United States Court of Appeals For the First Circuit

No. 22-1674

JACK OWENS, JEFFREY DREES, KATELYN MURPHY, PATRICK MONOLIAN, SCOTT MANN, SEAN HUSSEY, on behalf of themselves and all others similarly situated, JOHN AMIRAULT, PATRICIA BAILEY, RICHARD BARTHELMES, STEPHEN BELLAVIA, STEPHEN C. BELLAVIA, AYRTON BORGES, DANIEL BOURQUE, NOELLE BOWIE-PIERCE, TYLER CALHOUN, CAROLE CARLIN, SCOTT CARROLL, MICHAEL CASALETTO, JAMES CASELLA, DANNY CATANA, KATELYN F. MURPHY CENTORE, ALISON CHARPENTIER, ANDY CHEN, EDMUND CHOI, ROBERT CLEMENTE, CONOR CLOHERTY, KEVIN CO, DAVID CONNELLY, RICHARD CORREALE, NICHOLAS COX, JON CRANNELL, SANDROFF DADAILLE, JOHN DELANEY, CORY D'ENTREMONT, CAMERON DICARLO, SHAWN DILLON, ROBERT DISALVATORE, RICHARD DOHERTY, RUSSELL DONOVAN, KEVIN FERRICK, BLAKE FERRY, EDWARD FITZPATRICK, STEVEN FITZPATRICK, RYAN FORTIER, DAVID FRANZESE, JASON FROIO, MARC GATCOMB, SALVATORE GENNETTI, MICHAEL GIORDANO, EVER GOMEZ, AMANDA GRENIER, CHRIS GRIFFITHS, PHILIP HALLORAN, JUNE F. MCADAM HASSENFRATZ, TRENT HEADLEY, MAUREEN HOLLAND, PAUL HOPKINS, ERIK ISRAELSON, JOSEPH KEEFE, JOHN KELLEY, KEVIN KILLION, PATRICK KINNON, GUSTAVO KRUSCHEWSKY, JEAN LAMOUR, MICHAEL LANGSTON, JOHN LANNI, KEVIN LAW, GEORGE LOPEZ, STEVEN LUBINGER, MICHAEL LUONGO, MARGARET MACDONALD, GEORGE MACKAY, ADAM MAHER, JOSEPH MARTINEZ, RENEE KELLEY-NUSUM, LAWRENCE MCGAHEY, KEVIN MCKENNA, PAUL MCLEOD, ELIJAH MCNEAL, JOHN MEDEIROS, PETER MITCHELL, MICHELET MONTINA, JESUS MONTOYA, STEVEN MULCAHY, STEPHEN MUNYON, BRIAN NEWNAN, STEPHEN NOBLE, ROBERT O'BRIEN, SALVATORE PACI, MICHAEL POLSTON, MICHAEL POWELL, MATTHEW QUINN, JOSHUA REDMOND, JOHN REYNOLDS, WILLIAM ROWE, KEVIN RUSSELL, CAMERON SELFRIDGE, ROBERT SELFRIDGE, KYLE SHAW, KEVIN SHERIDAN, ADAM SIEGEL, DANIEL SYLVA, BRIAN TILLEY, EVAN TUXBURY, ROBERT WADLAND, JOSEPH WALKER, CHARLES WASHINGTON, KENNETH WATKINS, KEITH WILSON, AMANDA F. SELFRIDGE YANOVITCH, DAVID YUNG,

Plaintiffs, Appellees,

v.

CITY OF MALDEN,

Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Montecalvo, Selya, and Thompson, Circuit Judges.

Barry J. Miller, with whom Alison Silveira, Timothy Buckley, and Seyfarth Shaw LLP were on brief, for appellant. Joseph A. Padolsky, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellees.

October 30, 2023 MONTECALVO, Circuit Judge. This appeal follows a bench

trial involving police officers in the City of Malden

(collectively, "Officers") and the City of Malden (the "City").

The Officers brought suit against the City for allegedly deducting

a ten percent administrative fee from wages they received for

police detail work. At the heart of the lawsuit was a term in the

Collective Bargaining Agreement ("CBA") that set the hourly rate

for police detail work -- a term that the parties interpreted

differently. The Officers presented their interpretation of the

term, which aligned with how the Officers were historically paid.

