coventry firefighters response to ccfd motion for declatory judgement

8/19/2019 Coventry Firefighters response to CCFD Motion for Declatory Judgement

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STATE OF RHODE ISLAND SUPERIOR COURT

KENT, SC.

Girard Bouchard, in his capacity as :

President of the Board of Directors of :

The Central Coventry Fire District, ::

Plaintiff, :

:

v. : K.B. No. 12-1150

:

Central Coventry Fire District, :

:

Defendant. : __________________________________________ :

MEMORANDUM OF LAW IN SUPPORT OF

LOCAL 3372’S RESPONSE TO

DEFENDANT’S REQUEST FOR DECLARATORY RELIEF

Coventry Professional Firefighters, Local 3372 (“the Union”) hereby files the following

memorandum in response to the Central Coventry Fire District’s Request for Declaratory Relief.

Background

The instant case was filed in 2012 by the then-President of the Board of Directors of the

Central Coventry Fire District, requesting this Court place the Central Coventry Fire District

(“CCFD”) in receivership. The Court appointed a Special Master who was authorized to take

possession and charge of all the assets, effects, property, and business of the CCFD. A stay was

also ordered by the Court that prevented new lawsuits, the continuation of existing lawsuits and

collection activities brought against the CCFD by creditors and others.

In May, 2014, the General Assembly amended the Fiscal Stability Act, R.I.G.L. § 45-9-1

et seq., to prohibit judicial receiverships of fire districts. Thereafter, the matter was placed into

State-directed receivership, and, ultimately, Chapter 9 bankruptcy.

During Chapter 9 bankruptcy proceedings, the State-appointed Receiver, Mark A.

Pfeiffer, engaged in negotiations with the Union. The Receiver and Union executed two


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collective bargaining agreements (“CBAs”), one covering the period April 1, 2015 through

August 31, 2015 (which has expired) and one governing the period September 1, 2015 through

August 31, 2020 (which is still in effect).

Subsequent to executing the aforementioned CBAs, the bankruptcy petition was

dismissed. The District has been complying with the CBA (absent a few alleged violations that

are currently in the grievance stage).

On October 9, 2015, CCFD filed a motion to amend the pending receivership petition to

add three counts for declaratory relief. The Court orally approved the motion, although no order

was entered. In addition, the Amended Complaint has not been formally filed with the Court.

However, at a conference, the parties agreed to brief three issues:

1. What is the obligation of the Board of Directors as to the terms of either of thetwo (2) CBAs negotiated between the Union and the State Receiver?

2. Must the taxpayers of the CCFD fund, through the raising of taxes, the validcollective bargaining agreement entered into by the Board of Directors?

3. Does the Charter, by virtue of the taxing authority, give the taxpayers the rightto determine the mechanism of how fire suppression and EMS services are provided to the CCFD?

Relevant Charter and By-Law Provisions

CHARTER

Sec. 3 ANNUAL MEETINGS OF THE CONSOLIDATED FIRE DISTRICT

…

(b) …

[T]he district shall hold an annual meeting … for the purposes of: … (1) election a

Board of Directors (2) authorizing the assessment of all the taxable personal andreal property of the District; (3) authorizing the collection of taxes, as further setforth in Section 6 hereunder; (4) authorizing an annual budget to provide for the purchase and maintenance of equipment, apparatus, real and personal property, the payment of wages and salaries, and for such other expenditures deemed necessary by the qualified voters of the District; and (5) for such other lawful purposesdeemed necessary and proper by either the Board of Directors or qualified votersof the district.


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Sec. 6 DUTIES OF THE BOARD OF DIRECTORS

…

(b) The foregoing list of duties shall not be deemed limiting and the directors shallhave all necessary authority to operate and conduct the business of the District as

necessary, all within the bounds of the laws of the State of Rhode Island.

Sec.7 TAXING AUTHORITY-TAX ASSESSOR

(a) Said qualified voters at any of their legal meetings shall have the power to order

such taxes and provide for the assessing and collecting of the same on the taxable

inhabitants and property in said district as they shall deem necessary for purchasing

fire engines, and all other implements and apparatus for the extinguishing of fire;

… for paying the salaries of district officers and employees, as well as the members

of the rescue unit known as Central Coventry Rescue.1 …

(b) The qualified voters of the Central Coventry Fire District are also authorized to

raise money through taxes to purchase the necessary vehicles and equipment tooperate and maintain a rescue unit to be known as the Central Coventry Rescue.

Sec. 11 BY-LAWS

The qualified voters of said district may enact all by-laws by them adjudgednecessary and expedient for carrying the provisions of this act into effect, providedthe same be not in violation of or repugnant to the laws of this state.

The qualified voters may change any provision of the by-laws at any annual orspecial meeting, provided the proposed change has been notified in the call of themeeting.

