EAST GREENWICH FIREFIGHTERS ASSOCIATION, LOCAL 3328, IAFF, AFL-CIO, WILLIAM PERRY, MIKE JONES, MATT HOWARD, ANDREW CAMPBELL and ROB WARNER, in their capacities as Executive Board Members of Local 3328, and on behalf of the members of Local 3328 and JAMES M. PERRY
GAYLE CORRIGAN, in her capacity as TOWN MANAGER OF THE TOWN OF EAST GREENWICH, LINDA DYKEMAN, in her capacity as FINANCE DIRECTOR OF THE TOWN OF EAST GREENWICH, THE EAST GREENWICH TOWN COUNCIL, and SUZANNE CIENKI, SEAN TODD, ANDREW DEUTSCH, NINO GRANATIERO, and MARK SCHWAGER, in their official capacities as members of the East Greenwich Town Council
County Superior Court
Plaintiff: Elizabeth A. Wiens, Esq.
Defendant: David M. D'Agostino, Esq.
East Greenwich Firefighters Association, Local 3328, IAFF,
AFL-CIO and James M. Perry (FF Perry) filed a Complaint for
declaratory and injunctive relief, as well as a Motion for a
Temporary Restraining Order against Defendants-Gayle Corrigan
(Corrigan), in her official capacity as the Town Manager of
East Greenwich; Linda Dykeman, in her official capacity as
Finance Director of the Town of East Greenwich; and the East
Greenwich Town Council, by and through its President, Suzanne
Cienki (Town Council or EGTC)-alleging violations of the Open
Meetings Act (OMA), G.L. 1956 §§ 42-46-1 et
seq., the Town of East Greenwich Home Rule Charter (Town
Charter), and the Collective Bargaining Agreement (CBA).
Superior Court issued a Temporary Restraining Order in this
matter on August 30, 2017. Defendants were ordered to (1)
continue to provide FF Perry with health insurance coverage
while he is on Injured on Duty Leave as defined in section 22
of the CBA; (2) continue to provide FF Perry with his full
compensation pursuant to G.L. 1956 § 45-19-1, pending
further Order of the Court or a decision on the merits of
Plaintiffs' Complaint; and (3) consolidate the matter for
hearing and advance the matter on the calendar. (TRO 1-2.)
jury-waived trial commenced on September 18, 2017. On Friday,
September 22, 2017 both parties rested. On October 2, 2017,
both parties presented closing arguments. The Defendants, at
that time, raised several jurisdictional issues and defenses,
one of which- contending that Plaintiffs failed to name all
indispensable parties-the Court found to have merit. On the
next day, October 3, 2017 each party submitted post-trial
memoranda. The parties returned on October 13, 2017 for a
hearing on Plaintiffs' Motion to Amend the Verified
Complaint to name additional parties, which this Court
granted. At that time, Plaintiffs filed an Amended Verified
Complaint. Defense counsel accepted service on
Defendants' behalf and requested additional time to
present witness testimony. This Court granted Defendants'
request and allowed both parties to call additional
witnesses. On October 17, 2017, Defendants presented witness
testimony from East Greenwich Town Council Vice President
Sean Todd and East Greenwich Town Council Member Andrew
Deutsch. That same day, both parties again rested. This Court
now issues a Decision in this matter pursuant to its
jurisdiction under G. L. 1956 §§ 9-30-1 et
seq., G. L. 1956 §§ 8-2-13 and 8-2-13.1, and
Uniform Declaratory Judgments Act
to § 9-30-1 of the Uniform Declaratory Judgments Act,
the court "upon petition, following such procedure as
the court by general or special rules may prescribe, shall
have power to declare rights, status, and other legal
relations whether or not further relief is or could be
claimed." Our Supreme Court has held that the purpose of
the Uniform Declaratory Judgments Act is to "facilitate
the termination of controversies." Fireman's
Fund Ins. Co. v. E.W. Burman, Inc., 120 R.I. 841, 845,
391 A.2d 99, 101 (1978). "[T]he decision to grant a
remedy under the Declaratory Judgments Act is purely
discretionary." Lombardi v. Goodyear Loan Co.,
549 A.2d 1025, 1027 (R.I. 1988) (citing Emp'rs'
Fire Ins. Co. v. Beals, 103 R.I. 623, 628, 240 A.2d 397,
401 (1968)). As a result, the Uniform Declaratory Judgments
Act bestows broad jurisdiction on the trial courts to issue
declaratory relief. Sec. 9-30-1; see also Sullivan v.
Chafee, 703 A.2d 748, 751 (R.I. 1997) (stating that the
trial court's "decision to grant or to deny
declaratory relief under the Uniform Declaratory Judgments
Act is purely discretionary"). A party may be entitled
to declaratory relief even though alternative methods of
relief are available. Taylor v. Marshall, 119 R.I.
171, 180, 376 A.2d 712, 717 (1977).
Standard of Review
non-jury trial, '"the trial justice sits as a trier
of fact as well as of law."' Parella v.
Montalbano, 899 A.2d 1226, 1239 (R.I. 2006) (quoting
Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984)).
'"Consequently, [the trial justice] weighs and
considers the evidence, passes upon the credibility of the
witnesses, and draws proper inferences."'