The contract term was crucial to the case because the Officers

claimed that a ten percent deduction for an administrative fee

resulted in a reduction in their wages -- as set forth in the CBA

-- thereby violating the Massachusetts Wage Act,

(the "Wage Act"). The City, however, argued that

the CBA set a lower rate than the Officers were paid, so any

reduction in the calculated rate still resulted in a higher payout

than contemplated in the CBA.

At trial, the district court concluded that the contract

term was ambiguous and extrinsic evidence was required to clarify

the CBA. Then, after considering witness testimony, the court

held that the Officers' interpretation was correct and the City

had violated the Wage Act. Further, the court ruled that, even if

the City had overpaid the Officers, the City had violated

- 3 - Massachusetts General Laws chapter 44, § 53C (the "Municipal

Finance Law") by deducting an administrative fee from the Officers'

wages, thus still violating the Wage Act.

After review, we conclude that the contract term was

unambiguous in favor of the City and that there was no violation

of the Wage Act or Municipal Finance Law. Accordingly, we reverse.

I. Background

The City is a municipality located in Middlesex County,

Massachusetts that employs the Officers through the City of Malden

Police Department. During their off-duty hours, Officers may

volunteer to provide additional public service or public safety

services ("Detail") in return for additional compensation. These

Detail services may be requested by a City department ("Public

Detail") or by a private third party through an agreement between

the City and the third party ("Private Detail"). For Private

Detail, the Municipal Finance Law permits the City to charge an

additional ten percent administrative fee to the private third

parties. At issue here is the parties' calculation of the

Officers' compensation for Private Detail, pursuant to the CBA's

Detail compensation term.

The organization of the Detail process is "under the

exclusive direction and control of the [D]etail [B]oard." Owens

v. City of Malden,

, 86-87 (D. Mass. 2021). This

Detail Board is made up entirely of "representatives and members

- 4 - of the [Officers'] Unions."

This "[D]etail [B]oard . . .

ha[s] control over all matters having to do with [D]etails." As

part of this exclusive direction and control, the Detail Board

calculates the Detail compensation rate without input from the

City. The CBA, negotiated between the City and the Officers'

unions, dictates that compensation for these Details shall be "one

and one half times the maximum patrolman's rate of pay including

night differential." For context, in Article 30, the CBA describes

all the factors that contribute to an officer's maximum

compensation. Within that Article, the CBA explains that an

officer shall receive a base salary but may also be entitled to

various wage augments. The relevant augments for this appeal are:

(1) a six percent night shift differential; (2) hazardous duty

pay, which is a set annual sum that is paid out weekly; (3)

longevity pay, which is a benefit earned based on years worked;

and (4) educational incentives (also called "Quinn Bill

Benefits"), which provide additional pay for an officer's earned

educational degrees.

Based on its interpretation of the CBA, the Detail Board

calculated "the maximum patrolman's rate of pay including night

differential" to include a patrolman's maximum base salary plus

the night differential as well as hazardous duty pay, longevity

pay, and educational incentives (the "Officers' Rate"). To account

for the administrative fee associated with Private Details, the

- 5 - Detail Board would then reduce its calculation by ten percent and

set that number as the Detail rate of compensation. Then, when

the City would invoice third parties, ten percent would be added

on top of that rate to collect the administrative fee for the City.

A few days before filing this lawsuit, the Officers'

unions began investigating whether the application of the

administrative fee for Private Details reduced the Officers'

wages. After the investigation, without first filing a complaint

with the Massachusetts Attorney General, the Officers filed suit

alleging that a ten percent reduction of the Private Detail rate

violated the Wage Act.1 In response, the City argued that the

CBA's Detail term only entitled the Officers to the maximum base

pay plus a night shift differential (the "City's Rate"). As such,

the City maintained that the Officers were overpaid, and that an

administrative fee deduction -- to the extent there was one -- did

not reduce the Officers' contractually defined wages. A bench

trial followed.

At trial, the court heard testimony from various

witnesses regarding the operation of the Detail process and the

meaning of the Detail compensation contract term. At the trial's

conclusion, the court issued a Memorandum of Decision and found

that the City had violated the Wage Act. Owens,

The Officers also alleged a violation of the Fair Labor Standards Act but did not appeal the court's ruling on the issue.

