City of Manchester v. Bellenoit

321 A.3d 258

2024 N.H. 28

CITY OF MANCHESTER

v.Robert BELLENOIT & a.

Case No. 2022-0651

Supreme Court of New Hampshire.

Argued: September 19, 2023

Opinion Issued: May 30, 2024

Hillsborough-northern judicial district

Office of the City Solicitor, of Manchester (Gregory T. Muller on the brief and orally), for the plaintiff.

McDowell & Morrissette, P.A., of Manchester (Mark D. Morrissette on the brief and orally), for the defendants.

DONOVAN, J.

[¶1] The defendants, Robert Bellenoit, Richard Brown, Gregory Ditullio, and Jacob Tyler, appeal an order from the Superior Court (Messer, J.) granting the City of Manchester’s (City) motions for summary judgment and denying the defendants’ motions for summary judgment. On appeal, the defendants argue that the trial court erred in determining that: (1) section 33.064(B)(2) of the Manchester City Ordinance (MCO) effective prior to a 2008 amendment (hereinafter, section 33.064(B)(2) (pre-2008 amendment)) did not create a vested contractual right; and (2) section 33.064(B) of the MCO as amended in 2008 (hereinafter, section 33.064(B) (post-2008 amendment)) applied to the defendants. We conclude that: (1) section 33.064(B)(2) (pre-2008 amendment) did not create a vested contractual right; and (2) pursuant to the collective bargaining agreements (CBA) in effect when the defendants used their sick leave, section 33.064(B) (post-2008 amendment) applied to them. Accordingly, we affirm.

I. Facts

[¶2] The following facts are either undisputed or supported by the record. The defendants are police officers, either sergeants or patrolmen, employed by the City of Manchester. Each defendant is a member of one of two collective bargaining units (CBU) — the Manchester Association of Police Supervisors (MAPS) for sergeants or the Manchester Police Patrolmen’s Association (MPPA) for patrol- men — that periodically enter into and renew CBAs with the City. Each defendant was hired and became a permanent employee prior to 2008. Between 2015 and 2018, each defendant was injured in the scope of his employment and filed a workers’ compensation claim with the City. Each defendant’s claim was either denied and subsequently appealed, or delayed pending determination of eligibility. Between 2017 and 2018, while each claim was in the process of being resolved, the City paid each defendant accrued sick leave benefits. Ultimately, each defendant was deemed eligible for workers’ compensation benefits and received payments from the City in the same amount that each defendant had previously received from the City in the form of sick leave benefits.

[¶3] In 2019, the City brought four separate actions in plea of debt demanding that, pursuant to section 33.064(B) (post-2008 amendment), each defendant repay the sick leave benefits that he received while his eligibility for workers’ compensation was pending or being appealed. The City acknowledged that upon repayment of the sick leave benefits, the City would restore the sick time that each officer used. The defendants argued that pursuant to section 33.064(B)(2) (pre-2008 amendment), they have a vested right to restoration of their sick leave benefits without the requirement of repayment. In each case, the parties filed cross-motions for summary judgment and corresponding objections. Because each case raised the same legal question, the motions were consolidated for resolution. In June 2022, the superior court held a hearing on the motions.

[¶4] In September 2022, the court issued a written order granting the City’s motions for summary judgment and denying the defendants’ motions for summary judgment. The court ruled that because "at the time of their injuries, each Defendant was subject to a CBA negotiated after the 2008 amendment took effect," section 33.064(B) (post-2008 amendment) applied to them. The court also ruled that even if the negotiated CBAs "only changed the benefits accrued after the date of the new CBA," application of section 33.064(B) (post-2008 amendment) to the defendants did not constitute an "unconstitutional retroactive application of the law." The court determined that the defendants do not have a vested right to restoration of sick leave benefits without the requirement of repayment pursuant to section 33.064(B)(2) (pre-2008 amendment). The court distinguished the case at hand from Gilman v. County of Cheshire, 126 N.H. 445, 493 A.2d 485 (1985), reasoning that in this case, the defendants were "not subject to a unilateral change in compensation" and that they could not have relied on the restoration of sick leave credit after receipt of workers’ compensation without repayment because section 33.064(B)(2) (pre-2008 amendment) was silent as to repayment.