Id. (quoting Hood, 478 A.2d at 184). The
trial justice may also "'draw inferences from the
testimony of witnesses, and such inferences, if reasonable,
are entitled on review to the same weight as other factual
determinations.'" DeSimone Elec., Inc. v. CMG,
Inc., 901 A.2d 613, 621 (R.I. 2006) (quoting Walton
v. Baird, 433 A.2d 963, 964 (R.I. 1981)). Furthermore,
"[w]hen rendering a decision in a non-jury trial, a
trial justice 'need not engage in extensive analysis and
discussion of all the evidence. Even brief findings and
conclusions are sufficient if they address and resolve the
controlling and essential factual issues in the
case.'" Parella, 899 A.2d at 1239 (quoting
Donnelly v. Cowsill, 716 A.2d 742, 747 (R.I. 1998)).
Indeed, the trial court is not required to
'"categorically accept or reject each piece of
evidence in [its] decision for [the Supreme] Court to uphold
it because implicit in the trial justices [sic] decision are
sufficient findings of fact to support his
rulings."' Notarantonio v. Notarantonio,
941 A.2d 138, 147 (R.I. 2008) (quoting Narragansett Elec.
Co. v. Carbone, 898 A.2d 87, 102 (R.I. 2006)).
Statement of Issues
case, the Court must essentially determine four issues: (1)
whether the Court has jurisdiction over the parties; (2)
whether FF Perry was properly terminated under any provision
of the Town Charter or the CBA; (3) whether FF Perry
materially misrepresented himself or lied on his resume and
whether there was any valid basis for his termination; and
(4) whether the Town Council violated the OMA when it
appointed Corrigan as Acting Town Manager and Town Manager.
Findings of Fact
Town of East Greenwich (Town) is a municipal corporation
having a Town Charter and is a Council-Manager form of
government. The Town has a municipal fire department,
following the dissolution of the East Greenwich Fire District
and the incorporation of the Fire District into the Town in
2016, the Town implemented the "Town of East Greenwich
Fire Department Lateral Transfer Procedures, " which
established a hiring process for firefighters transferring
from other fire departments. (Pls.' Ex. 1.) The stated
reasons were to promote the hiring of experienced
firefighters that intended to remain at the East Greenwich
Fire Department (EGFD). The EGFD wanted to avoid going
through the hiring and training process, to ultimately have
the new hires seek employment elsewhere. (Tr. 29, Sept. 18,
19, and 20, 2017) (Tr. I). In accordance with the procedures,
the EGFD posted the job position and requested applicants
submit an application or resume. (Pls.' Ex. 2.) FF Perry
applied to the EGFD as a prospective lateral transfer from
the Coventry Fire Department, where he had been a career
firefighter for seventeen years; serving as Lieutenant for
the seven years leading up to his transfer. (Pls.' Exs.
4, 5.) FF Perry had also worked as a per diem dispatcher with
the EGFD since November 2014.
response to the job posting, FF Perry submitted an
application and resume though both were not required.
(Pls.' Ex. 2.) FF Perry's resume contained the
"FF Level 1 & 2 NFPA 1001-1002 (Coventry Fire
Academy State of RI EMT-Cardiac
" Core Hazmat Operations and Mission-Specific
PPE Endotracheal Intubation
"Confined Space Awareness ACLS
" ICS/FEMA 100, 200, 241, 242, 301, 700, 800
"Electric and propane vehicle safety
"RI CDL Class-A License"
(Pls.' Ex. 4.) Thereafter, in May of 2016, an interview
panel consisting of Captain Ken Montville, Captain Thomas
Mears, Deputy Chief Michael Sullivan, and Union Executive
Board Member Matthew Howard-along with Chief McGillivray and
the Town's Director of Human Resources-interviewed FF
Perry. Subsequent to that interview, FF Perry had a second
interview with the former Town Manager, Chief McGillivray,
and the Director of Human Resources. (Tr. I 195-96.) On
August 2, 2016, the Town appointed FF Perry to the EGFD as a
probationary firefighter. (Pls.' Ex. 7.)
the eleven months FF Perry served as a probationary
firefighter, he successfully completed trainings and received
excellent reviews from his supervisors on three separate
evaluations, two of which were completed by Chief
McGillivray. On June 30, 2017, FF Perry suffered a
work-related injury while assisting a patient on a rescue
call. As a result of the injury he sustained, FF Perry sought
medical treatment from a physician who advised him that he
was then not capable of performing his job duties with his
injury. After filing his paperwork with the Town, the Town
acknowledged FF Perry's injury and subsequently placed FF
Perry on "Injured on Duty Leave" (IOD) on July 1,
2017. Since that date, the Town has continued paying FF
Perry's required salary and benefits pursuant to §
45-19-1 and through the court Order.
of 2017, the Town posted a notice of a special Town Council
meeting scheduled for 8:00 a.m. on June 19, 2017 (June 19
meeting). (Pls.' Ex. 12.) The notice contained only one
agenda item, which indicated that there would be an
"Executive Session" and that the session would be
"[c]losed pursuant to RIGL 42-46-5(a)(1) and
42-46-5(a)(2), discussions concerning the job performance,
character, or physical or mental health of a person in the
employ of the Town of East Greenwich . . . . "
Id. (emphasis added). During the executive session
at the June 19, 2017 meeting, the Town Council voted to
appoint Gayle Corrigan as "Acting Town
regularly scheduled meeting of the Town Council was held on
July 24, 2017. The Town posted an agenda containing one item
related to the Town Manager position: "Discussion of
Town Manager position." (Pls.' Ex. 19)
(emphasis added). At that meeting, in open session, the Town
Council voted in favor of a "[m]otion to remove the
designation of 'acting' as it relates to the
appointment of Gayle Corrigan as the Town Manager."
