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East Greenwich Firefighters Association v. Corrigan

Superior Court of Rhode Island

November 8, 2017

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
v.
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

         Kent County Superior Court

          For Plaintiff: Elizabeth A. Wiens, Esq.

          For Defendant: David M. D'Agostino, Esq.

          DECISION

          MCGUIRL, J.

         Plaintiffs 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).

         The 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.)

         A 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 § 42-46-8(c).

         I Jurisdiction

         A Uniform Declaratory Judgments Act

         Pursuant 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).

         II Standard of Review

         In a 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)).

         III Statement of Issues

         In this 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.

         IV Findings of Fact

         The 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 July 2014.

         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.

         In 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 following section:

"CERTIFICATIONS
"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.[1] (Pls.' Ex. 7.)

         During 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.

         In June 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 Manager."[2]

         A 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.)

         As Town 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.

         On 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 originally planned.

         Despite 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.)

         Later 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.

         1 Defendants' Challenges of the Court's Jurisdiction

         During 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.

         a FF Perry's Standing

         The 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." Id.

         Although "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 abolished.").[3]

         b Union's Standing

         Moreover, 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.

         Under G.L. 1956 § 28-8-1, a union may bring suit on behalf of union members:

"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."

         Moreover, § 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 parties."

         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.

         c Indispensable Parties

         The 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.

         Pursuant 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).

         To name 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 715.

         Pursuant 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.

         d Arbitration Clause

         The 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.

         The 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 981).

         Upon 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 at 982.

         It is 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.

         1 Authority to Terminate FF Perry Under the Town Charter or CBA

         At 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.

         a Town Charter § C-109.2(A)(2)

         "At 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).

         Corrigan 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.

         The 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 "administrative purposes."

         The 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.

         Although 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.

         Since 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.)

         Section 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.

         The 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.)

         Corrigan 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 "administrative purposes."[4]

         The 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 Council."

         Nowhere 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 purposes."

         This 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).

         b Collective Bargaining Agreement § 9-2

         "An 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).

         In their arguments, Defendants note that § 9-2 of the CBA also grants the Town Manager the authority to terminate probationary firefighters.

         It is 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. Id.

         Here, 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. II 580.)

         CBA § 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.

         c Town Charter § C-109.2(B)

         "Any 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).

         Plaintiffs 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.

         d Collective Bargaining Agreement § 45-1

         "An 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).

         Defendants further assert that § 45-1 of the CBA granted Corrigan the authority to terminate FF Perry.

         A plain 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 factual consideration."

         The 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 year.

         Corrigan's 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.

         Once 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.

         At this 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 job offer:
"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 Department.
"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 continued employment.
"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.)

         Furthermore, 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 interview team.
. . . .
"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.)

         Nowhere 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, ...


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