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AFSCME AFL-CIO v. Rhode Island Board of Government of Higher Education

Superior Court of Rhode Island

December 18, 2015


Providence County Superior Court

For Plaintiff: Carly B. Iafrate, Esq.

For Defendant: George H. Rinaldi, Esq. Carolyn A. Mannis, Esq. Jeffrey W. Kasle, Esq. Jeffrey S. Michaelson, Esq.



Rhode Island Council 94, AFSCME AFL-CIO (Council 94), petitions this Court for a declaratory judgment as to the rights and powers afforded to the Rhode Island Board of Governors of Higher Education (the Board)[1] by the governing statutory scheme[2] relative to the establishment of classified and non-classified campus police positions. Specifically, Council 94 contends that the Board is barred from designating any supervisory campus police position as non-classified that has not been specifically exempted by the legislature. Jurisdiction in this instant matter is pursuant to G.L. 1956 §§ 9-33-1, et seq.


Facts and Travel

Campus police have existed at Rhode Island's public institutions, including the University of Rhode Island (URI), since 1972 pursuant to § 16-52-2. P.L. 1972, ch. 280, § 1. Section 16-52-2 states that "[t]he board of governors for higher education may appoint one or more persons who may act as police officers upon the property and highways of state colleges and universities subject to the control of the board." It is uncontested that prior to 2004, all campus police positions at URI including Campus Police Officer, Campus Police Lieutenant, and Campus Police Captain operated under the Local 528 collective bargaining agreement (CBA) represented by Council 94, and existed as classified positions, subject to the terms and conditions of the State Merit System (the Merit System).

The Merit System is set forth by §§ 36-4-1, et seq. and seeks to "guarantee to all citizens a fair and reasonable opportunity for public service, to establish conditions of service which will attract officers and employees of character and capacity, and to increase the efficiency of the governmental departments and agencies by the improvements of methods of personnel administration." Sec. 36-3-2. There are three categories of positions: classified, unclassified, and non-classified. Public positions that are subject to the Merit System are considered either "classified" or "unclassified." See § 36-4-1. "Employee positions within the State of Rhode Island, unless specifically exempted, are covered by the merit system[.]" Am. Ass'n of Univ. Professors, Univ. of R.I. Chapter v. Bd. of Regents for Educ., 118 R.I. 216, 217 n.1, 373 A.2d 168, 169 n.1 (1977).

The Merit System accordingly outlines compensation for "classified" positions and provides for both competitive and non-competitive "classified" positions. Secs. 36-4-4, 36-4-5, 36-5-9. Control of the Merit System rests with the Division of Personnel Administration of the Department of Administration (DOA).[3] Secs. 36-3-4, 36-3-5. The Merit System permits the DOA to promulgate the rules necessary to carry out its statutory provisions, but forbids it to "change [the] conditions of employment [where] covered by a collective bargaining agreement." Sec. 36-4-8(b). "Unclassified" positions are those that are designated as such by legislative act in § 36-4-2, and are also within the control of the DOA. See § 36-4-16.2 ("It is the duty of the department of administration to maintain a pay plan for unclassified employees of the state[.]")

The final category, non-classified positions, "are those which are not covered by the merit system such as employees of the Legislature (excluded by § 36-4-2.1) and teachers and research employees of the state colleges (excluded by § 16-31-12)." Gibbons v. State, 694 A.2d 664, 665 (R.I. 1997) (internal citations omitted). Section 16-31-12 has since been repealed, the relevant statute excluding certain employees of the state colleges being § 16-59-22.

In 1988, with respect to the Merit System, the legislature enacted § 16-59-22, titled "Applicability of merit system-Teacher certification-List of positions transferable to classified service." This statute addresses the status of state employees working at URI, and it explicitly declares faculty positions, presidents, vice presidents, deans, assistant deans, student employees-and administrative, instructional, research, and secretarial employees-to possess non-classified status. The statute is silent as to whether campus police positions are classified or non-classified.

In 2004, the Board created two new campus police positions titled "University Police Lieutenant" and "University Police Sergeant."[4] These positions are non-classified, and, therefore, exist outside the Merit System and operate under Local 2877, as opposed to Local 528 CBA. Such differences created considerable discord within the Campus Police Department at URI.

