including wages earned from second and third jobs and overtime. The department also excluded any compensation for periods where these officers were not employed on the ground that they had failed to mitigate their damages.6
The department treated Officers Beckers and McGowan differently. It is undisputed that these two officers did not earn any income following the termination of their employment. Several years after he was discharged, in August 2009, Officer Beckers moved to Honduras where he owns and operates a bed and breakfast establishment. He has not made any profit. Since Officer McGowan's discharge, she has provided full-time care for her mother, with whom she lives. The department took the position that Officers Beckers and McGowan were not entitled to any back pay because they did not mitigate their damages by obtaining interim employment.
As previously noted, after the officers filed a complaint for civil contempt, the parties agreed to submit a joint stipulation delineating the issues that required resolution and a joint stipulation of facts. The department also submitted a report prepared by Dr. Christopher Erath, an economist retained by the department to calculate each officer's economic losses as a result of his or her wrongful discharge. Following a nonevidentiary hearing, the judge ruled as follows:
The judge did not calculate the back pay awards and interest.
Discussion. I. The officers' appeal. The officers challenge three aspects of the judge's decision. First, they claim that their back pay awards should include compensation for estimated overtime and detail pay. Second, they assert that they are entitled to postjudgment interest. And third, they argue that they should receive additional compensation to relieve them of the tax burden caused by receiving large lump sums in back pay. We address each issue in turn.
A. Overtime and detail pay. General Laws c. 31, § 43, provides that when the commission or a reviewing court orders the reinstatement of a civil service employee who has been discharged without just cause, "the person concerned shall be returned to his position without loss of compensation or other rights." In prior decisions, we have held that the quoted phrase does not impose an obligation on the government employer to pay more than the employee's salary or base pay as fixed by statute or ordinance. See White v. Boston, 57 Mass. App. Ct. 356, 360, 783 N.E.2d 467 (2003) ; Selectmen of Framingham v. Municipal Court of Boston, 11 Mass. App. Ct. 659, 660-661, 418 N.E.2d 640 (1981) (). In Selectmen of Framingham, supra, we held that a police officer who was unlawfully separated from his employment was not entitled to recover pay for special details he could have worked during the period of separation. We reasoned that because the need for extra services was likely to be uncertain, compensation for such pay could not be calculated without speculation. Over twenty years after our decision in Selectmen of Framingham, we decided White. In that case, we relied on our decision in Selectmen of Framingham to conclude that the plaintiff, a police officer who secured reinstatement nearly two years after he was unlawfully barred from returning to his employment with the police department, was entitled to compensation consisting of "straight salary" and not "salary plus assumed overtime and detail pay." White, supra at 357, 783 N.E.2d 467. We specifically considered the question whether overtime and detail pay should be regarded as components of a "make whole" remedy, and we concluded that a government employee may recover base salary but not estimated amounts of overtime and detail pay. See id. at 360, 783 N.E.2d 467. Here, relying on our decisions in Selectmen of Framingham and White, the judge concluded that the officers were not entitled to recover overtime and detail pay.
At the core of the officers' claim that their back pay award should include estimated amounts for overtime and paid details is the meaning of the phrase "without loss of compensation or benefits." As the officers acknowledge, we have consistently interpreted that phrase as excluding earnings from potential overtime or paid details. See White, 57 Mass. App. Ct. at 360, 783 N.E.2d 467 ; Selectmen of Framingham, 11 Mass. App. Ct. at 660-661, 418 N.E.2d 640. The Legislature has amended G. L. c. 31 several times without attempting to alter our interpretation. "It is a well-settled rule of statutory interpretation that, when a statute after having been construed by the courts is re-enacted without material change[,] ... the Legislature ... is presumed to have adopted the judicial construction put upon it." Hertrais v. Moore, 325 Mass. 57, 61, 88 N.E.2d 909 (1949), quoting Nichols v. Vaughan, 217 Mass. 548, 551, 105 N.E. 376 (1914). See Suliveres v. Commonwealth, 449 Mass. 112, 116, 865 N.E.2d 1086 (2007). Thus, our interpretation "is supported by legislative approval," Nichols, supra, and, as such, absent an agreement between the parties, we conclude the officers may not recover estimated amounts for overtime and paid details.
In reaching our conclusion, we have not ignored the officers' argument that the circumstances presented here are different than those presented in White. In that case, the period of time for which the officer was entitled to compensation was two years, see White, 57 Mass. App. Ct. at 356, 783 N.E.2d 467, whereas the time period for which the officers are owed compensation here is significantly longer.7 Additionally, we have considered the fact that sophisticated, nonspeculative methods of calculating overtime and detail opportunities exist.8 Nonetheless, our precedents, coupled with the subsequent legislative history, require us to apply the bright-line rule that estimated overtime and detail pay is to be excluded from a back pay award.9 See...
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