[¶5] The court also considered the "unmistakability doctrine," which requires that "absent some clear indication that the legislature intends to bind itself contractually, the presumption is that a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise." Am. Fed’n of Teachers — N.H. v. State of N.H., 167 N.H. 294, 301, 111 A.3d 63 (2015) (quotation omitted). The trial court reasoned that, in this case, section 33.064(B)(2) (pre-2008 amendment) did not discuss repayment and, in addition, there was "no stated policy that sick leave benefits would be restored without repayment." Consequently, the court explained, "the City’s silence on the repayment issue in the pre-2008 ordinance cannot be construed as an intention on the City’s part to be forever bound to the concept of restora- tion of sick benefits without repayment." The defendants filed a motion to reconsider, which the court denied. This appeal followed.

II. Analysis

[1, 2] [¶6] The defendants argue on appeal that the trial court erred in granting the City’s motions for summary judgment and denying their motions for summary judgment. Specifically, the defendants argue that the court erred in: (1) determining that the defendants did not have a vested right in the restoration of sick leave credit without the requirement of repayment pursuant to section 33.064(B)(2) (pre-2008 amendment); and (2) applying section 33.064(B) (post-2008 amendment) to them. When reviewing a trial court’s rulings on cross-motions for summary judgment, "we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law." Am. Fed’n of Teachers — N.H., 167 N.H. at 300, 111 A.3d 63 (quotation omitted). We review the trial court’s application of the law to the facts de novo. Id.

[¶7] This case requires that we determine whether the pre- or post-2008 version of section 33.064 of the MCO applies to the defendants. Prior to 2008, section 33.064(B)(2) stated that "[p]ending determination of compensation eligibility, the employee may receive sick leave benefits. On a determination of eligibility for compensation benefits, sick leave credit shall be restored." In Stankiewicz v. City of Manchester, 156 N.H. 587, 592-93, 938 A.2d 873 (2007), we were asked to interpret section 33.064(B)(2) (pre-2008 amendment) to determine whether the provision required an employee to reimburse the City prior to restoration of the employee’s sick leave credit. We concluded that "the plain language of the ordinance requires the City to restore the plaintiff’s sick leave credit, but does not require the plaintiff to repay the City." Stankiewicz, 156 N.H. at 593, 938 A.2d 873. We also stated that the City was "free to amend" its ordinances "as it sees fit" in the event that it disagreed with our interpretation. Id. at 593-94, 938 A.2d 873. In 2008, the City amended section 33.064(B) to read: "Pending determination of workers compensation eligibility, the employee may receive sick leave benefits. On a determination that the employee is eligible for workers compensation benefits, the employee shall repay to the city all sick leave benefits the employee has received. Upon repayment sick leave credit shall be restored." (Emphasis added.)

A. Vested Right

[3] [¶8] When determining which version of section 33.064(B) applies to the defendants, we first consider whether section 33.064(B)(2) (pre-2008 amendment) created a vested light. We start here as this determination affects whether the negotiated CBAs, to the extent that they incorporate section 33.064(B) (post-2008 amendment), apply to the defendants. See 20 Richard A. Lord, Williston on Contracts § 55:27, at 121-22, 124-25 (4th ed. 2016) (explaining that "[a]s a general rule, contractual obligations cease, in the ordinary course, on the termination of the collective bargaining agreement," but that in some cases, certain vested rights may "survive the termination of the agreement").

[¶9] The defendants argue that because they attained permanent employee status prior to the 2008 amendment, they have a vested right to the benefit set forth in section 33.064(B)(2) (pre-2008 amendment). The City disagrees, arguing that "under the ‘unmistakability doctrine’ the Superior Court correctly concluded that the [defen- dants] did not have a vested right to nonpayment" pursuant to section 33.064(B)(2) (pre-2008 amendment). We agree with the City.

[4] [¶10] Whether section 33.064(B)(2) (pre-2008 amendment) established a vested right that cannot be subsequently impaired or abrogated is a question that implicates Part I, Article 23 of the State Constitution. See Am. Fed’n of Teachers — N.H., 167 N.H. at 300-01, 111 A.3d 63; see also Opinion of the Justices (Furlough), 135 N.H. 625, 630, 609 A.2d 1204 (1992) ("We … understand article I, section 10 [of the Federal Constitution] and part I, article 23 [of the State Constitution] to offer equivalent protections where a law impairs a contract, or where a law abrogates an earlier statute that is itself a contract."). We review the constitutionality of a...