(Pls.' Ex. 20.) The Town Council then voted to go into an
executive session where the Town Council members and Corrigan
agreed upon an Employment Agreement. (Defs.' Ex. X.)
Manager, Corrigan began a review of the EGFD's Lateral
Hiring Procedures and its six lateral hires. It is undisputed
that Corrigan did not agree with lateral hiring as a business
practice. In early August 2017, a meeting was held at which
Corrigan met with Chief McGillivray. Corrigan asked Chief
McGillivray questions about FF Perry. She asked why FF Perry
was hired as FF Perry's brother, William Perry, was a
Lieutenant with the EGFD. She questioned whether such hiring
violated the Town's alleged anti-nepotism policy. Chief
McGillivray informed Corrigan that Lieutenant Perry received
an advisory opinion from the Rhode Island Ethics Commission
upon the request of the Director of Human Resources. (Tr.
358-59, Sept. 20 and 21, 2017) (Tr. II). Corrigan told Chief
McGillivray that she herself had conducted an audit of the
six lateral transfers' personnel files. She found that
three of the six did not have Firefighter Level 1 and 2
certificates in his personnel file. Corrigan later requested
that Chief McGillivray send her any certificates he had for
three of the six lateral transfers, including FF Perry, by
the end of the day on Thursday, August 17, 2017.
Tuesday, August 15, 2017, before complying with
Corrigan's request, Chief McGillivray was out of work on
leave. He originally notified the former Chief of Staff that
he would be out from August 15 until August 29, 2017. Chief
McGillivray notified Corrigan that Captain Mears would be
filling in as Acting Fire Chief until his return. Although
Chief McGillivray's initial notice stated that he would
return to work on August 29, 2017, Chief McGillivray sent a
subsequent notice to the Town on Friday, August 18, 2017,
which Corrigan received, stating that he would be returning
to work the following Monday, August 21, 2017, earlier than
Chief McGillivray's impending return on Monday, the Town
Council scheduled a special meeting for Saturday, August 19,
2017 at 8:45 a.m. to appoint an Acting Fire Chief. The
meeting's agenda contained only one item,
"[a]ppointment of acting Fire Chief pursuant to
Charter Section 109-1(B), until August 29, 2017."
(Pls.' Ex. 28.) (emphasis added). According to the notes
from that meeting taken by the Town Solicitor, the Town
Council appointed Captain Mears as Acting Fire Chief for
"operations." (Pls.' Ex. 29.)
that day, at approximately 10:18 p.m., Corrigan sent an
e-mail to FF Perry stating that he had been dismissed from
his position as a probationary firefighter-two or three days
before the end of FF Perry's probationary term.
Defendants' Challenges of the Court's
closing argument, Defendants asserted that the Court lacks
jurisdiction to decide this matter. Defendants claimed four
bases for lack of jurisdiction: (1) the East Greenwich
Firefighters Association, Local 3328, IAFF, AFL-CIO (the
Union) could not bring suit as an entity; (2) the Court lacks
subject matter jurisdiction over Plaintiffs because
Plaintiffs failed to name all Town Council members as
indispensable parties; (3) the East Greenwich Firefighters
Association, Local 3328, IAFF, AFL-CIO (the Union) and FF
Perry lack standing to bring claims against the Town Council
under the OMA; and (4) the Union's remedies are only
available through arbitration.
FF Perry's Standing
Defendants first argue that FF Perry does not have standing
because he is not considered to be an "aggrieved
party" under the OMA. Section 42-46-8(a) of the OMA
grants standing to "[a]ny citizen or entity of the state
who is aggrieved as a result of violations of the provisions
of [the] chapter . . . ." An aggrieved party has the
right to file a complaint with the attorney general, §
42-46-8(a), or retain private counsel for purposes of suing
in superior court. Sec. 42-46-8(c). "A party acquires
standing either by suffering an injury in fact or as the
beneficiary of express statutory authority granting standing.
The OMA contains a broad grant of statutory standing."
Tanner v. Town Council of E. Greenwich, 880 A.2d
784, 792 (R.I. 2005). The Supreme Court of Rhode Island has
held "[i]n statutory standing cases . . . the analysis
consists of a straight statutory construction of the relevant
statute to determine upon whom the Legislature conferred
standing and whether the claimant in question falls in that
category." Id. at 792 n.6 (citation omitted).
"In conducting this analysis, [a court does] not look at
the eventuality of success on the merits but, rather, at
whether a party is arguably within the zone of interests to
be protected or regulated by the statute in question."
