Stankiewicz v. City of Manchester

• Decision Date: 20 December 2007
• Docket Number: No. 2006–911.,2006–911.
• Citation: 938 A.2d 873,156 N.H. 587
• Court: New Hampshire Supreme Court
• Parties: James M. STANKIEWICZ v. CITY OF MANCHESTER.

156 N.H. 587

938 A.2d 873

James M. STANKIEWICZ

v.CITY OF MANCHESTER.

No. 2006–911.

Supreme Court of New Hampshire.

Argued: Nov. 8, 2007.

Opinion Issued: Dec. 20, 2007.

McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette and Matthew G. Mavrogeorge, on the brief, and Mr. Morrissette orally), for the plaintiff.

City Solicitor's Office, of Manchester (Daniel D. Muller, Jr., on the brief, and Thomas I. Arnold, III orally), for the defendant.

GALWAY, J.

The plaintiff, James M. Stankiewicz, appeals the rulings of the Superior Court (Abramson, J.) denying his motion for summary judgment and granting the cross-motion for summary judgment of the defendant, the City of Manchester (City). The City cross-appeals the denial of its motion to dismiss for lack of jurisdiction. We affirm in part and reverse in part.

The record supports the following facts. The plaintiff was hired by the Manchester Police Department in 1986. In 2000, he suffered a work-related injury. In 2004, he underwent surgery, resulting in his being absent from work from May 7, 2004, until October 17, 2004. Prior to his absence, the plaintiff filed a workers' compensation claim with the City alleging that his 2004 surgery was necessitated by his injury in 2000. The City denied his request for workers' compensation benefits, but permitted him to use his accumulated sick leave credit for the time he was absent.

After his claim for workers' compensation was denied by the City, the plaintiff sought a hearing with the New Hampshire Department of Labor. On February 2, 2005, following hearings with the department of labor and the New Hampshire Compensation Appeals Board, the plaintiff was awarded workers' compensation benefits. The City paid the award, but asked the plaintiff to repay the sick leave money he received during his absence because he had now received workers' compensation benefits for that time. The City informed the plaintiff that once he repaid the sick leave money, his sick leave credit would be restored. The plaintiff refused to repay the money, and his sick leave credit was not restored.

In September 2005, the plaintiff filed a declaratory judgment action seeking restoration of his sick leave credit pursuant to section 33.064(B)(2) of the Manchester Code of Ordinances (MCO), which states: "Pending determination of compensation eligibility, the employee may receive sick leave benefits. On a determination of eligibility for compensation benefits, sick leave credit shall be restored." According to the plaintiff, the MCO entitled him to have his sick leave credit restored without having to repay the City. The City counterclaimed for repayment of the sick leave money, and moved to dismiss on the ground that the plaintiff's claim arose under the collective bargaining agreement (CBA) between the City and the police supervisors union and was, therefore, governed by the CBA's grievance procedures and arbitration requirement. See Agreement Between the City of Manchester, N.H. and the Manchester Association of Police Supervisors,

Art. 7 (July 1, 2004–June 30, 2007). We note that although the plaintiff's claim spans the effective dates of two collective bargaining agreements between the City and its police officers, the provisions relevant to this appeal are identical, and we therefore cite only to the 2004 through 2007 agreement.

The parties filed cross motions for summary judgment. The superior court, after a hearing, denied the City's motion to dismiss, ruling that it had jurisdiction because the plaintiff's claim was based upon the MCO, not the CBA. In a later order, the trial court granted the City's motion for summary judgment and denied the plaintiff's motion, ruling that the plaintiff's sick leave credit would be restored upon repayment of his sick leave money. The plaintiff appeals the trial court's rulings on the cross motions for summary judgment, while the City cross-appeals the denial of its motion to dismiss.

I. Motion to Dismiss

The City contends that this dispute is governed by the CBA. Therefore, the plaintiff is required to abide by its grievance procedures, including the requirement that his claim be submitted to binding arbitration. Thus, jurisdiction over this matter lies with an arbitrator and not the court.