Sec. 14 PRESERVATION OF RIGHTS UNDER EXISTING LABOR CONTRACTS

In accordance with the provision of Section 19.1 of Chapter 7, Title 28 of the RhodeIsland General Laws, this act of consolidation shall not impair the provisions of anyexisting labor contracts for persons employed by any of the individual fire districts. Notwithstanding the consolidation, the labor contracts shall continue in full forceand effect until their termination dates or until otherwise agreed by the parties ortheir legal successors.

Emphases added.

1 The Charter originally provided for “paying the salaries of district officers and firemen,” butwas amended in 2006 to replace firemen with “employees, as well as the members of the rescue

unit known as Central Coventry Rescue.”


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BY-LAWS OF THE CENTRAL COVENTRY FIRE DISTRICT

ARTICLE II- BOARD OF DIRECTORS

SECTION 1. Duties of the Board of Directors

A. The Board of Directors shall develop an annual budget, with information provided by the Treasurer and the Chief, and shall present said budget at theannual meeting, or a special meeting if necessary, for approval by the eligiblevoters present.

…

G. The Board of Directors shall determine the duties, salaries or wages, benefits,and conditions of employment of all appointees and/or employees, in addition tothe duties listed in the District charter and by-laws.

H. The Board of Directors shall be responsible for the negotiation of all laborcontracts; … shall have final approval of said contract.

Emphases added.

Argument

I. THIS COURT SHOULD REFRAIN FROM ISSUING DECLARATORY RELIEF

A. The “Taxpayers” Lack Standing and Are Unrepresented in this Case

It is well-settled that “the decision to grant a remedy under the Declaratory Judgments

Act is purely discretionary.” Employers' Fire Ins. Co. v. Beals, 103 R.I. 623, 628 (1968).

Further, “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim

any interest which would be affected by the declaration, and no declaration shall prejudice the

rights of persons not parties to the proceeding.” See R.I.G.L. § 9-30-11. The Union submits that

there are two questions that need to be addressed by this Court prior to even considering issuing

declaratory relief. First, do the taxpayers have standing to request declaratory relief? Second,

are they even parties in this case?

As CCFD properly points out in its brief, standing in a taxpayer’s suit is established “by

ascertaining whether the person whose standing is challenged alleges that the action in dispute


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will cause him or her an injury in fact, economic or otherwise.” Rosen v. Restrepo, 380 A.2d

960, 962 (R.I. 1977). In Rhode Island Ophthalmological Society v. Cannon, 113 R.I. 16, 22, 317

A.2d 124, 128 (1974), the Rhode Island Supreme Court articulated the applicable test. To satisfy

the standing requirement, a plaintiff must allege “that the challenged action has caused him

injury in fact, economic or otherwise.” Id. (quoting Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). Prior

cases have provided some depth to this seemingly sparse prescription, recognizing that plaintiff's

alleged injury must be a “legally cognizable and protected interest that is ‘concrete and

particularized * * * and * * * actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” McKenna,

874 A.2d at 226 (quoting Pontbriand v. Sundlun, 699 A.2d 856, 862 (R.I.1997)).

In Watson v. Fox, 44 A.3d 130, 135-38 (R.I. 2012), the Rhode Island Supreme Court

found that Plaintiffs, led by Robert Watson, in his capacity as a taxpayer, lacked standing to seek

declaratory relief. “[In] conducting our analysis in this case, we do not write on a blank slate; the

necessity of a “concrete” injury has been the subject of particular emphasis in this jurisdiction.

“[M]ere ‘interest in a problem,’ no matter how longstanding the interest and no matter how

qualified the organization is in evaluating the problem, is not sufficient by itself to render the

organization ‘adversely affected’ or ‘aggrieved’.” Blackstone Valley Chamber of Commerce v.

Public Utilities Commission, 452 A.2d 931, 933 (R.I.1982) (quoting Sierra Club v. Morton, 405

U.S. 727, 739 (1972)). The Supreme Court has held fast to the notion that a plaintiff's injury

must be “particularized” and that he must “demonstrate that he has a stake in the outcome that

distinguishes his claims from the claims of the public at large.” Bowen v. Mollis, 945 A.2d 314,

317 (R.I. 2008); see also Blackstone Valley Chamber of Commerce, 452 A.2d at 933; accord

Frothingham v. Mellon, 262 U.S. 447, 487 (1923). In this jurisdiction, generalized claims


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alleging purely public harm are an insufficient basis for sustaining a private lawsuit. See In re

Review of Proposed Town of New Shoreham Project, 19 A.3d 1226, 1227 – 29 (R.I.2011);

Berberian v. Solomon, 122 R.I. 259, 261 (1979); McCarthy v. McAloon, 79 R.I. 55, 62 (1951).

In fact, in Watson, the Court specifically held that “the Declaratory Judgments Act was

‘not intended to serve as a forum for the determination of abstract questions or the rendering of

advisory opinions.’ ” Id., McKenna, 874 A.2d at 227 (quoting Lamb v. Perry, 101 R.I. 538, 542,

(1967)).

