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18-P-571 Appeals Court
JAMES CUTICCHIA & others1 vs. TOWN OF ANDOVER & others.2
No. 18-P-571.
Essex. January 9, 2019. - April 3, 2019.
Present: Milkey, Maldonado, & Kinder, JJ.
Municipal Corporations, Group insurance. Insurance, Group,
Premiums. Public Employment, Retirement benefits.
Retirement. Statute, Construction. Practice, Civil,
Summary judgment.
Civil action commenced in the Superior Court Department on
August 15, 2016.
The case was heard by James F. Lang, J., on motions for
summary judgment.
Harold L. Lichten for the plaintiffs.
John Foskett (Ryan P. Dunn also present) for the
defendants.
1 William Canane, Dennis Lane, and the Andover Educators
Association (which was granted leave to intervene). For
convenience, we refer to the plaintiffs and the plaintiff-
intervener as "the plaintiffs."
2 Town manager of Andover and board of selectmen of Andover.
2
MILKEY, J. In 2016, the town of Andover increased the
percentage share that retired town employees had to pay for
their health insurance. Three retired town employees brought
this action alleging that G. L. c. 32B, § 22 (e), prohibited the
town from implementing such increases prior to July 1, 2018.3 On
cross motions for summary judgment, a Superior Court judge ruled
that the language of § 22 (e) unambiguously supported the town's
position that the increases were lawful. For the reasons that
follow, we vacate the judgment.
1. Statutory background. A municipality may, but is not
required to, provide health insurance coverage to its employees
and retirees. Somerville v. Commonwealth Employment Relations
Bd., 470 Mass. 563, 564 (2015). Where a municipality has chosen
to provide such coverage, it generally has a variety of options
regarding the percentage it will contribute towards the
insurance premiums. Although G. L. c. 32B, § 9, states that
retirees are to bear the full cost of their health insurance,
municipalities may elect to pay a share of those premiums by
"accept[ing] the more generous provisions of G. L. c. 32B, § 9A
or § 9E." Id. at 565. By opting into § 9A, the municipality
can pay fifty percent of the premiums, and by opting into § 9E,
they can pay a higher percentage. Id.
3 The claim was brought as a class action, but it was
dismissed before being certified.
3
In Somerville, the Supreme Judicial Court addressed the
question whether a municipality that had elected to opt into
§ 9E could "unilaterally reduce[] its percentage contribution to
retired employees' health insurance premiums without engaging in
collective bargaining over the matter with current employees."
Id. at 573. The court held that a town could do so, thus
reaffirming that municipalities enjoyed broad statutory
authority to raise the percentage share that retirees had to pay
for their health insurance premiums. See id.
In 2011, the Legislature enacted a law to allow
municipalities to pursue additional cost savings in the
provision of their health insurance plans. See St. 2011, c. 69,
§ 3, inserting G. L. c. 32B, §§ 21-23 (2011 act). Specifically,
municipalities now could elect to opt into a program through
which they could redesign their health insurance plans, e.g.,
through changing the copayments and deductibles that those
enrolled in the plans had to pay, and through adopting "tiered
provider network copayments and other cost-sharing plan design
features." G. L. c. 32B, § 22 (a). The 2011 act created a sui
generis, streamlined process through which such changes were to
be negotiated or, barring an agreement, determined by a
specially constituted "municipal health insurance review panel."
G. L. c. 32B, § 21 (c). While union representatives were given
4
an important role in that process,4 the process otherwise by-
passed ordinary collective bargaining. See G. L. c. 32B, § 23
(a), (c), (g) (providing that decisions by municipality to
redesign its health insurance plans are not subject to
collective bargaining).
Notably, the new authority offered by the 2011 act was
layered on top of the authority that municipalities already
possessed to decrease the percentage share that they contributed
to their retirees' health insurance premiums. See G. L. c. 32B,
§§ 9A, 9E. This meant that retirees now potentially could be
subjected to two types of increases implemented outside the
traditional collective bargaining process: increases to the
percentage share that they had to pay for their premiums, and
increases to their copays, deductibles, and the like. As both
sides agree, when the Legislature enacted the 2011 act, it
placed temporary limits on the ability of municipalities to
subject retirees to increases on both fronts. Specifically,
municipalities who elected to use their new authority to
implement design changes to their insurance plans outside
collective bargaining temporarily were precluded from using
their already existing authority to raise the percentage share
that retirees had to pay. As Governor Patrick stated in
4 See G. L. c. 32B, § 21 (b) (creating "public employee
committee" comprised of union and retiree representatives).