The trial court determined that the MCO, and not the CBA, governed this matter because: (1) contrary to the City's argument, section 33.023 of the MCO did not exempt the plaintiff's claim from the coverage of the MCO; and (2) the plaintiff's claim could not be governed by the CBA because it does not address the relief sought by the plaintiff. As to the first issue, the interpretation of an ordinance is a question of law, which we review de novo. Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 41, 917 A.2d 1221 (2007). Because the traditional rules of statutory construction generally govern our review, we construe the words and phrases of an ordinance according to the common and approved usage of the language. Id. When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indications of legislative intent, and we will not guess what the drafters of the ordinance might have intended, or add words that they did not see fit to include. Id.

Section 33.023 of the MCO states:

None of the provisions of §§ 33.020 through 33.082 of this chapter shall amend or modify any existing legal and binding contract between the city and employees' groups unless or until such contracts are renegotiated to conform with the provisions of §§ 33.020 through 33.082 of this chapter.

City of Manchester, New Hampshire, Code of Ordinances, ch. 33, sec. 33.023. According to the City, this section prevents certain provisions of the MCO, including section 33.064, from applying to the plaintiff, unless the contract covering him was renegotiated to conform with those provisions. The City contends that because the CBA covering the plaintiff was not renegotiated to conform with those provisions, and because the plaintiff's rights are defined by the CBA, the plaintiff may not avail himself of the benefits of the MCO. We do not agree.

Municipalities have general authority to adopt ordinances for their governance. See RSA 47:17 (2003 & Supp.2007) ; RSA 49–B:8 (2003). Pursuant to that authority, the City has adopted ordinances pertaining to various aspects of the employment relationship with its employees. See generally City of Manchester, New Hampshire, Code of Ordinances,

ch. 33. The City's ordinances are valid local laws, see

State v. Hayes, 61 N.H. 264, 330 (1881), which no party challenges in this appeal.

"[T]he laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms." Trustees of Phillips Exeter Academy v. Exeter, 90 N.H. 472, 484, 27 A.2d 569 (1940) (quotation omitted). Thus, when the City and any employees' groups enter into contracts, those contracts must comply with the terms of the MCO, as it is the law subsisting at the time and place of the contract's formation and performance. Because the MCO is a set of local laws existing at the time the CBA here was formed, its provisions, including section 33.064, become part of the agreement of the parties and are applicable to the plaintiff.

The City, despite its general authority to adopt ordinances for its governance, may not, however, simply alter or abandon valid contracts with its employees' groups by adopting new ordinances. See, e.g., RSA 273–A:5, I(i) (1999) (declaring it an unfair labor practice for a public employer to make any law or regulation that would invalidate any portion of an agreement entered into by that employer). Therefore, section 33.023 of the MCO states that sections 33.020 through 33.082 of the MCO, do not amend or modify "any existing legal and binding contract[s] ... unless or until such contracts are renegotiated." City of Manchester, New Hampshire, Code of Ordinances, ch. 33, sec. 33.023 (emphasis added). Because section 33.023 is stated in the present tense, it refers to those contracts existing at the time the provision was enacted and exempts such contracts from complying with the MCO until they are renegotiated. As section 33.023 exempts only those contracts existing at the time it was adopted, contracts formed thereafter are subject to the MCO. Because the CBA at issue was formed after the enactment of section 33.023, it is subject to the MCO. We conclude, as did the trial court, that section 33.023 of the MCO did not exempt the plaintiff's claim from the coverage of the MCO.

The City next contends that even if section 33.023 does not exempt the plaintiff's claim from the MCO, his claim is addressed by the terms of the CBA and resort to the MCO is unnecessary. The trial court found that because the plaintiff's claim for restoration of his sick leave credit is not addressed by the CBA, "[t]he grievance procedure of the CBAs is not the appropriate avenue for [the plaintiff] to pursue his claim." The City argues that this was error because: (1) the trial court decided the arbitrability of the plaintiff's claim, a matter within the jurisdiction of the arbitrator; (2) the plaintiff cannot be presumed to be entitled to the benefits of the MCO, even if the CBA is silent; and (3) the impossibility of compliance with the CBA does not justify the court's exercise of jurisdiction.

As to the first argument, while the determination of arbitrability is generally within the jurisdiction of the arbitrator or the New Hampshire Public Employee Labor Relations Board (PELRB), Appeal of Police Comm'n of City of Rochester, 149 N.H. 528, 533–34, 823 A.2d 757 (2003), that rule applies when the relevant claim arises under the CBA. Here, the plaintiff's claim to the restoration of his sick leave credit arises out of a right conferred by the MCO. Thus, the plaintiff is seeking to vindicate...