The Court concluded:

We have little trouble concluding, and plaintiff nearly concedes, that if this Court'slongstanding principles of standing are applied to the circumstances of this case,then his suit must fail. The plaintiff sought a declaratory judgment as a privatetaxpayer, eschewing his official position as House minority leader, and he askedthe Superior Court to rule whether the General Assembly had expended publicmoney in a manner that conflicts with the requirements of the Rhode IslandConstitution. In our opinion, plaintiff has complained of no concrete,

particularized harm; to the degree he can point to any injury, it is the same,

indistinguishable, generalized wrong allegedly suffered by the public at large.See Frothingham, 262 U.S. at 487, 43 S.Ct. 597 (describing the plaintiff's claim toTreasury funds as an interest “shared with millions of others” that is “minute and

indeterminable”). Moreover, plaintiff has taken pains to assure this Court that heseeks only prospective, declaratory relief — or as the motion justice cogentlydescribed it, “a shot across the bow”— to discourage the General Assembly fromappropriating grants according to its past practices during future budget battles.Plainly, plaintiff is attempting to use the Uniform Declaratory Judgments Act(G.L.1956 chapter 30 of title 9) to secure an advisory opinion that relates to

hypothetical future conduct of the General Assembly. See McKenna, 874 A.2d at226. We are resolute that this Court lacks the constitutional authority to providesuch a ruling. See In re Advisory Opinion (Chief Justice), 507 A.2d at 1318 – 19.Indeed, plaintiff has been unable to evince any particularized injury that wouldremove this case from the realm of pure abstraction, and thus the relief that he seeksis really an advisory opinion cloaked in the garb of a request for declaratoryrelief.

Emphasis added. This is precisely what CCFD seeks here. There has been no assertion that the

taxpayers have suffered a “particularized injury.” Rather, just as in Watson, CCFD is attempting


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to use the Declaratory Judgment Act to secure an advisory opinion that relates to future conduct.

The Supreme Court has declined to find standing in such a situation.

Perhaps having read the proverbial tea leaves, plaintiff zealously urges us at length

to abandon our long-standing jurisprudence and join a number of other states thatdo recognize so-called “taxpayer standing.” See, e.g., Fergus v. Russel, 270 Ill. 304,110 N.E. 130 (1915); Myers v. *138 Nebraska Investment Council, 272 Neb. 669,724 N.W.2d 776 (2006); Vette v. Childers, 102 Okla. 140, 228 P. 145 (1924). Afterreviewing this Court's precedent and considering the decisions of other jurisdictions, we are not persuaded that such a radical departure is appropriate. First,all the cases cited by plaintiff to support this argument are factually inapt. In allthose matters, the complaining party sought either injunctive relief to prevent publicmoney from being expended or the disgorgement of money that had been dispersedin an unconstitutional manner. See, e.g., Fergus, 110 N.E. at 133 (action seekinginjunctive relief); Myers, 724 N.W.2d at 786 (action seeking disgorgement and

repayment of funds); Vette, 228 P. at 145 (action seeking injunctive relief). Here, plaintiff did not seek injunctive relief and he specifically has disavowed anyintention of pursuing repayment of any of the money he contends the GeneralAssembly granted in an unconstitutional way. Moreover, in our opinion, this

Court's long-standing jurisprudence — perhaps to a greater degree than that

of some other jurisdictions — has had a discernable focus on the requirement

of concrete and particularized harm. See Bowen, 945 A.2d at 317; McKenna, 874 A.2d at 226 – 27; Pontbriand, 699 A.2d at 862; Burns v. Sundlun, 617 A.2d 114,116 (R.I.1992). We will not depart from that precedent based on the facts before ushere.

Id. at 138 (Emphasis added).

Second, even if the taxpayers have standing to seek declaratory relief from this Court, it

is not clear that the taxpayers are even parties to this action. Attorney David D’Agostino, from

Gorham & Gorham, Inc., filed the Memorandum in Support of the Central Coventry Fire

District’s Request for Declaratory Relief. However, he signed his name as Attorney and

Solicitor for the Central Coventry Fire District Board of Directors. It is unclear whether he

represents both the Fire District and the Board of Directors. Or whether the Board of Directors is

purporting to act on behalf of the Fire District. If so, who is acting on behalf of the taxpayers, if

anyone? To the extent Attorney D’Agostino represents only one of the entities, the other entity

should be present and represented. See. R.I.G.L. 9-30-11.


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In In re City of Warwick, the Supreme Court held that the Plaintiff’s failure to join all

nine city council members as parties to the lawsuit was fatal to their declaratory-judgment action.