"aggrieved" is not directly defined in the OMA,
this Court finds that FF Perry is an aggrieved party under
the construct of the OMA since Corrigan's appointment as
Town Manager put Corrigan in a position to terminate FF
Perry, and FF Perry was ultimately terminated from the EGFD
as a result. See Duffy v. Sarault, 702 F.Supp. 387,
394 (D.R.I. 1988), aff'd, 892 F.2d 139 (1st Cir.
1989) ("It is difficult to imagine a situation in which
a person is more aggrieved than when his or her job is
Defendants assert that the Union lacks standing because it is
not registered with the Rhode Island Secretary of State as a
corporation. In support of this argument, Defendants claim
that the Union's corporate status was revoked in 2009.
Defendants, however, have submitted no evidence of this
revocation. Nonetheless, this Court rejects this argument
since unions are distinguishable from corporations.
G.L. 1956 § 28-8-1, a union may bring suit on behalf of
"Suits or actions at law for the violation by an
employer of contracts of employment between the employer and
his or her employees who are represented by a labor union as
their legally constituted bargaining agent, and whose rights
and duties as employees are set forth in a collective
bargaining agreement between the employer and labor union, as
the legal representative of the employees, may be brought in
the name of the union for the benefit of the employees."
§ 28-8-2 also states, "[l]abor organizations may
sue as a legal entity for the benefit and on behalf of the
employees whom they represent in the superior court of the
state of Rhode Island having jurisdiction of the
Defendants admitted that the Union is the exclusive
bargaining agent for the employees of the EGFD. In addition,
Plaintiffs filed an Amended Verified Complaint adding Mike
Jones, Matt Howard, Andrew Campbell, and Rob Warner-the
Executive Board Members of the Local 3328-as representatives
of the Union. Furthermore, this Court has already found that
FF Perry has standing under the OMA. Therefore, because FF
Perry has standing to bring suit, this Court finds that the
Union also has standing pursuant to § 28-8-1.
Defendants also argue that the Court lacks jurisdiction
because Plaintiffs did not name all indispensable parties.
Specifically, Defendants contend that Plaintiffs were
required to join all members of the Town Council, each in his
official capacity-namely, Town Council President Sean Todd
and Town Council members Andrew Deutsch, Nino Granatiero, and
Dr. Mark Schwager.
to the Uniform Declaratory Judgments Act, "[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." Sec. 9-30-11. Our Supreme Court, in
Sullivan, held "plaintiffs' failure to join
all  city council members as parties to the lawsuit is
fatal to their declaratory-judgment action." 703 A.2d at
754. Moreover, "[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." Rosano v.
Mortg. Elec. Registration Sys., Inc., 91 A.3d
336, 340 (R.I. 2014) (affirming the hearing justice's
decision to dismiss the action because of the plaintiff's
failure to join all indispensable parties that had an actual
and essential interest in the matter). The Sullivan
Court explicitly stated 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-especially because it was not
impracticable (because of board size or unavailability for
service of process) for the plaintiff mayor to have joined
all interested board members."' Sullivan,
703 A.2d at 754 (quoting In re City of Warwick, 97
R.I. at 298, 197 A.2d at 289).
the additional parties, Plaintiffs have made a Motion to
Amend the Verified Complaint. It is well settled that in
Rhode Island, the court "assumes a liberal position with
respect to the amendment of pleadings under Rule 15, and
'affords great deference to the trial justice's
ruling on a motion to amend.'" Catucci v.
Pacheco, 866 A.2d 509, 513 (R.I. 2005) (citing
Kenney v. Providence Gas Co., 118 R.I. 134, 140, 372
A.2d 510, 513 (1977) (quoting Normandin v. Levine,
621 A.2d 713, 715 (R.I. 1993))). "[The Court] ha[s] long
held both that the decision about whether to permit a party
to amend his or her pleading is one that is left exclusively
to the sound discretion of the trial justice and that we
shall not disturb that decision unless it constitutes an
abuse of discretion." Normandin, 621 A.2d at
to § 9-30-11 and our Supreme Court precedent in
Sullivan, this Court granted Plaintiffs' Motion
for Leave to Amend the Verified Complaint to join the four
Town Council members who were not individually named as
Defendants. See Super. R. Civ. P. 15. On October 13,
2017, Plaintiffs cured any jurisdictional defect by filing an
Amended Verified Complaint including all five Town Council
members in their official capacities as Defendants.
final jurisdictional argument asserted by Defendants in their
closing argument is that under § 46-8 of the CBA,
"[i]f an agreement [on the grievance] cannot be reached
to the satisfaction of the [Union] . . . [it] shall request
arbitration of the grievance . . . [t]he selection of the
arbitrator and conduct of the proceedings shall be govern[ed]
by the [AAA rules]. The decision of the arbitrator shall be
final and binding." (Defs.' Post-Tr. Mem. 9.)
Defendants contend that FF Perry is bound by the terms of the
CBA, and thereby the arbitration clause, because the Union
has secured counsel on FF Perry's behalf-in other words,
FF Perry is a member of the Union and subject to the terms of
the CBA. Id.