- 6 - at 100-01. In doing so, the court held: (1) that the Officers did

not need to file with the Massachusetts Attorney General before

initiating suit, (2) that the contract term was ambiguous and

entitled the Officers to the Officers' Rate, and (3) that the City

had improperly deducted the administrative fee from the Officers'

wages.

.

This appeal followed.

II. Standard of Review

When a district court conducts a bench trial, we review

its legal determinations de novo. United States v. 15 Bosworth

St.,

(1st Cir. 2001). The court's factual

findings, however, are "entitled to considerable deference."

But "an appellate court will displace factual findings made in the

aftermath of a bench trial if those findings are clearly

erroneous."

And "when a trial court bases its findings of

fact on an inaccurate appraisal of controlling legal principles,

the rationale for deference evaporates entirely."

.

III. Discussion

The City first argues that the Officers failed to file

a pre-suit complaint with the Massachusetts Attorney General,

which should have barred this lawsuit from proceeding. Next, the

City argues that the Detail contract term is unambiguous and

entitles the Officers to the City's Rate only. As such, the City

- 7 - maintains that the Officers were overpaid, which would nullify any

Wage Act claim. We take each argument in turn.

A. Pre-Suit Requirement

The City contends that the district court erred when it

allowed the Officers to proceed with their Wage Act claim despite

their failure to file a pre-suit claim with the Massachusetts

Attorney General. The relevant law provides that:

An employee claiming to be aggrieved by a violation of [the Wage Act] . . . may, 90 days after the filing of a complaint with the attorney general, or sooner if the attorney general assents in writing, and within 3 years after the violation, institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits. . . .

. In considering this issue, "we

must apply the state's law on substantive issues and 'we are bound

by the teachings of the state's highest court.'" Phoung Luc v.

Wyndham Mgmt. Corp.,

, 88 (1st Cir. 2007) (quoting N.

Am. Specialty Ins. Co. v. Lapalme,

, 37–38 (1st Cir.

2001)).

We see no error in the district court's decision to allow

this litigation to proceed. In Depianti v. Jan-Pro Franchising

Int'l, Inc.,

, 1062 (Mass. 2013), the Massachusetts

Supreme Judicial Court ("SJC") determined that a failure to file

a Wage Act complaint with the Attorney General before filing a

- 8 - private suit did not deprive a court of jurisdiction to hear the

claim. In so holding, the SJC considered "(1) to what extent the

defect interferes with the 'accomplishment of the purposes

implicit in the statutory scheme,' and (2) to what extent the

opposing party can 'justifiably claim prejudice.'"

at 1060

(quoting Schulte v. Dir. of the Div. of Emp. Sec.,

(Mass. 1975)). The SJC determined that "[t]he requirement

that a plaintiff file a complaint with the Attorney General before

bringing a private suit is intended simply to ensure that the

Attorney General receives notice of the alleged violations, so

that she may investigate and prosecute such violations at her

discretion." Id. at 1061. Put simply, the pre-suit filing

requirement is meant to "ensure[] that private actions for wage

violations do not come and go without the Attorney General ever

being made aware of the alleged unlawful conduct." Id. Thus, a

"failure to file a complaint with the Attorney General before

initiating a private suit for alleged employment violations does

not interfere with the accomplishment of the statutory purposes of

§ 150 to a substantial degree, at least where the Attorney General

is notified of the suit during its pendency." Id. at 1062.

Here, despite being severely delayed, the Officers filed

a complaint with the Attorney General before the district court

entered its final judgment. As such, the Attorney General was

notified of the suit during its pendency. Cf. Herbert A. Sullivan,

- 9 - Inc. v. Utica Mut. Ins. Co.,

, 535 (Mass. 2003)

("[T]he power to reconsider a case, an issue, or a question of

fact or law, once decided, remains vested in the court until a

final judgment or decree is entered. . . ."); Boyce v. Wheeler,

(1882) (noting that the "rule of law is well

settled that, in cases pending in the Superior Court, questions of

law arising therein cannot be entered and heard in this court,

upon appeal or exceptions, until after final judgment in the

Superior Court"). Shortly thereafter, the Attorney General's

office responded and informed the Officers that they were

"authorizing [the Officers] to pursue this matter through a private

civil lawsuit." Based on Depianti and the Attorney General's

letter, we conclude that the purposes implicit in the statutory

scheme have been satisfied. And

a defendant cannot plausibly claim prejudice by the tardiness of the plaintiff's filing, at least where, as here, the plaintiff's suit would not have been time barred under the three-year limitations period included in G.L. c[h]. 149, § 150, had he first filed with the Attorney General and waited ninety days before bringing suit against the defendant.