“A court may not assume subject-matter jurisdiction over a declaratory-judgment action when a

plaintiff fails to join all those necessary and indispensable parties who have an actual and

essential interest that would be affected by the declaration.” In re City of Warwick, 97 R.I. 294,

296 (1964). In In re City of Warwick, the mayor sought a declaration about whether certain

provisions of Warwick's municipal charter governed the manner in which members of three local

boards were to be elected. Id. at 295-96. The Court concluded that the mayor's failure to join all

members of these boards meant that any declaratory judgment issued by the court would have no

binding effect on the absent board members, thereby eviscerating the essential termination-of-

controversies purpose of such an action. Id. at 296-97. The Court decided that it would neither

excuse nonjoinder nor allow the appearance of fewer than all board members to constitute

representation of all the board members who had an interest in that controversy. Id. at 298; see

also Thompson v. Town Council of Westerly, 487 A.2d 498, 500 (R.I. 1985) (dismissing for lack

of jurisdiction because the plaintiffs' failure to join necessary parties meant judgment would not

be binding on all persons who had an interest in the dispute).

The petitioner argued that joinder of the board members was not here required because

the city solicitor who appeared in his behalf under art. 8 – 4 of the charter is the legal advisor of

all municipal officers, departments and agencies. “Stated otherwise, petitioner argue[d] that the

city solicitor appeared not only on his behalf but also as the attorney for board members whose

ouster he sought. That contention is obviously without merit, it being fundamental that an

attorney cannot in such circumstances represent parties having adverse interests.” Id. at 289,

citing Nelson v. Streeter , 65 R.I. 13, 19.


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Here, too, CCFD argues that the taxpayers, not the Board of Directors, “have the sole and

final determination of how fire suppression and EMS services are provided to CCFD,” and that

only taxpayers, not the Board of Directors, may approve a collective bargaining agreement. The

Board of Directors and the taxpayers thus have adverse interests. Each should be represented.

B. The Matter Is Not Ripe For Decision Because There Has Been No Vote By The

Taxpayers To Reject The CBAs Or Establish An Alternative Means Of Providing

Services To The District.

As CCFD2 recognizes, it is axiomatic that a “declaratory judgment action may not be

used for the determination of abstract questions or the rendering of advisory opinions, nor does it

license litigants to fish in judicial ponds for legal advice.” Sullivan, 703 A.2d at 751 (emphasis

added). However, this is exactly what CCFD seeks to do. It seeks a declaration that the

taxpayers of CCFD are not required to fund, through the raising of taxes, otherwise valid CBAs

entered into by the Board of Directors and that “the Board of Directors are limited in their [sic]

authority to execute multi-year collective bargaining agreements.” In short, it asks for a

declaration that if the CBAs are found to be valid, and if the taxpayers believe it would be in the

District’s best interest to terminate qualified firefighters and emergency medical technicians,

discontinue professional fire prevention services and utilize a for-profit ambulance company to

provide medical services to the residents, it could violate the CBA without repercussions. As

noted above, it is not clear whether the taxpayers are even represented in this case.3 But, even if

2 It is unclear whether the memoranda was filed on behalf of CCFD, the taxpayers or the Boardof Directors. However, the Union will refer to the claims made in the Memorandum as made by“CCFD.” 3 As CCFD repeatedly points out, the organization and operation of a fire district is very differentthan that of a municipality. The power to tax belongs to the people, not the Board. Accordingly,if this Court is to exercise its discretion by issuing a declaration as to the rights of the taxpayers, juxtaposed against the rights and powers of the Board, those taxpayers should be represented.Presumably, the taxpayers would have to appear individually or appoint or elect a person or persons to act on their behalf. This has not occurred.


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they are, there is no evidence that the taxpayers even want to engage in the dangerous exercise of

seeking to discontinue fire prevention services and hiring for-profit ambulance companies.4

Perhaps, after over three years of litigation, the taxpayers are content with the current five-year

CBA. Perhaps, instead of paying lawyers to engage in five separate interest arbitration

proceedings (which could yield better benefits for the Union and higher costs for the taxpayers),

the taxpayers would rather comply with the current CBA. Because there has been no indication

that the taxpayers wish to void the current CBA in favor of interest arbitrations proceedings, or

terminate the employment of its remaining firefighters/EMTs,5 it is not necessary for this Court

to make a determination as to whether they could.

6

II. IF THE COURT IS INCLINED TO ISSUE DECLARATORY RELIEF, IT

SHOULD MAKE THE FOLLOWING DECLARATIONS

A. The Two CBAs Negotiated Between The Union And The State Receiver Are

Binding On The District.

At the outset, there can be no dispute that the Receiver had the power to negotiate a

collective bargaining agreement with the Union on behalf of the District. CCFD does not dispute

this. See Memorandum of Law in Support of Central Coventry Fire District’s Request for

Declaratory Relief (“Memo”) at pp. 7-8. Rather, CCFD asserts that the CBA should not have

been approved because there is no proof that the “fire district’s financial resources and revenues

are, and will continue to be, adequate to support such collective bargaining agreement without a

4

Admittedly, the taxpayers voted on three occasions back in 2014 not to approve a budgetadequate to fund the existing CBA. However, the last budget (which provides for the funding ofthe current CBA) was approved by the taxpayers.5 Further, because there has been no affirmative action by the taxpayers, as aforesaid, they havesuffered no particularized injury.6 Moreover, the Union is unaware of any vote taken by the Board of Directors to set aside the

five-year contract.