Rhode Island Supreme Court in City of Newport v. Local
1080, Int'l Ass'n of Firefighters, AFL-CIO
(City of Newport v. Local 1080) determined that
retired firefighters were not subject to the grievance
process included in the collective bargaining agreement
because "the parties did not intend to arbitrate
disputes regarding retiree healthcare . . . ." 54 A.3d
976, 982 (R.I. 2012). The court held that "such disputes
must be resolved, if at all, judicially rather than through
arbitration." Id. Commenting on City of
Newport v. Local 1080, our Supreme Court in
Providence Sch. Bd. v. Providence Teachers Union, Local
958, AFT, AFL-CIO stated: "[w]e determined that
several provisions of the collective-bargaining agreement
compelled this conclusion, including the provision defining
the terms 'member, ' 'employee, ' and
'fire fighter' in such a way that plainly excluded
retired firefighters." 68 A.3d 505, 510 (R.I. 2013)
(citing City of Newport v. Local 1080, 54 A.3d at
reviewing the CBA in the instant matter, this Court finds
that the grievance procedures found in § 46-8 of the CBA
do not apply to firefighters on probationary status. Section
1-2 of the CBA states: "The Town of East Greenwich
recognizes the East Greenwich Fire Fighters Association Local
3328, International Association of Fire Fighters, AFL-CIO as
the exclusive bargaining agent for all permanent employees of
the East Greenwich Fire Department . . . ." (Defs.'
Ex. B.) Section 9-1 of the CBA provides: "Every employee
appointed to a position in the service of the East Greenwich
Fire Department shall be required to complete a probation
period of twelve (12) months before obtaining permanent
status." Id. A reading of both provisions
indicates that the CBA is the exclusive bargaining agent for
all permanent employees, but firefighters must complete a
probation period of twelve months before obtaining permanent
status. See City of Newport v. Local 1080, 54 A.3d
undisputed that FF Perry was still on probationary status
when he was terminated. Based on the language contained
within §§ 1-2 and 9-1 of the CBA, this Court finds
that firefighters on probationary status are not considered
to be permanent firefighters, and therefore, the CBA is not
the exclusive bargaining agent for probationary firefighters.
Consequently, § 46-8 is not applicable to this matter,
which must, as a result "be resolved, if at all,
judicially rather than through arbitration." City of
Newport v. Local 1080, 54 A.3d at 982.
Authority to Terminate FF Perry Under the Town Charter or
issue is whether the Town Charter or CBA provided Corrigan
with the authority to terminate FF Perry from his employment
as a probationary firefighter. The parties have argued that
under the Town Charter and the CBA, there are four distinct
methods to terminate an employee.
Town Charter § C-109.2(A)(2)
the time of their permanent appointment, all members of the
[Fire] Department shall have served for a period of not
less than 12 months in probationary status, during which
time they may be removed by the Town Manager, with or
without cause, upon the recommendation of the Fire
Chief." (Defs.' Ex. G) (emphasis added).
sent FF Perry a termination letter pursuant to §
C-109.2(A)(2) of the Town Charter-Plaintiffs' Exhibit
30-in which Corrigan wrote:
"Dear Mr. James Perry:
"This letter is to inform you that, pursuant to my
authority under the Town of East Greenwich Home Rule Charter,
§ C-109.2(A)(2), you are hereby removed and dismissed
from your position as a probationary firefighter with the
East Greenwich Fire Department effective immediately."
(Pls.' Ex. 30.)
Section C-109.2(A)(2) of the Town Charter was the only basis
cited by the Town in the letter terminating FF Perry.
Plaintiffs allege that Corrigan violated § C-109.2(A)(2)
of the Town Charter when she terminated FF Perry without the
recommendation of the Fire Chief. Specifically, Plaintiffs
assert that § C-109.2(A)(2) does not grant the Town
Manager the unilateral authority to terminate a probationary
firefighter. Instead, they maintain, the provision explicitly
requires that the Town Manager must receive a recommendation
from the Fire Chief before terminating a probationary
firefighter. Thus, Plaintiffs contend FF Perry's
termination under Town Charter § C-109.2(A)(2) is
invalid. The Town has argued that Corrigan had some inherent
special power as the Acting Fire Chief for
Rhode Island Supreme Court has held that "when
construing a municipal charter, the usual rules of statutory
construction apply." Providence Teachers Union Local
No. 958 v. Napolitano, 554 A.2d 641, 643 (R.I. 1989)
(citing Coventry Sch. Comm. v. Richtarik, 122 R.I.
707, 713, 411 A.2d 912, 915 (1980)). Moreover, it is well
settled that "the provisions of city charters should be
construed so as to give, so far as possible, reasonable
meaning and effect to all parts of the section in
question." Carter v. City of Pawtucket, 115
R.I. 134, 138, 341 A.2d 53, 56 (1975). However, "when
the language of the statute is clear and unambiguous, the
court must interpret it literally, giving the words of the
statute their plain and ordinary meanings." Labor
Ready Ne., Inc. v. McConaghy, 849 A.2d 340, 345 (R.I.