5
proposing the language establishing this moratorium,5 the purpose
was "the protection of current retirees from short-term
increases in premiums." Governor's Message, 2011 House Doc. No.
3581. Although the parties before us generally agree about the
role that the moratorium was intended to serve, they disagree
about the details as to how the moratorium was intended to
operate and, most specifically, when municipalities would be
relieved from its effects.
As enacted by St. 2011, c. 69, § 3, the moratorium language
set forth in § 22 (e) reads as follows:
"The first time a public authority implements plan design
changes under this section or section 23, the public
authority shall not increase before July 1, 2014, the
percentage contributed by retirees, surviving spouses and
their dependents to their health insurance premiums from
the percentage that was approved by the public authority
prior to and in effect on July 1, 2011."
In 2014, the Legislature amended this language by substituting
"2016" for "2014." St. 2014, c. 165, § 76. In 2016, the
Legislature again amended the language by substituting "2018"
for "2016." St. 2016, c. 133, § 45. On both occasions, the
remainder of the language was left the same.
5 The amendment to G. L. c. 32B was originally proposed as
an outside section of the fiscal year 2012 budget. The Governor
proposed the moratorium language in his statement returning
certain outside sections of the fiscal year 2012 budget with
vetoes and amendments.
6
2. Background. The town previously had elected to opt
into § 9E, under which towns pay more than fifty percent of
their retirees' health insurance premiums. Specifically, as of
2011, the town was covering between sixty-five percent and
eighty-six percent of those premiums.
In 2012, the town board of selectmen voted to make use of
the statutory authority provided by the 2011 act so that the
town could restructure the health insurance benefits it provided
to its existing employees and retirees. Following the
procedures required by the 2011 act, the town implemented its
first set of design changes to its health insurance plan
effective July 1, 2012. Those design changes, inter alia,
included increased copays and deductibles that current employees
and retirees alike would have to pay. The percentage
contribution that retirees would have to pay for their premiums
was not changed at that time.6
In 2016, the town implemented a second set of design
changes effective July 1, 2016. At that time, the town also
decreased the percentage contribution it would make to cover the
premiums of its retirees (thereby increasing the share retirees
had to pay). Because the Legislature by this time had extended
6 Both sides agree that a decrease in the town's percentage
contribution would have been prohibited by the moratorium
language included in § 22 (e).
7
the end date included in § 22 (e) to July 1, 2018, the
plaintiffs challenged the 2016 increase to their percentage
contribution as violating the moratorium.7 On cross motions for
summary judgment, the judge ruled in the town's favor,
explaining his reasoning in a thoughtful memorandum of decision.
In short, the judge accepted the town's argument that under the
plain language of § 22 (e), it could increase the percentage
contribution that retirees would have to pay even prior to July
1, 2018, because the moratorium applied only to "the first time"
a municipality implemented design changes to its health
insurance plans, not to second or subsequent changes. Although
the judge recognized that the town's interpretation "imposes a
very real financial hardship upon [retirees]," he concluded that
it was compelled by unambiguous statutory text. Relatedly, the
judge concluded that the plaintiffs' interpretation would render
superfluous the introductory language about "the first time" a
municipality restructures its health insurance plans. See
Connors v. Annino, 460 Mass. 790, 796 (2011) (statute is to be
construed "to give effect to all its provisions, so that no part
7 The end date of the moratorium has not since been
extended. Accordingly, the parties agree that § 22 (e) does not
prohibit increases to retirees' percentage contributions after
July 1, 2018. The controversy before us thus is limited to the
period between July 1, 2016 (the date the challenged increases
became effective) and July 1, 2018.
8
will be inoperative or superfluous" [quotation and citation
omitted]).
3. Discussion. When discerning the intent of the
Legislature, we, of course, must "begin with the language of the
statute, and [w]hen a statute is plain and unambiguous, we
interpret it according to its ordinary meaning" (quotations and
citations omitted). Commonwealth v. Hanson H., 464 Mass. 807,
810 (2013). See DiGregorio v. Registrar of Motor Vehicles, 78
Mass. App. Ct. 775, 780 (2011) ("Statutory text is, of course,
the principal source from which courts . . . are to discern
legislative purpose"). However, "we look to the language of the
entire statute, not just a single sentence, and attempt to
interpret all of its terms 'harmoniously to effectuate the
intent of the Legislature.'" Hanson H., supra, quoting
Commonwealth v. Raposo, 453 Mass. 739, 745 (2009).