Depianti, 990 N.E.2d at 1062. Hence, the district court was

correct to allow this litigation to continue.

B. Ambiguity of the Contract Term

The City next argues that the contract term governing

Detail compensation is unambiguous and entitles the Officers to

- 10 - less than they were actually paid. Determining "[w]hether a term

is ambiguous is a question of law." Lanier Pro. Servs., Inc. v.

Ricci,

(1st Cir. 1999). "To answer the ambiguity

question, the court must first examine the language of the contract

by itself, independent of extrinsic evidence concerning the

drafting history or the intention of the parties." Farmers Ins.

Exch. v. RNK, Inc.,

(1st Cir. 2011) (quoting

Bank v. Thermo Elemental Inc.,

, 907 (Mass. 2008)).

Under Massachusetts law, a contract term is ambiguous if its

language is "reasonably prone to different interpretations" or

"susceptible to differing, but nonetheless plausible,

constructions." Alison H. v. Byard,

(1st Cir. 1998).

But "[a]mbiguity is not created merely because the litigants

disagree about the meaning of a contract." Nicolaci v. Anapol,

(1st Cir. 2004).

Here, the CBA dictates that Detail compensation is set

at "one and one half times the maximum patrolman's rate of pay

including night differential." The City maintains that this term

includes the highest patrolman's base salary plus a night

differential wage augment of six percent. Under the Officers'

interpretation, this term includes the highest base salary and a

night differential wage augment, as well as any educational

incentives, longevity pay, and hazardous duty pay.

- 11 - The contract term here is unambiguous in favor of the

City. We conclude as much by relying on "the familiar principle

of expressio unius est exclusio alterius, . . . [which] 'instructs

that, when parties list specific items in a document, any item not

so listed is typically thought to be excluded.'" Riley v. Metro.

Life Ins. Co.,

(1st Cir. 2014) (quoting Smart v.

Gillette Co. Long–Term Disability Plan,

(1st Cir.

1995)). But "the canon expressio unius est exclusio alterius does

not apply to every statutory listing or grouping; it has force

only when the items expressed are members of an 'associated group

or series,' justifying the inference that items not mentioned were

excluded by deliberate choice, not inadvertence." Barnhart v.

Peabody Coal Co.,

(2003) (quoting United States

v. Vonn,

(2002)).

Such is the case here. The various wage augments in the

Officers' Rate are all defined in Article 30 of the CBA,

establishing that they are members of an associated group. There

is some force to the fact that the CBA defines wage augments --

except for longevity pay and educational incentives, which are

sensibly grouped because of their mutual exclusivity -- in separate

sections. Scrutinizing these definitions reveals that the night

differential is the only wage augment that is shift specific. The

other wage augments increase an officer's base salary or are paid

- 12 - out in a lump sum. Yet, other language in the CBA casts

considerable doubt on this interpretation.

In other sections of the CBA, wage augments are

explicitly listed when they are applicable to a given rate. For

example, in Article 16, § 4, the CBA establishes that an officer's

Overtime rate "shall be 1/40th of the officer's weekly pay to

include base pay, hazardous duty pay, night differential,

longevity and educational incentive monies to which the officer is

entitled, multiplied by one and one-half for number of hours

worked." The City argues that the inclusion of wage augments in

the Overtime rate supports the application of the expressio unius

canon. But this argument ignores the specific language describing

the Overtime rate. The Overtime rate is defined as an "officer's

weekly pay," which includes "base pay" and various wage augments.

The specific use of the term "base pay" thus might imply that the

disputed term "patrolman's rate of pay" cannot mean base pay.

Otherwise, as the City's position would require, two terms would

describe the same amount without any explanation for the variance.

But a simple explanation for this variance, as the City suggests,

is imprecise drafting. We cannot discount this explanation, given

the drawn-out nature of negotiating the CBA. Even so, while we

recognize that this example remains consistent with the City's

position, its distinct language renders it a less persuasive

- 13 - predicate for the expressio unius canon. We therefore must look

to other sections of the CBA for greater guidance.