2004). Based on the plain and ordinary meaning of the words
contained within the provision and by applying their
reasonable meaning, it is evident that § C-109.2(A)(2)
of the Town Charter clearly requires that a Town Manager
receive the recommendation of the Fire Chief to terminate a
probationary firefighter. Carter, 115 R.I. at 138,
341 A.2d at 56.
Corrigan cited Town Charter § C-109.2(A)(2) as the
provision granting her the authority to terminate FF Perry,
it is undisputed that Corrigan never received a
recommendation to terminate FF Perry from Chief McGillivray
or Acting Fire Chief Mears. (Tr. I 46-47, 142.) It is
undisputed that Corrigan never even attempted to discuss the
termination with Chief McGillivray or Acting Fire Chief Mears
before she terminated FF Perry. Id.
Corrigan terminated FF Perry without any recommendation from
the Fire Chief, the Town has argued that Corrigan had some
authority to act as Acting Fire Chief. Apparently, in this
instance, in order to attempt to effectuate that grant of
authority, the Town set up a special Town Council meeting to
appoint an Acting Fire Chief. The Plaintiffs question whether
Chief McGillivray's absence from August 15 through August
29, 2017-only two weeks-falls within the definition of an
"extended absence or disability" to necessitate the
appointment of an Acting Fire Chief. Fire Chief McGillivray
and Captain Mears both testified that throughout the duration
of their individual careers with the EGFD, they had never
heard of the Town Council calling a special meeting to
appoint an Acting Fire Chief. (Tr. I 43, 47, 156-58.)
C-109.1(B) of the Town Charter states: "In case of the
extended absence or disability of the Fire Chief,
the Town Manager shall appoint an Acting Fire Chief with the
approval of the Town Council." (Defs.' Ex. G.)
(Emphasis added.) On Friday, August 18, 2017, the day before
the meeting, Corrigan was aware that Chief McGillivray would
be returning to work the following Monday, August 21, 2017.
(Tr. II 434.) Notably, § C-87 of the Town Charter-the
provision dictating when an Acting Town Manager shall be
designated-quantifies a temporary leave as a period of time
less than thirty-five consecutive days: "[T]he
Town Manager shall designate, subject to approval of the Town
Council, a qualified officer of the Town to exercise the
powers and perform the duties of Town Manager during his or
her temporary absence or disability for a period of 35
consecutive days or less." (Defs.' Ex. G.) This was
the first and only time the Town Council appointed an Acting
Fire Chief. Defendants rely on § C-109.1(B) of the Town
Charter to support their contention that the special meeting
of the Town Council held on August 19, 2017 was necessary to
appoint an Acting Fire Chief.
Town Council convened a special Town Council meeting on
Saturday, August 19, 2017 at 8:45 a.m. Despite the notice
stating, "Appointment of acting Fire Chief, "
(Pls.' Ex. 28) the Town Council voted to appoint Captain
Mears as Acting Fire Chief "for operational
purposes." Fire Chief McGillivray and Captain Mears
testified that they had never heard of being an Acting Fire
Chief for operational or administrative purpose. See
Tr. I 43, 47, 156-58. In fact, Captain Mears testified that
Corrigan informed him through text message, phone call, and
voicemail that the Town Council designated him Acting Fire
Chief. Id. at 157-58. Captain Mears asserts he did
not know he was appointed Acting Fire Chief "for
operations" until it was elicited through testimony in
this matter. Id. Although her text message and the
voicemail do not include the "operational purpose"
language, Corrigan claims that she told Captain Mears he was
Acting Fire Chief for "operations only" during a
phone call for which there is no record. (Tr. II 570.)
testified that since Captain Mears was appointed Acting Fire
Chief "for operations only, " she then-through her
authority as Town Manager-would serve as Acting Fire Chief
"for administrative purposes"; whereby she retained
all administrative responsibilities and authority of the Fire
Chief. See Tr. II 430. Pursuant to Corrigan's
reasoning, in Chief McGillivray's absence, she had the
authority to terminate FF Perry under § C-109.2(A)(2) of
the Town Charter because she as the Town Manager had her own
recommendation as the Acting Fire Chief "for
administrative purposes." There has been no other
evidence presented that Corrigan undertook any administrative
task aside from terminating FF Perry as Acting Fire Chief for
Defendants rely on the Town Manager's general
administrative powers under the Town Charter to support
Corrigan's authority to act as Fire Chief. Section
C-109.1(A) of the Town Charter provides: "The Fire Chief
and Deputy Fire Chief shall be appointed by the Town Manager
with the approval of the Town Council." (Defs.' Ex.
G.) Moreover, § C-85 of the Town Charter designates the
"Powers and Duties" of the Town Manager. Section
C-85 states, in relevant part:
"The Town Manager shall be the chief administrative
officer of the Town. With the consent of the Town Council he
or she may head one or more departments. He or she shall be
responsible to the Town Council for the proper administration
of all affairs of the Town and to that end has power and
shall be required to:
"A. Appoint and, when necessary for the good of the
service, suspend or remove any officer, including department
heads and employees of the Town, except as otherwise provided
by this Charter or law or personnel ordinance. All
appointments, suspensions and removals of departments and
officers made by the Town Manager shall be subject to the
approval of a majority of all members of the Town
in either source of authority cited does it state that the
Town Manager has the power to appoint herself as Acting Fire
Chief without at least the approval of the Town Council.