The key language of § 22 (e) states as follows: "The first
time a public authority implements plan design changes under
this section or section 23, the public authority shall not
increase before July 1, 2018, the percentage contributed by
retirees . . . ." The town's contention that this language is
unambiguous has some force, especially if that language is read
in isolation. However, the town passes over the fact that the
statutory text does not directly address what constraints may
apply the second time a municipality implements plan design
9
changes; the town's interpretation relies on an inference that
"the first time" means "but not the second or subsequent time."
That inference is permissible, but not mandatory. Moreover,
"meaning and ambiguity are creatures of context." Downer & Co.,
LLC v. STI Holding, Inc., 76 Mass. App. Ct. 786, 792 (2010).
For the reasons set forth below, ambiguity emerges here when we
examine the key language in the context of the statute as a
whole.
It is uncontested that the moratorium set forth in § 22 (e)
served to place temporary limits on the authority that
municipalities already had to increase the percentage share that
retirees would have to pay to cover their premiums. In
addition, the § 22 (e) moratorium does not apply across the
board to all municipalities, but instead applies only to those
that have elected to make use of the new authority to redesign
their health insurance plans outside the collective bargaining
process. See G. L. c. 32B, § 22 (e). In light of this
complicated structure, two questions naturally arise with
respect to the timing of the moratorium: first, on what date
does the moratorium first limit a municipality's ability to make
use of its existing authority to increase the percentage
contribution that retirees will have to pay, and, second, when
does that limitation expire. In this context, the introductory
language regarding "the first time" a municipality restructures
10
its health insurance plans readily can be interpreted as
answering the first question. That is, the language of § 22 (e)
can be interpreted so that the moratorium applies to a given
municipality once that municipality has implemented design
changes to its health insurance plans "the first time," and the
moratorium expires on the date certain set forth in the statute
(originally July 1, 2014, later extended to July 1, 2018).
This interpretation not only is consistent with § 22 (e)'s
text, but also has the benefit of reading the various provisions
in G. L. c. 32B as a harmonious whole. Under it, municipalities
were informed that, if they chose to make use of their new
authority to redesign their health care plans outside the scope
of collective bargaining, their existing authority to raise the
percentage contributions made by retirees would be limited
temporarily until a date certain. See Ciani v. MacGrath, 481
Mass. 174, 178 (2019) ("Our principal objective is to ascertain
and effectuate the intent of the Legislature in a way that is
consonant with sound reason and common sense"). In contrast,
under the town's interpretation, a municipality's authority
would be tied to the happenstance of how many times the
municipality chooses to implement design changes to its
insurance plans. A municipality would be free to avoid the
moratorium designed to protect retirees so long as it already
11
had implemented design changes that presumably had hurt them.8
Even if that interpretation were not considered absurd or
illogical, the legislative policy rationale supporting it is, at
a minimum, far from obvious.9
The town argues that its interpretation is compelled by the
Legislature's use of the term "the first time" elsewhere in a
related subsection. See G. L. c. 32B, § 22 (b). That
subsection draws an express distinction between certain
procedural requirements that apply only to "the first time" a
municipality implements the authority provided by the 2011 act
to redesign their health insurance plans, and those procedures
that apply "each time" it does so. See id. The town argues
that the use of the "the first time" language in § 22 (b) means
8 Moreover, under the town's interpretation, municipalities
would be free of the moratorium the second time they made
changes to their health insurance plans, regardless of the
extent and nature of the two sets of changes. Thus,
municipalities would have been free to "game the system" in
order to avoid the moratorium, e.g., by making one set of design
changes to its health insurance plans, and then making technical
amendments to those plans while simultaneously raising the share
retirees must pay for their premiums.
9 The town took the position that the language of § 22 (e)
was unambiguous, and argued that the plaintiffs had the burden
of showing that the town's interpretation plainly would be
contrary to the manifest intent of the Legislature. See, e.g.,
Reade v. Secretary of the Commonwealth, 472 Mass. 573, 584
(2015) (rejecting argument that receipt of any veterans'
benefits renders party "indigent," notwithstanding that literal
reading of relevant statutory language provided support for that
position). As a result, the town did not attempt to explain how
its own interpretation made sense.
