29 Mass. App. Ct. 931 | Mass. App. Ct. | 1990
The facts are not in dispute. In February, 1986, the board of selectmen (board) of the town of Ayer (town) appointed John Sullivan as a police officer pursuant to the provisions of G. L. c. 41, § 96, as appearing in St. 1977, c. 246, § 1.
On February 11, 1987, Sullivan requested a “just cause” hearing regarding the board’s decision not to reappoint him. The board denied the request, claiming that no such hearing was required, but offered a “non-just cause” hearing. Sullivan filed a grievance under the collective bargaining agreement with the town, and the union thereafter filed for arbitration. The arbitrator concluded that (1) the rules and regulations of the police department were incorporated in the collective bargaining agreement; (2) those rules provided that the board has the authority to remove any mem
The town timely filed an application to vacate the arbitrator’s award on the ground that he had exceeded his authority. See G. L. c. 150C, § 11(a)(3). A Superior Court judge concluded that neither the discharge for cause requirement of the rules and regulations of the police department or of G. L. c. 41, § 96, applied to reappointments. Sullivan was not removed during the period of his appointment and, the judge ruled, as the board’s authority under § 96 to appoint police officers was nondelegable, the award of the arbitrator exceeded his authority. From the ensuing judgment, Sullivan and the union have appealed.
“[T]he question whether the arbitrator [ ] acted in excess of the authority conferred on [him], as claimed in the present case, is always open for judicial review.” School Comm. of W. Springfield v. Korbut, 373 Mass. 788, 792 (1977). School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. 651, 654 (1985). See G. L. c. 150C, § 11 (a)(3).
The power to appoint police officers pursuant to G. L. c. 41, § 96, is a matter of “inherent managerial policy,” St. 1973, c. 1078, § 4, as appearing in St. 1977, c. 347, § 2, vested in the board and is nondelegable. Sullivan and the union do not, nor could they, argue to the contrary. See Boston v. Boston Police Patrolmen’s Assn., 8 Mass. App. Ct. 220, 224-227 (1979); Boston v. Boston Police Superior Officers Fedn., 9 Mass. App. Ct. 898 (1980); Taunton v. Taunton Branch of the Mass. Police Assn., 10 Mass. App. Ct. 237, 241-245 (1980). Cf. School Comm. of Danvers v. Tyman, 372 Mass. 106, 111 (1977); Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Assoc., 372 Mass. 116, 120 (1977); School Comm. of W. Bridgewater v. West Bridgewater Teachers Assn., 372 Mass. 121, 122 (1977); School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. at 655. “We need not decide whether the parties agreed to submit the question of [Sullivan’s reappointment] to arbitration . . . because, even if they did so agree, [the board] would not be bound by an agreement to arbitrate its , [reappointment] decision.” Dennis-Yarmouth Regional Sch. Comm v. Dennis Teachers Assn., supra.
The arbitrator’s award of Sullivan’s reinstatement impinged upon the managerial prerogatives of the board. Reliance by Sullivan and the union on School Comm. of W. Springfield v. Korbut, 373 Mass. at 793-798, is misplaced. This is not a case where the board failed to follow notice, hear
Judgment affirmed.
“In any town in which such appointments are not subject to chapter thirty-one, they shall be made annually or for a term of years not exceeding three years, as the selectmen shall determine, and the selectmen may remove such officers for cause at any time during such appointment after a hearing.”
Until about 1974, the appointment, tenure and removal of the town’s police officers had been governed by the much more stringent provisions of G. L. c. 31, the civil service law.
The rules and regulations are not set out in the record, but there is no disagreement as to this provision.
The board offered Sullivan a “non-just cause” hearing regarding its decision not to reappoint him. There is no indication in the record whether Sullivan availed himself of this opportunity.