Id. Nowhere in the Town Charter or the CBA has the
Town drawn a distinction between an Acting Fire Chief
"for operations" and an Acting Fire Chief "for
administrative purposes." There is also no evidence that
Corrigan received the Town Council's approval to act as
the Acting Fire Chief for "administrative
Court finds Corrigan did not properly terminate FF Perry
under § C-109.2(A)(2) of the Town Charter. Corrigan did
not receive the recommendation from either the Fire Chief or
Acting Fire Chief as required by the Town Charter. The
Town's argument that Corrigan could appoint herself
Acting Fire Chief for "administrative purposes"-a
position that does not exist- without any authority from the
Town Council so that she could then recommend, to herself as
Town Manager, that FF Perry be fired is not persuasive to
this Court and somewhat absurd. See Carter, 115 R.I.
at 138, 341 A.2d at 56 (holding that city charters should be
construed to give "reasonable meaning and effect"
to all parts of the provision in question).
Collective Bargaining Agreement § 9-2
employee may be dismissed at any time during the
probation period when, in the judgment of the Chief
and the Town, the quality of his work is not such as
to merit continuation of employment." (Defs.'
Ex. B.) (emphasis added).
their arguments, Defendants note that § 9-2 of the CBA
also grants the Town Manager the authority to terminate
well settled that when a court is tasked with interpreting a
contract, it must first determine whether "the language
of a contractual agreement is plain and unambiguous"
and, if so, "its meaning should be determined without
reference to extrinsic facts or aids."
Clark-Fitzpatrick, Inc. v. Gill, 652 A.2d 440, 443
(R.I. 1994). "In determining whether a contract is clear
and unambiguous, the document must be viewed in its entirety
and its language be given its plain, ordinary and usual
meaning." Paradis v. Greater Providence Deposit
Corp., 651 A.2d 738, 741 (R.I. 1994). "In applying
this standard, [our Supreme Court] has consistently held that
a contract is ambiguous only when it is reasonably and
clearly susceptible of more than one interpretation."
Id. Accordingly, § 9-1 of the CBA clearly and
unambiguously provides that the Town Manager may terminate a
probationary firefighter only when the Fire Chief and the
Town agree that the quality of the firefighter's work
does not merit the continuation of his or her employment.
there was no evidence presented to suggest that the quality
of FF Perry's work did not merit continuation. Corrigan
never made that argument, nor, based on the testimony, could
she have done so with any evidence in support. In her review
of FF Perry's personnel file, Corrigan learned that FF
Perry placed first in the interview process and performed
well on his job performance evaluations. (Pls.' Ex. 8.)
Included in FF Perry's personnel file were three
evaluations completed by supervisors during his probationary
period. One evaluation completed by Chief McGillivray on
January 10, 2017 stated that FF Perry "[c]ompletes all
assigned duties/tasks without prompting"; that FF Perry
"[s]hows pride in his work! Always first to get to daily
duties"; and is a "[v]ery positive and excellent
worker!" Id. Another evaluation completed by
Chief McGillivray in May of 2017 stated that FF Perry showed
"[e]xcellent work ethic. Non-stop; [s]ets a great
example"; that FF Perry was "thorough in
accomplishing all tasks/duties assigned"; and that he
"does an excellent job and I wouldn't be surprised
if this person becomes a leader in the future."
Id. A third evaluation by Lieutenant Grady from
August 11, 2017, only eight days before FF Perry's
termination, stated that FF Perry "has a great deal of
experience in [his] field and eager to attend
repeat/additional training" and that he "performs
Fire/EMS duties professionally with confidence and little to
no supervision." Id. Corrigan also knew from
his personnel file that FF Perry had twenty-seven years of
experience as a firefighter at the time he applied for a
position with the EGFD. This experience included seven years
as a Lieutenant with the Coventry Fire District where he
assisted in the training of new firefighters. (Tr. I 170; Tr.
§ 9-2 establishes two requirements to terminate a
probationary firefighter: (1) the Fire Chief and the Town
agree that the firefighter should be dismissed and (2) the
quality of the firefighter's work is not such as to merit
continuation of employment. The first requirement of §
9-2 of the CBA was not met since it is undisputed that
Corrigan did not have a recommendation from either Chief
McGillivray or Acting Fire Chief Mears. It is also undisputed
that FF Perry was certainly qualified to perform his job;
evidenced by his nearly twenty-eight years of fire service
and the excellent reviews he received on his evaluations from
his superiors as a probationary firefighter with the EGFD.
The quality of FF Perry's work did not warrant dismissal.
Accordingly, Corrigan lacked the authority to terminate FF
Perry under § 9-2 of the CBA.
Town Charter § C-109.2(B)
member of the permanent Department, below the rank
of Fire Chief and Deputy Fire Chief, may be dismissed by
the Town Manager with the approval of the Town Council
in accordance with the General Laws of Rhode Island."
(Defs.' Ex. G.) (emphasis added).
also argue that Corrigan did not have proper authority under
§ C-109.2(B) of the Town Charter to terminate FF Perry.