12
that we must attribute the same meaning to the Legislature's use
of the same language in § 22 (e). See Alliance to Protect
Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass.
663, 695-696 (2010) ("Words used in one part of a statute to
connote a particular meaning should be given the same meaning in
another part of the same statute" [quotation and citation
omitted]).
The flaw in the town's argument is that interpreting the
moratorium language in the plaintiffs' favor does not depend on
ascribing different meanings to "the first time" language used
in the two sections. Rather, in § 22 (b) and § 22 (e), the
meaning of the term "the first time" is identical; it appears
plain that, in both instances, the Legislature used these words
in the ordinary manner to refer to the date that the
municipality initially made design changes to its health
insurance plans (in reliance on its new authority to implement
such changes outside the collective bargaining process). The
key question is not what the phrase "the first time" means, but
what legal consequences were intended to attach to it based on
how the phrase specifically is used in each section. Under the
plaintiffs' interpretation of § 22 (e), the date a municipality
first uses the authority provided by the 2011 act marks when the
moratorium first applies; under the town's, that date marks both
the first time and the last time that the moratorium applies.
13
The plaintiffs' interpretation is significantly more plausible.
Cf. Leighton v. Hallstrom, 94 Mass. App. Ct. 439, 447 (2018)
(rejecting interpretation under which certain legal consequences
"were so evanescent as to vanish as soon as they were created").
None of this is to suggest that the plaintiffs'
interpretation flows easily from well-crafted statutory text.
But the sentence structure that the Legislature chose to employ
renders both competing interpretations awkward at best.10 Our
mandate is "to give ambiguous, imprecise, or faultily drafted
statutes 'a reasonable construction,' with the primary goal of
'constru[ing] the statute to carry out the legislative intent,'"
and to "avoid[] a construction which would negate legislative
intent or defeat its intended utility" (quotation and citations
omitted). Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass.
App. Ct. 282, 286 (1996).
When the language of § 22 (e) is considered in the context
of the statute as a whole, the plaintiffs' parsing of the
language is no less natural than that of the town. Had the
Legislature plainly intended its temporary curtailment of
10It often has been observed that "people who love sausage
and respect the law should never watch either one being made" (a
quote of uncertain provenance that has been attributed variously
to Mark Twain, Otto von Bismarck, and several others). The same
comparison might also be made about looking too closely at the
end product, not just the process. No matter how toothsome and
nourishing a sausage may be, its appearance often falls short of
ideal.
14
municipal authority to terminate on "the earlier of" July 1,
2018, and the date on which the municipality implements its
second set of design changes to its health insurance plans, it
would have been easy to say so. See Peters v. United Nat'l Ins.
Co., 53 Mass. App. Ct. 775, 783-784 (2002) (rejecting party's
interpretation of statute because, "had the Legislature desired
to create such a system, we believe it would have said so with
considerably greater clarity").
We finally consider the parties' competing claims about
whether available legislative history supports or undercuts
their respective interpretations. See Commonwealth v. Deberry,
441 Mass. 211, 215 (2004), quoting Chandler v. County Comm'rs of
Nantucket County, 437 Mass. 430, 435 (2002) ("Where the
statutory language is not conclusive, we may 'turn to extrinsic
sources, including the legislative history and other statutes,
for assistance in our interpretation'"). The parties agree that
if resort to legislative history is appropriate, then the
statement made by Governor Patrick when he sponsored the
moratorium language would be a valid source to consider. See
Commonwealth v. Peterson, 476 Mass. 163, 168 (2017) (where
resort to legislative history is appropriate, courts may
consider and give weight to Governor's sponsoring statement).
However, the Governor's 2011 statement that the moratorium was
intended to protect "current retirees from short-term increases
15
in premiums" is consistent with both interpretations, and
therefore provides little assistance in choosing between them.11
For their part, the plaintiffs highlight legislative
history related to the 2016 amendment to § 22 (e), which
extended the moratorium end date from July 1, 2016, to July 1,
2018. See St. 2016, c. 133, § 45. They argue, with at least
some force, that during the floor debate on that bill, at least
one key proponent of the bill and one key opponent both appear
to have understood that the 2016 amendment would extend the
moratorium for another two years, without any hint that
municipalities might avoid the moratorium simply by making
design changes to their health insurance plans a second time.12
11The town argues that a moratorium that would have lasted
seven years (from 2011 to 2018) cannot be considered as
providing merely "short-term" protections. But under the
language on which the Governor was commenting, the moratorium
was to terminate as of July 1, 2014. Especially given
inevitable time lags incumbent in a municipality's adoption and
then implementation of the authority provided by the 2011 act,
the moratorium originally was slated to be in effect at most for
only approximately two years (a period that easily could be
considered "short-term").
