Commissioners of the Bristol County Mosquito Control District v. State Reclamation & Mosquito Control Board
Commissioners of the Bristol County Mosquito Control District v. State Reclamation & Mosquito Control Board
Opinion of the Court
The dispute in this case concerns the authority of the plaintiff commissioners of the Bristol County Mosquito
Statutory scheme. General Laws c. 252 governs the structure and function of the board as well as local mosquito control districts and projects such as the Bristol project. We summarize its relevant provisions.
The board is established by G. L. c. 252, § 2, and, pursuant to that section, exists within the State agency formerly known, and referred to in § 2, as the Department of Food and Agriculture.
Under G. L. c. 252, the board exercises control over the several projects’ budgets. Specifically, pursuant to G. L. c. 252, § 5A, the board determines the initial funding available to each project and its annual budget as well. The board also is responsible for monitoring every project’s expenditure of its budgeted funds. See G. L. c. 252, § 14. Moreover, the board remains accountable to the State comptroller for project budgets. G. L. c. 252, § 5A (to address “timing discrepancies” between revenues and expenses, board may “incur expenses and the comptroller may certify for payments amounts in anticipation of
Section 14D of G. L. c. 252, which is at issue here, was enacted by the Legislature in 2008.
“Mosquito control projects and mosquito control districts shall have sole authority in all personnel decisions including, but not limited to, the following: the hiring and firing of personnel; the establishment of rates of compensation for personnel representative of the regional economy; and the hiring of appropriate outside professionals deemed necessary to carry out and fulfill statutory obligations.”
Facts. The record reflects the following facts. On June 29, 2007, the board issued a memorandum announcing a temporary moratorium on salary increases and salary-connected cost of living adjustments (COLAs) for all personnel employed by any project, effective July 1, 2007. Citing “significant discrepancies” in salaries across projects, the memorandum stated that the board and the Department of Agricultural Resources were working on “consistent” and “fair” salary guidelines that were “expected to be completed within the next few months.”
On December 27, 2007, the plaintiff commissioners of the Bristol project voted to raise the salaries of four professional and administrative employees, and the project’s chair notified the board in writing on the same day that the Bristol project was doing so.
Section 14D of G. L. c. 252 became effective on July 1, 2008, and vested “sole authority in all personnel decisions,” including compensation rates, in the local projects. Thereafter, the board, acknowledging “concern that conflicts of law may now exist,” indicated that requests for salary increases in excess of the recently approved three per cent COLA must be reviewed by legal counsel.
On October 24, 2008, the board revoked the salary and COLA moratorium it had instituted in 2007. In its memorandum to all the mosquito control projects announcing this step, the board stated that the action was “necessary since the anticipated process of reclassification through the [HRD] to standardize and normalize pay rates and salary increases for mosquito control personnel has not yet been resolved.” The board stated that it would now consider, on a “case-by-case basis,” requests that were accompanied by “appropriate justification” and a demonstration that project budgets would cover the cost of any proposed increases.
The plaintiffs filed an action in the Superior Court on October 8, 2009. On June 6, 2010, the board approved a five per cent COLA for Bristol project employees, which applied retroactively to January 1, 2010.
Discussion. 1. Standard of review. “The standard of review of a grant of summary judgment is whether, 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.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974).
2. Authority to set rates of compensation for Bristol project employees. The plaintiffs contend that the plain language of § 14D is dispositive and therefore entitles them unilaterally to raise the salaries of the Bristol project’s employees without the board’s approval. Statutory language “is to be construed as written, in keeping with its plain meaning.” Stop & Shop Supermarket Co. v. Urstadt Biddle Props., Inc., 433 Mass. 285, 289 (2001). The pertinent language of § 14D states: “Mosquito control projects and mosquito control districts shall have sole authority in all personnel decisions including, but not limited to, ... the establishment of rates of compensation for personnel representative of the regional economy.” As the plaintiffs argue, the plain meaning of these words is that the plaintiffs have exclusive authority to set the salaries of the Bristol project’s staff, and those salary decisions are not themselves subject to board approval.