In Article 14, § 1, the CBA explains that an officer who

goes to court as a witness ("Court Time") shall be paid at a rate

of "one and one-half (1 1/2) times the maximum patrol officer's

rate of pay including night differential," nearly identical

language to the Detail compensation term. Then, in Article 16,

§ 3, the CBA specifies that "[a]ll officers earning so-called

'Quinn Bill Benefits' . . . shall have such benefit included and

calculated for [C]ourt [T]ime." As Article 16, § 3, demonstrates,

the CBA is clear as to when a wage augment is to be included in an

officers' compensation rate. To do so, the drafters of the CBA

took care to write another provision in order to explicitly fold

Quinn Bill educational incentives into Court Time. And as we see,

the Detail term is essentially identical to the Court Time term;

both rates are one and one-half times the maximum patrolman's (or

patrol officer's) rate of pay including night differential.

Despite this identical construction, under the Officers'

interpretation of the Detail rate, Quinn Bill educational

incentives are included in the contract term even without a

corresponding provision explicitly including them. Such an

interpretation would render Article 16, § 3, meaningless -- an

unacceptable outcome. F.D.I.C. v. Singh,

(1st

Cir. 1992) (explaining that an argument calling for the court to

- 14 - adopt "a construction that would render an express clause in the

documents nugatory. . . . flies in the teeth of Massachusetts law,

which directs courts to give reasonable effect to each provision

of an agreement wherever feasible"). Consider, further, a

situation in which the highest paid patrolman does not receive

educational incentives. A patrolman who is entitled to educational

incentives would receive Court Time pay based on the wages of a

patrolman who does not receive these incentives, even though the

CBA dictates that the patrolman receiving them "shall have such

[incentives] included and calculated for [C]ourt [T]ime."

(Emphasis supplied). This command to include educational

incentives seemingly becomes meaningless. That resulting conflict

provides additional support for the application of the expressio

unius canon.

In fact, the Officers' Rate would also require us to

read Article 30, § 8, contrary to the plain text. Article 30,

§ 8, explicitly states that "[a]n officer cannot receive both

longevity and education pay." The text is abundantly clear: there

are no circumstances in which an officer may receive both longevity

pay and educational incentives. Yet, the Officers' Rate does

exactly that and gives officers both longevity and education pay

-- an outcome that the CBA forbids. Looking back to the Overtime

rate, we see that the CBA avoided this outcome by stating that an

officer would receive "longevity and educational incentive monies

- 15 - to which the officer is entitled," which contemplates that an

officer could be entitled to one or the other, but not both. There

is no such language here, and the Officers' Rate would give an

officer money to which they are not -- and cannot be -- entitled.

Standing alone, perhaps the contract term would conjure

up enough ambiguity to necessitate a turn to extrinsic evidence,

but "[a]ccepted canons of construction forbid the balkanization of

contracts for interpretive purposes." Smart,

; see

also Bukuras v. Mueller Grp., LLC,

(1st Cir.

2010) (explaining that "the parties' intent must be gathered from

a fair construction of the contract as a whole and not by special

emphasis upon any one part" (cleaned up)). When reading the

contract as a whole, it becomes clear that the Detail rate does

not include any wage augments beyond the night differential. The

term "maximum patrolman's rate of pay including night

differential" entitles an officer to the highest base salary for

a patrolman plus the night differential wage augment and nothing

more. Thus, we conclude that the district court erred when it

determined that the contract term was ambiguous.2

We note that before considering any extrinsic evidence, the 2

district court apparently agreed that the contract language was unambiguous in favor of the City. The district court explained that despite the "unambiguous and not-difficult calculation approach . . . the parties actually did something different and they did it over a significant period of time." This language suggests that the district court read the contract term to only include base salary plus the night differential, which was contrary

- 16 - C. Wage Act Violation and Municipal Finance Law Violation

Having concluded that the proper Detail rate is the

highest base salary for a patrolman plus the night differential,

we must still address whether the Officers were paid what they

were required under the CBA. In relevant part, the Wage Act

provides that:

Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week, or to within seven days of the termination of the pay period during which the wages were earned if such employee is employed seven days in a calendar week. . . .

.

Our review of the record confirms that even after a ten

percent deduction from the Officers' Rate, the Officers were

nonetheless paid more for Private Details than the CBA required.