12During the floor debate in the Senate, the sponsor of the
2016 amendment to § 22 (e), Senator Thomas McGee, stated that
the amendment "extends until June 30, 2018 the protection for
those municipal retirees and survivors that was put in place in
2011." Amendment 91 Relative to Municipal Retiree Fairness,
Senate Floor Debate, May 24, 2016. Meanwhile, during the floor
debate in the House, the lead opponent of the amendment,
Representative Jim Lyons, explained that he opposed the change
because its effect would be that municipalities could "no longer
control the costs they want to control." State House News
Service (House Sess.), June 30, 2016. Notably, Representative
16
In addition, the plaintiffs point out that Governor Baker vetoed
the two-year extension of the moratorium end date and, in a
statement accompanying that veto, explained that "I am vetoing
this section because the section would take away, for an
additional two years, one of the few tools a city or town has to
control both its health insurance costs and its liability for
other post-employment benefits." Attachment B to Governor's
Message, 2016 House Doc. No. 4505. In the face of Governor
Baker's unqualified statement about the broad effects of the
two-year extension, the Legislature overrode his veto.
The parties engage in a vigorous debate about whether it is
appropriate to take into account the various comments made with
respect to the 2016 amendment to § 22 (e) and, if so, how much
force to attach to them.13 For present purposes, it suffices to
Lyons was from Andover, and he focused his comments on the
town's reliance on the anticipated termination of the moratorium
in 2016.
13The parties dispute the extent to which courts can look
to comments made by individual legislators (as opposed to
official committee reports and the like). Compare Boston Sewer
& Water Comm'n v. Metropolitan Dist. Comm'n, 408 Mass. 572, 578
(1990) ("Statements of individual legislators as to their
motives concerning legislation are an inappropriate source from
which to determine the intent of legislation"), with Rodman v.
Rodman, 470 Mass. 539, 545 n.9 (2015) (looking to comments made
by individual legislators as part of "floor debate" on bill for
clarification). In addition, the town argues that it is
inappropriate to rely on the comments made with respect to the
2016 legislation, because the key "the first time" language was
enacted in 2011 and left unchanged by the 2016 legislation. See
Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins.
17
say that nothing in the legislative history contradicts the
plaintiffs' interpretation, and that what is available, if
anything, provides some support for that interpretation. We do
not place conclusive, or even significant, weight on the
legislative comments that the plaintiffs have brought to our
attention.
4. Conclusion. For the reasons set forth above, the judge
erred in concluding that § 22 (e), as amended by St. 2016, c.
133, § 45, allowed the town to increase its retirees'
proportionate share of their health insurance premiums prior to
Co., 371 Mass. 186, 194 (1976) ("[T]he views of a subsequent
[Legislature] form a hazardous basis for inferring the intent of
an earlier one"). But while the 2016 Legislature did not change
the particular language on which the town seeks to rely, it did
otherwise materially amend the sentence in which that language
is embedded; indeed, the plaintiffs are relying on the 2016
amendment as what prohibits the town from raising their
percentage share. Under these circumstances, some argument can
be made that comments reflecting the views held by the 2016
Legislature regarding the consequences of its actions are
relevant. See Briggs v. Commonwealth, 429 Mass. 241, 256 (1999)
(recognizing that in some "circumstances it is appropriate for
us to respect [legislative] expression concerning the earlier
enacted statutory amendments").
With regard to what import to place on the Legislature's
enactment of the 2016 amendment to § 22 (e) over Governor
Baker's veto, the town points out that the Supreme Judicial
Court has cautioned against reading too much into such a fact in
a case broadly analogous to the one presented here. See Kobrin
v. Gastfriend, 443 Mass. 327, 336 n.10 (2005) (where Governor
vetoed bill based on his view that statutory provision was too
broad, fact that Legislature enacted statute by overriding that
veto "does not assist us in identifying where the line should be
drawn").
18
July 1, 2018. We therefore vacate the judgment and remand this
matter to the Superior Court for further proceedings consistent
with this opinion.
So ordered.