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detrimental impact on the provision of municipal or fire district services.” Emphasis added.

CCFD’s unsupported claims should be rejected by this Court for a number of reasons. First,

overwhelming evidence, which includes a letter directly from the Acting Director of the

Department of Revenue, shows that both the Receiver and the Director believed the CBA “would

provide a significant benefit to the District.” See Memo, Exhibit 3 at p. 2. It was the proposed

actions of the Board of Directors, the Town, and Rep. Patricia Morgan that would have “a

detrimental impact on the provision of municipal or fire district services.” Id.

CCFD states that “neither CBA was supported by Receiver Pfeiffer or Director Sullivan”

Memo at 7. The statement lacks support in the record. Both the Receiver and Director Sullivan

negotiated the CBA. The CBA was executed and signed. The excerpts from Exhibit 7 actually

support the viability and validity of the CBAs. Director Sullivan writes that the Plan, which

includes the CBA,

could successfully restructure CCFD’s financial affairs and restore the District tofiscal stability but for the fact that the Plan has been and continues to be vigorouslyopposed by the Board and the Town. As you have reported to me and as I have personally observed, their primary opposition to the Plan is the model under whichfire and rescue services will continue to be delivered in the District. The Districthas a collective bargaining agreement with the International Association ofFirefighter, Local 3372 (“Local 3372”). As part of the Chapter 9 proceedings – andconsistent with the requirements of law – you and labor counsel negotiated with theunion in good faith and reached an agreement ... [that] would achieve $13.9million of savings for the District over the five-year term of the Plan. Notwithstanding those negotiated savings that would provide a significant benefitto the District, the Board, the Town and an elected representative in the communityhave continued to insist that the Plan not include the current union model fordelivery of fire and rescue services but instead include a model that utilizesvolunteer and/or private fire and rescue services.

Emphasis added.

Director Sullivan goes on to cite examples of the “strident nature of this opposition” to

Union-supplied services. As the Director makes abundantly clear, the obstructionism of the


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the CBA,8 their options are to seek concessions from the Union, or be subject to civil liability for

breach of contract.9

Notably, R.I. Gen. Laws § 45-9-9 does not require the Receiver to certify that taxes will

not increase during the life of the CBA. It would be impossible to do so. Rather, the fire

district’s resources and revenues need only be adequate to support such collective bargaining

agreement without a detrimental impact on the provision of municipal or fire district services.

Third, whether or not the CBAs should have been approved, the fact remains: they were.

Each CBA was executed by both the Union and the Receiver. To the extent the Director of

Revenue believed the CBAs were improperly or illegally executed, he could have said so. Not

only was there no indication that the Receiver executed the CBAs in violation of § 45-9-9, as

discussed above, the Director of Revenue agreed that the CBAs would achieve savings for the

District. The only impediment to implementation was that some of the elected board members

opposed the plan. See Memo, Exhibit 3 (“ Notwithstanding those negotiated savings that would

provide a significant benefit to the District, the Board, the Town and an elected representative in

the community have continued to insist that the Plan not include the current union model for

delivery of fire and rescue services but instead include a model that utilizes volunteer and/or

private fire and rescue services.”).

8 And lower than the previous year ’s budget, see R.I. Gen. Laws § 44-5.2-3, discussed infra.9 Director Sullivan also notes that the Plan could not be successfully implemented if CCFD wererequired to provide services to the Coventry Fire District for any longer than a short period oftime. Therefore, to the extent that the Town’s plan for delivery of fire and rescues services in theCoventry Fire District envisions that those services would be provided by CCFD, this would beyet another impediment to the successful implementation of the Plan.” See Memo, Exhibit 3 at p.3. As this Court is no doubt aware, Local 3372 has reached an agreement with the Coventry FireDistrict, which was funded by the taxpayers, and which will provide adequate fire and rescuecoverage to the Coventry Fire District. Thus, it will not be necessary for CCFD to provide fireand rescue services to the Coventry Fire District “for any longer than a short period of time,” ifat all.


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Moreover, the Union respectfully submits that this Court lacks jurisdiction to determine

whether the “revenues are, and will continue to be, adequate to support such collective

bargaining agreement without a detrimental impact on the provision of municipal or fire district

services.” R.I. Gen. Laws § 45-9-9. There can be no doubt that in enacting the Fiscal Stability

Act, the General Assembly sought to put the State, through the Director of Revenue, in control of

distressed municipalities and fire districts. This Court recognized that fact in its November 25,

2015 decision. The determination of whether the CBA will have a detrimental impact on the

provision of fire district services is to be made by the Receiver. It clearly was. The decision

cannot be revisited by this Court either through receivership proceedings or declaratory judgment

proceedings.

