Sullivan v. Town of Brookline

• Decision Date: 06 September 2001
• Parties: JOHN L. SULLIVAN v. TOWN OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 353

758 NE 2d 110

JOHN L. SULLIVAN v. TOWN OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

September 6, 2001.

November 14, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

George F. Driscoll, Jr., for the defendant.

F. Robert Houlihan for the plaintiff.

Thomas F. Reilly, Attorney General, & Judith S. Yogman, Assistant Attorney General, for Public Employee Retirement Administration Commission & another, amici curiae, submitted a brief.

IRELAND, J.

The plaintiff, a twenty-year retiree of the Brookline police department (department), raises two issues through his petition for reinstatement: first, what standard should apply in evaluating a retiree's fitness to return to full employment; and second, whether a long-term retiree must complete retraining before becoming entitled to reinstatement. To answer these questions this court must interpret G. L. c. 32, § 8 (2), and G. L. c. 31, § 39. We conclude that G. L. c. 32, § 8 (2), compels reinstatement of retired employees once properly cleared by the retirement board, and a vacancy exists; however, G. L. c. 31, § 39, requires retirees who have been away from the job for "a period of time greater than five years" to complete a retraining program before they are entitled to return to full employment. Accordingly, we vacate the grant of summary judgment in the plaintiff's favor and remand the case to the Superior Court for entry of an order declaring the plaintiff is entitled to reinstatement to his former position or a similar position on his successful completion of a retraining program.

1. Facts. In August, 1977, the plaintiff, John L. Sullivan, retired from the department pursuant to G. L. c. 32, § 7, on a regional medical panel (medical panel) report diagnosing him with a disabling condition of the lower back. After nearly twenty years of disability retirement, the plaintiff requested reinstatement to his former position as a "Patrolman" with the department on June 25, 1997. On September 9, 1997, a medical panel, convened under the authority of the Public Employee Retirement Administration Commission (PERAC), examined the plaintiff and concluded that his "condition [had] changed so that [he was] able to return to the [same] position from which [he] retired." On November 18, 1997, the Brookline retirement board (board) recorded a vote acknowledging receipt of the medical panel's report. The board communicated the text of its vote and a copy of the medical panel certificate to the chief of police on November 26, 1997. Counsel for the plaintiff wrote to the chief of police and to the chairman of the board of selectmen requesting immediate reinstatement. Town counsel responded on December 22, 1997, stating the town had not decided whether to reinstate the plaintiff.

The plaintiff then brought his verified complaint in the Superior Court on January 2, 1998, seeking injunctive and declaratory relief.¹ The plaintiff sought a preliminary injunction to prevent the town from filling all vacant patrol officer positions, which was granted. The plaintiff then filed a motion for summary judgment to which the town responded with a cross motion for summary judgment. A Superior Court judge ordered the town to reinstate the plaintiff to the position of police patrolman. The town appealed and the Appeals Court affirmed the judgment. Sullivan v. Brookline, 50 Mass. App. Ct. 16 (2000). We granted the town's application for further appellate review.² 2. Standard of review. Summary judgment will be upheld when, "viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." McDonough v. Marr Scaffolding Co., 412 Mass. 636, 638 (1992), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In addressing the merits of the plaintiff's complaint the motion judge was bound to review the requirements imposed by § 8 (2) on the regional medical panel. Additionally, the town's appeal from the grant of summary judgment for the plaintiff requires review of the judge's conclusions of law, including his interpretation of § 8 (2).

3. Interpretation of G. L. c. 32, § 8 (2). Prior to 1996, G. L. c. 32, § 8 (2), as amended through St. 1989, c. 341, § 12, read as follows:

"If, as a result of the report of such regional medical panel, the board finds the mental or physical condition of such retired member has so changed that he is physically able to return to the same or a similar position, the board may, with the approval of the head of any department in which a vacancy exists, order any such retired member to return and be restored to active service in the same employment in which such member was employed at the time of his retirement, or in a similar employment in the same governmental unit."