As a representative example, from July 2019 to July 2020, the

highest base salary for a patrolman was $30.30 an hour or $1,212.10

for forty hours of work. Adding a six percent night differential

to how the contact term was applied in reality. The court went on to "wonder if [the CBA] c[ould] be altered by . . . joint conduct of the parties over a period of time?" The district court then considered extrinsic evidence and changed its mind on the ambiguity of the term, which was improper. See ITT Corp. v. LTX Corp.,

(1st Cir. 1991) ("Under Massachusetts law, parol evidence may not be admitted to contradict the clear terms of an agreement, or to create ambiguity where none otherwise exists.").

- 17 - ($72.73) to that amount results in a total of $1,284.83. Dividing

that total amount by forty hours results in $32.12 per hour, which

is then multiplied by 1.5 for a proper City's Rate of $48.18 per

hour. After the Detail Board's calculations and a corresponding

deduction for the administrative fee, the Officers were paid $59.92

per hour for Details. The math demonstrates that the Officers

were paid $11.74 more per hour than the CBA required. As such,

there is no Wage Act violation for an improper reduction of wages.3

Finally, we must address the district court's holding

that, even if the Officers were overpaid, a violation of the

Municipal Finance Law creates a de facto Wage Act violation. The

Municipal Finance Law dictates that a city "may establish a fee

not to exceed ten per cent of the cost of services authorized under

this section, which shall, except in the case of a city, town,

district or the commonwealth, be paid by the persons requesting

such private detail." Mass. Gen. Laws ch. 44, § 53C. The district

court, when confronted with the City's overpay argument, stated

that:

Irrespective of how high a detail rate may have been under individual circumstances, the City violated [the Municipal Finance Law] when it deducted a ten percent administrative fee from the Officers' wages for private detail

3 Because we conclude that the Officers were paid more than the proper wage, we do not address the City's alternative arguments that, for purposes of the Wage Act, (1) the City did not "employ" the officers working Private Details and (2) compensation for Private Details do not constitute wages.

- 18 - work, instead of charging the third party that had requested the private detail. Under these circumstances, the Officers might have been paid a high detail rate in some situations, but they still were not paid what they were owed in accordance with [the] Massachusetts [Wage Act].

Owens, 568 F. Supp. 3d at 100-01. In short, the district court

held that the City -- through the administrative fee deduction

calculated by the Detail Board -- had charged the administrative

fee to the Officers rather than to the private third parties. Id.

at 101. In the court's view, this Municipal Finance Law violation

created a Wage Act violation. Id.

The court's holding that the City violated the Municipal

Finance Law was clearly erroneous. As we see from the July 2019

to July 2020 period, the Detail rate paid to the Officers was

$59.92 per hour. Public Details are not subject to any

administrative fee, so if the City truly did charge the

administrative fee to the Officers, we should see that the Officers

were paid less for Private Details than for Public Details. But

it is undisputed that a $59.92 rate was paid to Officers,

regardless of whether they participated in Public or Private

Details. Further, in the case of Private Details, it is plain

that the City added the ten percent administrative fee on top of

the $59.92 before invoicing private parties. We can confirm this

through a calculation: $59.92 + ($59.92 x .10) = $65.91.

Simplified, we see that the City took the rate provided by the

- 19 - Detail Board ($59.92), multiplied that rate by ten percent ($5.99),

and then added those two numbers together ($65.91) to calculate

the private rate. As we see in the published rate memo for this

time period, $65.91 was presented to third parties as the Private

Detail rate including a ten percent administrative fee. So, as

evidenced by the Officers being paid the same across all Details,

the City did not charge the Officers the administrative fee. The

Officers argue that the proper rate was $65.91 and that the

administrative fee should have been added on top of that number to

conform with the Municipal Finance Law, but we have already

resolved the issue of the proper rate.4 In conclusion, even if we

assume without deciding that a Municipal Finance Law violation can

create a de facto Wage Act violation, the district court clearly

erred in finding that the City had violated the Municipal Finance

Law.

IV. Conclusion

For the foregoing reasons, we reverse the district

court's judgment and remand for proceedings consistent with this

opinion. Costs shall be taxed in favor of the City.

Separately, we note that if, as the Officers contend, the 4

proper Detail rate was $65.91 and the City had reduced that rate by ten percent, we would see a rate of $59.32 -- $65.91 x .90 -- and not $59.92. We also point out, once more, that the Detail Board -- comprised of police officers and police officer union members -- calculated the ten percent deduction itself.

- 20 -