As such, in 2008, Council 94 filed an unfair labor practice charge with the State Labor Relations Board asserting that the Board improperly moved the position of police lieutenant from Local 528 to Local 2877 by filling the University Police Lieutenant position in lieu of the Campus Police Lieutenant position. Additionally, Council 94 filed a grievance with respect to the University Police Sergeant position. Not long after filing, Council 94 requested these complaints be held in abeyance, where they remain to this day.

In 2009, the Board filed suit in Superior Court, seeking determination "whether, under state law, campus police officers at the University of Rhode Island, Rhode Island College and Community College of Rhode Island are nonclassified employees falling under the authority of the Board of Governors or whether they're part of the classified service." Rhode Island Board of Governors v. Rhode Island Council 94, No. PC-09-4731, March 2, 2011, 3, Vogel, J (Council 94 I). This Court, Vogel, J., in a bench decision, reasoned that it did "not see anything in the statutory scheme that would suggest a legislative intent to remove [campus police officers] from classified service[.]" Id. at 14. Thus, the Court found that the legislature did not intend to provide the Board "with the ability to remove campus police officers from classified service." Id.

That decision, however, did not address the status of the University Police Lieutenant and University Police Sergeant positions. Thus, going forward, the Board interpreted the declaration as extending only to those positions already "in [the] classified service of the state subject to the merit system law." Id.

The Board maintains that its creation of the non-classified positions of University Police Lieutenant and University Police Sergeant is statutorily permitted under § 16-52-2, which provides for the appointment of campus police, and not in violation of the Merit System. This belief has prompted Council 94 to file the instant action for Declaratory Judgment that the Board does not have the power to create such non-classified positions. In response, the Board, along with URI, objects to Council 94's motion. Additionally, there are two groups of intervenors. The first group comprises five officers who hold non-classified Campus Police positions at URI: Michael Chalek, Michael Donahue, Richard Moniz, Kenneth Olson, and Erica Vieira (Chalek Intervenors). The Chalek Intervenors object, along with the Board, to Council 94's motion. Further, one of the Chalek Intervenors, Erica Vieira, has moved, separately, for summary judgment because she claims that her position, as a University Sergeant, is a new position and, hence, is not a classified position.

The second group of intervenors comprises a group of Campus Police Officers whose positions are classified: Frank Pascale, Mark Chearino, John Carey, Thomas Gugliemetti, Michael Novak, and Debra Sheldon (Pascale Intervenors). They intervene in this action in support of Council 94's motion, and further request a declaration that the non-classified University Police positions be deemed void. Finally, the DOA, as a named Defendant, takes a neutral stance in response to the motion. The Board and the Chalek Intervenors have also raised various affirmative defenses in response to Council 94's motion for declaratory judgment, including election of remedies, waiver, and laches.


Standard of Review

The Uniform Declaratory Judgments Act (the UDJA) vests the Superior Court with the "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." Sec. 9-30-1 (emphasis added); see also Tucker Estates Charlestown, LLC v. Town of Charlestown, 964 A.2d 1138, 1140 (R.I. 2009). Because the UDJA exists to "'facilitate the termination of controversies, '" it has been liberally construed in an effort to realize that goal. Bradford Assocs. v. R.I. Div. of Purchases, 772 A.2d 485, 489 (R.I. 2001) (quoting Capital Props., Inc. v. State, 749 A.2d 1069, 1080 (R.I. 1999)). However, a declaratory judgment petition is justiciable only where "appropriate facts [are] established from which the trial justice may determine that an actual controversy . . . exists." Millett v. Hoisting Eng'rs Licensing Div. of Dep't of Labor, 119 R.I. 285, 292, 377 A.2d 229, 234 (1977). A plaintiff must therefore suffer both some "injury in fact, economic or otherwise" and maintain a "legal hypothesis [by] which [it is] entitle[d] . . . to real and articulable relief." Bowen v. Mollis, 945 A.2d 314, 317 (R.I. 2008) (citations omitted).

The Board and the Chalek Intervenors argue, in part, that Council 94's motion for declaratory judgment is barred by waiver because it negotiated contractual benefits for the non-classified University Police positions that it is now challenging. The Chalek Intervenors further argue that doctrine of laches applies because Council 94 has slept on its rights by failing to raise the instant issues until 2011, when it was aware of non-classified positions when they were filled in 2005 and 2006. The arguments have been made in response to Council 94's request for declaratory judgment, but have not been submitted ...

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