Statute 1996, c. 306, § 16, rewrote the law to read:

"If, within two years of the date that a member is retired under section 6 or 7, a regional medical panel determines that the retired member is able to perform the essential duties of the position from which he retired, if following the completion of a rehabilitation program required under subdivision (1), a regional medical panel so finds, the member shall be returned to such position and his disability retirement shall be revoked ....

"If, after two years of the date that a member is retired under section 6 or 7, the regional medical panel determines that the retired member is qualified for and able to perform the essential duties of the position from which he retired or a similar position within the same department, as determined by the personnel administrator, said member shall be returned to said position, provided the position is vacant...."

The revised standard requires the medical panel to determine whether a returning retiree is able to perform the essential duties of the position and not just whether the disabling condition has changed so that the retiree is physically able to return to the prior position. The amended standard also removed any administrative discretion in reinstating a former retiree to full duty. See White v. Boston, 428 Mass. 250, 253-254 (1998).

The Legislature approved St. 1996, c. 306, on August 9, 1996, and it became effective on November 7, 1996. Id. at 252. Chapter 306 also transferred all of the authority of the Public Employee Retirement Administration (PERA) to PERAC and continued all existing rules and regulations as if passed by PERAC. See St. 1996, c. 306, § 55. On December 17, 1996, the executive director of PERAC informed local retirement boards that medical panels would continue to employ the preamendment standards while PERAC developed guidelines for determining the essential duties of a position. PERAC amended its regulations to include the guidelines for determining the essential duties of a position on September 4, 1998. See 840 Code Mass. Regs. § 10.20 (1998).

The town contends that the medical panel applied the wrong standard in evaluating the plaintiff and, as a result, he was not entitled to reinstatement. It argues that continued application of the preamendment standard conflicts with the purposes of St. 1996, c. 306, and was not the intent of the Legislature. We decline to accept this view.

We agree substantially with the reasoning of the Appeals Court as to the appropriate application of G. L. c. 32, § 8 (2), and only briefly restate that reasoning here. See Sullivan v. Brookline, supra.

For the purposes of our decision, it is sufficient to state that PERAC's determination to use the prior standard in evaluating returning and formerly disabled retirees was reasonable in light of the need for regulations to implement the new standard and the reality of existing retiree petitions for reinstatement. PERAC's decision to implement the new standard through the development of regulations guiding the determination of the essential duties of a position was also reasonable. See 840 Code Mass. Regs. § 10.20. Further, PERAC had the power to promulgate regulations governing the standards for conducting medical evaluations. See G. L. c. 32, § 6 ("examination shall be conducted in accordance with ... rules and regulations promulgated pursuant to this chapter"). See also St. 1996, c. 306, § 55 (vesting PERAC with "rule and regulation making authority" of PERA).

Moreover, even though the amended standard and the interim standard differed in some respects, PERAC's use of the interim standard substantially advanced the purposes of St. 1996, c. 306. See St. 1996, c. 306, § 55 ("all orders, rules, [and] regulations... shall continue in effect as if established ... by [PERAC] unless or until amended, modified, suspended, or revoked"). This language facilitated the transfer of authority to PERAC from PERA, and its terms clearly indicate an intent to continue all existing regulations. Additionally, the then-existing regulations called for a description of "the member's princi[pal] duties and responsibilities" to be provided to the panel as well as "any particular physical or mental requirements prescribed for the position." 840 Code Mass. Regs. § 10.07 (1)(a), (2)(b) (1993). See id. at §§ 10.08, 10.16. A description of these requirements is different under the new regulations, but the provision of a description under the regulations existing at the time of the plaintiff's evaluation did not conflict with and substantially advanced the purposes of St. 1996, c. 306.

PERAC's decision to continue to apply the preamendment medical panel evaluation standard in the interim was reasonable in light of the need for regulations to implement the new standard created by St. 1996, c. 306. The interim standard substantially advanced the purposes of St. 1996, c. 306, and the regional medical panel appropriately applied it in evaluating the plaintiff. The plaintiff is entitled to reinstatement under the provisions of G. L. c. 32,...