The plain and clear language of § C-109.2(B) applies
only to permanent members of the EGFD and requires that the
Town Manager receive approval from the Town Council. It is
undisputed that FF Perry was on probationary status at the
time he was terminated. It is also undisputed that Corrigan
did not have the approval of the Town Council to terminate FF
Perry. Section C-109.2(B) of the Town Charter is not
applicable to a probationary employee and, in any event,
would have required the Town Council's approval, which
Corrigan did not have. Clearly, Corrigan did not have the
authority to terminate Firefighter Perry under §
C-109.2(B). See Paradis, 651 A.2d at 741;
Clark-Fitzpatrick, Inc., 652 A.2d at 443.
Collective Bargaining Agreement § 45-1
employee may be dismissed at any time for just cause
ascertained after careful and factual consideration.
An employee who is dismissed shall, at the time of his
dismissal, be given a written explanation of the reason(s)
for his dismissal, and if later reinstated, shall be
compensated for all back pay and benefits which would have
been afforded him had he not been dismissed."
(Defs.' Ex. B.) (emphasis added).
further assert that § 45-1 of the CBA granted Corrigan
the authority to terminate FF Perry.
and ordinary reading of § 45-1 of the CBA provides a
basis for terminating permanent firefighters and does not
refer to firefighters on probation. See
Clark-Fitzpatrick, Inc., 652 A.2d at 443. Consequently,
this Court does not find that this section applies to FF
Perry. Nevertheless, since Defendants have argued just cause,
for the purposes of discussion, this Court will address the
provision as if it is applicable to firefighters on
probationary status. The language within this provision of
the CBA plainly and unambiguously indicates that an employee
may be terminated if the Town can provide "just
cause" for the termination after "careful and
factual consideration." Defs.' Ex. B; see
Paradis, 651 A.2d at 741. The Court will, therefore,
consider whether Corrigan acted in accordance with the CBA
requirements; specifically, whether her actions were
supported by "just cause" after "careful and
Town, in 2016, instituted lateral transfer procedures and
hiring practices. The former Town Manager, the Town Council,
and Chief McGillivray had all supported the lateral transfer
procedures because lateral hiring would decrease the amount
of spending on overtime compensation and promote employee
retention. (Tr. I 28-29.) The Town drafted job requirements,
created a pay schedule and training program, and hired six
firefighters-who left other employment to join the EGFD,
trained for six weeks, and worked for EGFD for nearly a full
initial involvement with the Town began when her company,
Providence Analytics, was hired by the Town to conduct a
fiscal analysis of the school department and, eventually, the
entire municipality. (Tr. II 439-40.) Corrigan stated that
her analysis revealed a structural deficit and, in her
professional opinion, the lateral transfer procedures were a
major contributing factor. Id. at 508. Corrigan
further testified that her prior work experiences, along with
the results of her analysis, led her to disagree with the
lateral transfer process as a business practice for many
reasons, including financial impact and diversity concerns.
Id. at 421-24.
Corrigan became Acting Town Manager, she began an actual
review of the lateral transfer procedures as part of the
"One Town" restructuring plan, developed by
Corrigan. Id. at 501. Corrigan began her own
"audit" of only the six lateral transfers'
files; she did not review the files of any other EGFD
firefighters. Id. at 470.
time, Corrigan knew or should have known from the files that
FF Perry met all of the job requirements established by the
EGFD Lateral Hiring Procedures. These requirements were
contained in the "Conditional Job Offer" sent to FF
Perry on August 2, 2016:
"All employees hired for the position of Firefighter/EMT
shall meet the following requirement[s] prior to an official
"1. Be a citizen of the United States of America.
"2. Pass a pre-employment drug test and physical
examination by physicians chosen and paid for by said
"3. Be at least eighteen (18) years of age.
"4. Be a licensed Rhode Island EMT-C or higher and
maintain Rhode Island EMT-C certification as a condition of
"5. Pass a National and State criminal background check
(RIGL 45-2-3.4) and motor vehicle history.
"6. Possess a valid driver's license."
(Pls.' Ex. 7.)
the "Conditional Job Offer" contained an additional
requirement of submitting proof of "a duly licensed
Rhode Island EMT-C." Id. This language is also
reflected in CBA § 11, "New Employees."
(Defs.' Ex. B.) Corrigan admitted that she believed FF
Perry met these requirements as well as the requirements set
forth in the Lateral Transfer Procedures:
"2. The resumes/applications will be reviewed by the
Director of Human Resources and Fire Chief . . . .
"3. An interview team consisting of the Deputy Chief, a
Union Representative, and 2 Captains using the Town's
scoring system and selected interview questions will
interview those chosen.
"4. The resumes/applications will be reviewed by the
. . . .
"6. The Town Manager shall interview/review the top
candidates prior [to] a conditional offer of employment.
. . . .
"9. If the candidate has not passed a RIAFC Physical
Performance Assessment (PPA) within the last 12 months, at
the time of application, they will be required to complete
and pass the next PPA to maintain their employment . . .
." (Pls.' Ex. 1; Tr. II 411-12.)
does the EGFD or State law require that a firefighter must be
certified in Firefighter Level 1 and 2 to the NFPA 1001
standards-or, more importantly, ...