However, we disagree with the plaintiffs that the analysis
Under G. L. c. 252, §§ 5 and 5A, the board appoints the commissioners for every project and retains the authority to remove them for cause, and under § 12, the board remains responsible for approving every mosquito control “improvement” undertaken in a particular project and the manner in which it is accomplished. See id. (if all statutory requirements in G. L. c. 252, §§ 1 through 7, are met and financing arranged pursuant to G. L. c. 252, § 9 or § 10, “[t]he commissioners shall carry out said improvements in such manner as the board may approve”). But of greater relevance are the provisions in §§ 5A and 14, relating to budgets and expenditures. The board sets each project’s initial budget
The Legislature enacted § 14D as an outside section to the fiscal year 2009 budget, see St. 2008, c. 182, § 73, and did so without amending G. L. c. 252, § 5A or § 14, or any other provision in that chapter. We find nothing in the language of § 14D that contradicts any of these statutory provisions, and our review of § 14D’s legislative history has not suggested otherwise. Accordingly, we will construe § 14D in a manner
Given this interpretation of § 14D, the record here contains too many unanswered factual questions to permit the entry of
3. Authority to retain legal counsel. We briefly address the
The board takes the position that the plaintiffs unlawfully retained private counsel to represent the Bristol project in this action, in violation of G. L. c. 30, § 65.
On February 22, 2011, the parties entered into a joint stipulation stating that plaintiffs’ counsel have received appointments as special assistant attorneys general, “retroactively effective to the commencement of this litigation,” rendering the parties’ dispute over the applicability of G. L. c. 30, § 65, “moot” (emphasis in original). We agree. “[D]eclaratory relief is reserved for real controversies and is not a vehicle for resolving abstract, hypothetical, or otherwise moot questions.” Libertarian Ass’n of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 547 (2012), citing Massachusetts Ass’n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292-293 (1977). See G. L. c. 231 A, § 1. We decline to address the issue further.
4. Request for mandamus relief. Count 2 of the plaintiffs’ complaint seeks mandamus relief against the Treasurer and, in particular, an order requiring him to pay the salary increases to the Bristol project’s employees that the plaintiffs claim they are authorized to institute. Because the record does not permit resolution of count 1 of the complaint at this juncture, any consideration of count 2 is premature.
Conclusion. The judgment of the Superior Court is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
So ordered.
The State Reclamation and Mosquito Control Board (board) has three members, all of whom serve ex officio: an employee of the Department of Environmental Protection designated by its commissioner; an employee of the Department of Food and Agriculture (currently named the Department of Agricultural Resources, see St. 2003, c. 41, § 1 [a] [1]) designated by its commissioner; and a similarly commissioner-designated employee of the agency formerly known as the Department of Environmental Management (currently named the Department of Conservation and Recreation, see St. 2003, c. 41, § 1 [a] [3]). G. L. c. 252, § 2.
General Laws c. 252 distinguishes between mosquito control “districts” and “projects” primarily according to the manner in which they are formed. Compare G. L. c. 252, § 5 (if board decides formation of district is necessary to effect mosquito control or other improvements, it “shall issue a certificate appointing three, five or seven district commissioners”), with G. L. c. 252, § 5A (if board determines improvements can be made “without the formation of a district,” it may issue “certificate appointing one or more commissioners”). Apart from formation, however, c. 252 generally treats the two types of entities the same, and at times uses the terms “district” and “project” interchangeably. The parties do as well. Districts and projects share the same statutory authority with respect to their principal functions, including the hiring of employees. G. L. c. 252, § 5A (project commissioners “shall have all the powers conferred upon district commissioners under sections twelve and thirteen”). Additionally, G. L. c. 252, § 14D (§ 14D), expressly states that its provisions apply to both districts and projects.
There are currently in the Commonwealth a total of nine mosquito control projects (collectively, projects), including the Bristol project.
We discuss these statutory provisions in more detail infra.
In 2013, the Legislature amended G. L. c. 252, § 5A. St. 2013, c. 38, § 135. See note 15, infra.
The proposed salary increases were as follows: for the Bristol project superintendent, from $69,617.60 to $94,000; for its assistant superintendent, from $57,928 to $75,920; for its entomologist, from $47,340.80 to $66,325; and for its administrative assistant, from $42,723.20 to $55,892.