Fourth, CCFD erroneously asserts (citing no case support) that the CBAs are void

because they were not formally approved “by the Bankruptcy Judge.” See Memo at p. 8. On the

contrary, while the bankruptcy plan itself was subject to approval by the Court, a bankruptcy

court cannot interfere with municipal debtor’s ability to enter into contracts. Sections 903 and

904 of the Bankruptcy Code are designed to recognize the court's limited power over operations

of the debtor. See 11 U.S.C.A. §§ 903 and 904. Section 904 limits the power of the bankruptcy

court to "interfere with – (1) any of the political or governmental powers of the debtor; (2) any of

the property or revenues of the debtor; or (3) the debtor's use or enjoyment of any income-

producing property.” The provision makes it clear that the debtor's day-to-day activities are not

subject to court approval and that the debtor may borrow money, or enter into contract, without

court authority. The court also cannot interfere with the operations of the debtor or with the

debtor's use of its property and revenues. The restrictions imposed by 11 U.S.C. § 904 are

necessary to ensure the constitutionality of chapter 9 and to avoid the possibility that the court


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might substitute its control over the political or governmental affairs or property of the debtor for

that of the state and the elected officials of the municipality, if applicable.

Finally, CCFD asserts that “neither CBA could by (fully) funded now, given CCFD’s

most recently adopted budget, which was for a six-month period.10” Memo at p. 7. Under

CCFD’s analysis, a CBA exceeding a year could never be fully funded, since no municipality or

district in the State adopts budgets exceeding a year. Yet, the Firefighters’ Arbitration Act, along

with every other public sector bargaining law in the State, permits three year contracts. In fact,

the FFAA was amended in 2014 to explicitly permit a contract to exceed three (3) years if “a

budget commission or a receiver has been appointed for a municipality or fire district pursuant to

chapter 9 of title 45, … [in] which case the contract shall not exceed the term of five (5) years.”

R.I. Gen. Laws § 28-9.1-6. If the receiver had to certify that the CBA would be fully funded

each year of a five-year contract, a five-year contract could never be executed, making the

amendment completely meaningless.

B. The Taxpayers Of CCFD Must Either Fund A Valid Collective Bargaining

Agreement Entered Into By The Board Of Directors Or Be Subject To CivilAnd/Or Criminal Liability

1. The FFAA permits collective bargaining agreements of three years (or five years

in the case of a receivership)

CCFD argues that the CBA is void insofar as it “improperly ties the hands of subsequent

officials.” See Memo at p. 10. The argument lacks merit. Every Town and City in the state

funds multi-year collective bargaining agreements on an annual basis. A municipality (or fire

district) cannot circumvent a validly executed multi-year CBA merely by claiming that it may

only adopt budgets on an annual basis. As this Court is well-aware, under applicable law, a

10 The adoption of a six-month budget is not permitted by the District’s Charter.


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municipality, including a quasi-municipal corporation, such as the CCFD, is required to fund a

duly executed CBA, even if it exceeds a year. See Exeter-West Greenwich Regional School

District v. Exeter West Greenwich Teachers, 489 A.2d 1010 (1985).11

Moreover , this argument, if adopted, would render a receiver’s ability to execute a

collective bargaining agreement under R.I.G.L. § 45-9-9 non-existent. After all, every contract

executed by a receiver, be it for one-year or five-years, binds “subsequent officials.”

Further, CCFD relies on a common-law rule that has been trumped by the

Firefighters’ Arbitration Act. It argues that under the common-law, it is against public policy

for a body politic to exercise a governmental function which extends beyond the terms of the

members.12 But, the Firefighters’ Arbitration Act (“FFAA”) explicitly provides that collective

bargaining agreements may last three years, or five years in the case of a receivership under

chapter 9 of title 45. See R.I. Gen. Laws § 28-9.1-6. Thus, to the extent the common-law rule

cited by CCFD conflicts with the FFAA, or the FSA, the common-law is abrogated. See

Providence Rubber Co. v. Goodyear , 76 U.S. 788 (1869)(“where common law [is] in conflict

with state's statutory provisions, the common law [is] abrogated.”); Traugott v. Petit , 122 R.I. 60,

11 CCFD’s claim that Exeter-W. Greenwich does not apply to Fire Districts defies logic. Itargued in a previous submission to this Court (and incorporates the argument in footnote 9 of itsMemo) that because the Lamb Act, R.I.G.L. § 16-3-11(n), contains a provision reaffirming that public employers may contract with its employees “for services to be render ed in the ensuingfiscal year,” but the FFAA lacks that provision, that Fire Districts are not required to fund multi-year CBAs. As the Court discusses in Exeter -W. Greenwich, the only reason the GeneralAssembly inserted the aforementioned language into the Lamb Act was to make it clear that theremaining sections of the Lamb Act relating to deficit spending did not apply to collective bargaining agreements. Because there is no law that prohibits Fire Districts from deficitspending, there would be no reason for the General Assembly to enact a provision reaffirmingthat Fire Districts may contract for services in ensuing fiscal years.12 Of course, if, as CCFD argues, only the qualified voters can approve a collective bargainingagreement for the District, the common-law rule cited by CCFD has no application, since thevoters terms do not expire.


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63 (1979) (em phasis added) (“the common law governs the rights and obligations of citizens in

Rhode Island unless that law has been modified by the General Assembly”); Benevides v.

Kelly, 90 R.I. 310, 316 (1960)(emphasis added)(“It is settled in this jurisdiction that the courts

will follow the common law to the extent that it remains applicable in given circumstances

unless such law is modified by statute.”); Lombardi v. California Packing Sales Co., 83 R.I.

51, 54 (1955). That is likely why no Court in this State has invalidated a multi-year collective

bargaining agreement based on the common-law rule cited by CCFD.

Furthermore, Section 14 of the Charter specifically provides that, notwithstanding the

consolidation of districts that occurred in 2006, “the labor contracts shall continue in full force

and effect until their termination dates or until otherwise agreed by the parties or their legal

successors.” Emphasis added. At the time the Charter was amended by the General Assembly

in 2006, see P.L. 06-492, a three-year collective bargaining agreement was in effect between

CCFD and the Union. The Charter, then, not only envisions that collective bargaining

agreements may last more than a year, it explicitly provides that CBAs may bind CCFD’s legal

successors.

Finally, there is no evidence that subsequent officials would not want to be bound by the

CBA. Perhaps they would welcome a CBA that saves the District $13.9 million over a five-year

period. Once again, the CCFD seeks an opinion from this Court based on a position that future

officials may or may not take.


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2. The “qualified voters” do not need to approve the CBAs

CCFD cites no support for its claim that a collective bargaining agreement not explicitly

approved by the “qualified voters” is void.13 Once again, its argument is baseless. First, under

the FSA, the Receiver, not the “qualified voters,” nor the Board of Directors, determines whether

to execute a CBA. In fact, R.I. Gen. Laws § 45-9-9 provides, “[n]otwithstanding chapter 7 of

title 28 or any other general or special law or any charter or local ordinance to the

contrary, new collective bargaining agreements, and any amendments to new or existing

collective bargaining agreements …shall be subject to the approval of the fiscal overseer, budget

commission, or receiver.” Emphasis added. As discussed above, the Receiver determined that it

was in the best interest of the District to execute the CBA, and the Director of Revenue agreed.

No approval was required by the “qualified voters.”

Absent application of the FSA, the Board of Directors negotiates and approves collective

bargaining agreements. Pursuant to the CCFD Charter, the Board of Directors “shall have all

necessary authority to operate and conduct the business of the District as necessary.” See

Section 6(b). The Board also has “the power to appoint and/or employ … positions deemed

necessary for the efficient operation of the District.” Because the Board has the power to employ

firefighters, it must necessarily have the power to approve their employment contracts.

Furthermore, the By-Laws of the Central Coventry Fire District provide, in pertinent part,

[t]he Board of Directors shall be responsible for the negotiation of all laborcontracts; may appoint a subcommittee of no less than three (3) individuals,including no less than one (1) Directors to represent them in negotiations; shallhave final approval of said contract.

Section 1.H (Emphasis added). See Memo, Exhibit 2.

13 It is not clear whether it is CCFD’s position that the taxpayers must also be present at the bargaining table, or must approve a negotiating team.


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Finally, it would appear that by approving the budget proposed by the Board of Directors,

which was intended to fund the current collective bargaining agreement, the qualified voters did

approve the CBA.

C. The District And Board Of Directors Must Comply With The Charter And

FFAA In Determining The Method Of Providing Fire Prevention, Fire

Suppression And/Or EMS Services

CCFD seeks a declaration that the taxpayers have the sole and final determination of how

fire suppression and EMS services are provided to CCFD, including whether said services are to

be provided by employees, independent contractors (i.e. call-pay personnel), vendors, or

volunteers. The Union submits that the Court should decline to make such a broad and

speculative declaration. If the District, either through its Board of Directors or a vote of the

taxpayers, wishes to terminate its employees and hire a private ambulance service, for example,

and they vote accordingly, perhaps that specific question would be properly before this Court for

determination. But to ask this Court to make a declaration that the taxpayers have the right to

take whatever action they choose is much too broad in scope to be addressed by the Court at this

time.