The letter references an “attached excel spreadsheet and 2007 State
The three per cent cost of living adjustment (COLA) thereafter was included in the fiscal year 2009 budget.
There appears to be no dispute that under G. L. c. 252, § 5A, the board sets the compensation rates for the commissioners of the Bristol project.
“If the board determines that the proposed improvements should be undertaken ... it shall notify all persons and bodies politic to be benefited thereby of the estimated expense of constructing the proposed improvements
“[T]he state treasurer shall assess the members of any mosquito control [project] up to one hundred percent of the amount determined by the board to be necessary during any fiscal year for the expenditures on behalf of said [project] and for the cost of the board” (emphasis added). G. L. c. 252, § 5A.
Section 14 of G. L. c. 252 provides in pertinent part: “The commissioners shall at least once a month at such time as the board may require submit to it the accounts and vouchers for expenses incurred in meeting the cost of required improvements under [G. L. c. 252, §§ 1-14B], Such accounts and vouchers shall be inspected by the board and if it approves the same it shall forward them to the county treasurer or to the state treasurer, as the case may be, for payment from any funds which may be available for the purpose.”
As mentioned, G. L. c. 252, § 5A, was amended effective July 1, 2013, see St. 2013, c. 38, § 135, to add to the second paragraph of § 5A a new sentence that follows immediately the sentence quoted in the text (relating to annual certification by the board to the State controller). It provides: “The certification shall not give the board the authority to modify the budget approved by a mosquito control project without the mosquito control project’s approval.” The 2013 amendment came after all the events at issue in this case had occurred, and clearly was not before the Superior Court judge who decided the cross-motions for summary judgment. The assistant attorney general representing the board forwarded to this court a copy of the amendment immediately before the oral argument, but neither party has sought to address its meaning or its particular bearing on the issues raised here. In the circumstances, we decline to consider the 2013 amendment further, except to observe that at least as a definitional matter, there is a distinction between the authority to modify a budget and the authority to approve (or disapprove) it.
It is also the case that the Bristol project’s proposed salary increases did not appear to coincide with the regular annual budget cycle. The parties do not explain or otherwise reconcile this timing issue with their respective interpretations of G. L. c. 252.
Although there is necessary factual information missing, the record does make apparent that this lawsuit has grown out of a longstanding dispute between the Bristol project and the board. Central to this disagreement, and reflected throughout the record, are repeated references by the board and others to efforts to establish a standard, Statewide salary structure for employees of the mosquito control projects, efforts that are described as having been ongoing since 2007, but there is no indication in the record (or in the parties’ briefs) that they have been completed. What the record also reveals is that hovering over this dispute, and perhaps closely linked to the topic of a Statewide salary structure, is an unresolved question whether the mosquito control projects are State agencies and, if so, whether this status defines or at least affects the rights of the parties in relation to the authority to set rates of compensation. Materials in the record suggest the board has taken the position that all mosquito control projects are State agencies and therefore must “work within the [Sjtate process of establishing . . . salaries,” including meeting the requirements of the human resources division, but this issue apparently was not raised by either party before the Superior Court and has not been raised on appeal.
General Laws c. 30, § 65, provides in pertinent part:
“(a) A lawyer who is not a regular state employee or person who is compensated through the automated payroll system of the commonwealth shall not provide legal services for the commonwealth, or for any department, agency, board or commission thereof, unless and until:
“(1) the governor’s chief legal counsel certifies in writing that no state employee can provide the legal services that the lawyer is to provide; [and]
“(3) the office of the attorney general has been consulted during the procurement process .... If said attorney will be providing litigation services, the attorney general will ensure that said attorney will appear in court on behalf of the commonwealth only after his appointment as a special assistant attorney general.
“(d) This section shall apply only to legal services provided under contract with the governor or with an officer, department, agency, board or commission serving under the governor or within one of the executive offices headed by a secretary appointed by the governor.”
Reference
- Full Case Name
- Commissioners of the Bristol County Mosquito Control District v. State Reclamation and Mosquito Control Board & another
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- Published