To the extent the Court is inclined to make a determination as to the authority of the

taxpayers to decide whether to provide fire suppression service and EMS services, and if so, by

what method, the Union submits that nothing in the Charter gives the taxpayers the ability to

determine “how fire suppression and EMS services are provided to CCFD.” If the General

Assembly wanted to vest power with the taxpayers to determine whether “to have – or have no –

fire suppression and EMS services,” it could have said so. It did not. On the contrary, it granted

the taxpayers the authority to either approve or not approve a budget, “order such taxes and

provide for the assessing and collecting of the same,” and “raise money through taxes to


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purchase the necessary vehicles and equipment to operate and maintain a rescue unit to be

known as the Central Coventry Rescue.” See Sec. 7. Thus, the voters have the power to assess

taxes to purchase equipment and pay employees.15 If they choose not to assess taxes, or assess

insufficient taxes to provide the fire services deemed necessary by the Board of Directors, they

may be liable under Cole v. East Greenwich Fire Engine Co., 12 R.I. 202 (1878). See also

Bouchard v. Central Coventry Fire District , C.A. No. WB-12-1150 (October 18, 2013), Local

3372 v. Coventry Fire District, C.A. No. KC-15-0826 (September 28, 2015); Flynn v. King , 433

A.2d 172 (R.I.).

CCFD asserts that the District’s failure to satisfy its debts “cannot give rise to or be

circumvented by a civil action against the people of the District for breach of contract or any

other type of equitable relief deriving from the peoples’ failure to appropriate funds.” Memo at

p. 15. Essentially, CCFD argues that if the District violates a valid contract, and the District

lacks sufficient funds to remedy the violation, the taxpayers are immune from collection activity.

This Court has already rejected that argument. In Bouchard , citing West Warwick, supra, this

Court said,

[i]f quasi-municipalities are authorized by law to enter into binding agreements,which they are, then the community is bound to fund that agreement throughits appropriating authority, whether that is the city or town council or thefinancial town meetings or a district financial meeting. To conclude otherwisewould completely negate the statutory power of the district to bargain and contract.This would mean that the legislature has given with one hand and taken away withthe other.

Id. at p. 15 (emphasis added). Therefore, in Bouchard , this Court held that “although only the

voters have the power to approve or disapprove a budget, the Court still has the authority

15 Notably, the Charter makes no reference to the ability to raise taxes to pay a private ambulanceservice.


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under the Supreme Court precedent to order the district to levy additional taxes to pay a

judgment which the district does not have the sufficient money to satisfy.” See Exhibit 2 at

15 (emphasis added).

Here, the Board of Directors have “all necessary authority to operate and conduct the

business of the District as necessary,” including the power to negotiate and approve collective

bargaining agreements. See Charter, Sec. 6. CCFD argues that “the people – not the District

itself – always held the power to tax.” See Memo at pp. 14-15. Again, it is unclear whether “the

people” are represented in the instant case. But, assuming that the power to tax belongs to “the

people,” rather than “the District itself,” requiring the people to comply with a validly executed

CBA does not deprive them of their taxing authority. The taxpayers may decide to fund a

proposed budget, or not. If the taxpayers are unhappy with the budget proposed, or the structure

of services, or the terms of the collective bargaining agreement, they have the same recourse as

any other taxpayer in the state: elect new representatives.

Finally, CCFD places too much emphasis on the so-called “Separation of Powers”

amendment.

[T]he separation of powers amendments did not, either explicitly or implicitly, limitor abolish the power of the General Assembly in any other area where we have previously found its jurisdiction to be plenary. Such areas include the GeneralAssembly's duty to provide for the state's natural environment (article 1, section17); its regulatory power over lotteries (article 6, section 15); and its duty withrespect to education and public library services (article 12, section 1).

In re Request for Advisory Opinion from House of Representatives (Coastal Res. Mgmt.

Council), 961 A.2d 930, 935-36 (R.I. 2008). It also includes that power to tax (article 6, section

12). Because the power to tax is expressly granted to the legislative branch, it is not “retained by

the people.” But, even if it was, requiring taxpayers to comply with valid judgments does not

deprive them of any “reserved rights.”


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CONCLUSION

Based on the foregoing, to the extent the Court is inclined to issue declaratory relief, the

Union requests that this Court answer the stipulated questions as follows (noted in bold):

1. What is the obligation of the Board of Directors as to the terms of either of thetwo (2) CBAs negotiated between the Union and the State Receiver? Tocomply with both CBAs and propose a budget sufficient to fully fund them.

2. Must the taxpayers of the CCFD fund, through the raising of taxes, the validcollective bargaining agreement entered into by the Board of Directors? Yes.

3. Does the Charter, by virtue of the taxing authority, give the taxpayers the rightto determine the mechanism of how fire suppression and EMS services are provided to the CCFD? No.

Respectfully submitted,

Coventry Professional Firefighters, Local3372,

By its Attorney,

/s/ Elizabeth Wiens

Elizabeth Wiens, Esq. (#6827)GURSKY|WIENS Attorneys at Law, Ltd.

420 Scrabbletown Rd., Ste. C North Kingstown, R.I. 02852Tel. (401) 294-4700Fax. (401) 294-4702

CERTIFICATION

I hereby certify that on the 5th day of February, 2016, I filed and served this document

through the electronic filing system. This document is electronically filed and served and is

available for viewing and/or downloading from the Rhode Island Judiciary’s Electronic Filing

System.

/s/ Jessica Marsh

coventry firefighters response to ccfd motion for declatory judgement

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