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18-P-571                                            Appeals Court

   JAMES CUTICCHIA & others1    vs.   TOWN OF ANDOVER & others.2


                            No. 18-P-571.

            Essex.      January 9, 2019. - April 3, 2019.

             Present:   Milkey, Maldonado, & Kinder, JJ.


Municipal Corporations, Group insurance. Insurance, Group,
     Premiums. Public Employment, Retirement benefits.
     Retirement. Statute, Construction. Practice, Civil,
     Summary judgment.


     Civil action commenced in the Superior Court Department on
August 15, 2016.

     The case was heard by James F. Lang, J., on motions for
summary judgment.


     Harold L. Lichten for the plaintiffs.
     John Foskett (Ryan P. Dunn also present) for the
defendants.




     1 William Canane, Dennis Lane, and the Andover Educators
Association (which was granted leave to intervene). For
convenience, we refer to the plaintiffs and the plaintiff-
intervener as "the plaintiffs."

     2   Town manager of Andover and board of selectmen of Andover.
                                                                      2


     MILKEY, J.   In 2016, the town of Andover increased the

percentage share that retired town employees had to pay for

their health insurance.   Three retired town employees brought

this action alleging that G. L. c. 32B, § 22 (e), prohibited the

town from implementing such increases prior to July 1, 2018.3       On

cross motions for summary judgment, a Superior Court judge ruled

that the language of § 22 (e) unambiguously supported the town's

position that the increases were lawful.     For the reasons that

follow, we vacate the judgment.

     1.   Statutory background.   A municipality may, but is not

required to, provide health insurance coverage to its employees

and retirees.   Somerville v. Commonwealth Employment Relations

Bd., 470 Mass. 563, 564 (2015).     Where a municipality has chosen

to provide such coverage, it generally has a variety of options

regarding the percentage it will contribute towards the

insurance premiums.   Although G. L. c. 32B, § 9, states that

retirees are to bear the full cost of their health insurance,

municipalities may elect to pay a share of those premiums by

"accept[ing] the more generous provisions of G. L. c. 32B, § 9A

or § 9E."   Id. at 565.   By opting into § 9A, the municipality

can pay fifty percent of the premiums, and by opting into § 9E,

they can pay a higher percentage.    Id.


     3 The claim was brought as a class action, but it was
dismissed before being certified.
                                                                     3


    In Somerville, the Supreme Judicial Court addressed the

question whether a municipality that had elected to opt into

§ 9E could "unilaterally reduce[] its percentage contribution to

retired employees' health insurance premiums without engaging in

collective bargaining over the matter with current employees."

Id. at 573.   The court held that a town could do so, thus

reaffirming that municipalities enjoyed broad statutory

authority to raise the percentage share that retirees had to pay

for their health insurance premiums.    See id.

    In 2011, the Legislature enacted a law to allow

municipalities to pursue additional cost savings in the

provision of their health insurance plans.    See St. 2011, c. 69,

§ 3, inserting G. L. c. 32B, §§ 21-23 (2011 act).    Specifically,

municipalities now could elect to opt into a program through

which they could redesign their health insurance plans, e.g.,

through changing the copayments and deductibles that those

enrolled in the plans had to pay, and through adopting "tiered

provider network copayments and other cost-sharing plan design

features."    G. L. c. 32B, § 22 (a).   The 2011 act created a sui

generis, streamlined process through which such changes were to

be negotiated or, barring an agreement, determined by a

specially constituted "municipal health insurance review panel."

G. L. c. 32B, § 21 (c).    While union representatives were given
                                                                    4


an important role in that process,4 the process otherwise by-

passed ordinary collective bargaining.   See G. L. c. 32B, § 23

(a), (c), (g) (providing that decisions by municipality to

redesign its health insurance plans are not subject to

collective bargaining).

     Notably, the new authority offered by the 2011 act was

layered on top of the authority that municipalities already

possessed to decrease the percentage share that they contributed

to their retirees' health insurance premiums.   See G. L. c. 32B,

§§ 9A, 9E.   This meant that retirees now potentially could be

subjected to two types of increases implemented outside the

traditional collective bargaining process:   increases to the

percentage share that they had to pay for their premiums, and

increases to their copays, deductibles, and the like.    As both

sides agree, when the Legislature enacted the 2011 act, it

placed temporary limits on the ability of municipalities to

subject retirees to increases on both fronts.   Specifically,

municipalities who elected to use their new authority to

implement design changes to their insurance plans outside

collective bargaining temporarily were precluded from using

their already existing authority to raise the percentage share

that retirees had to pay.   As Governor Patrick stated in


     4 See G. L. c. 32B, § 21 (b) (creating "public employee
committee" comprised of union and retiree representatives).
                                                                    5


proposing the language establishing this moratorium,5 the purpose

was "the protection of current retirees from short-term

increases in premiums."    Governor's Message, 2011 House Doc. No.

3581.    Although the parties before us generally agree about the

role that the moratorium was intended to serve, they disagree

about the details as to how the moratorium was intended to

operate and, most specifically, when municipalities would be

relieved from its effects.

     As enacted by St. 2011, c. 69, § 3, the moratorium language

set forth in § 22 (e) reads as follows:

     "The first time a public authority implements plan design
     changes under this section or section 23, the public
     authority shall not increase before July 1, 2014, the
     percentage contributed by retirees, surviving spouses and
     their dependents to their health insurance premiums from
     the percentage that was approved by the public authority
     prior to and in effect on July 1, 2011."

In 2014, the Legislature amended this language by substituting

"2016" for "2014."   St. 2014, c. 165, § 76.   In 2016, the

Legislature again amended the language by substituting "2018"

for "2016."   St. 2016, c. 133, § 45.   On both occasions, the

remainder of the language was left the same.




     5 The amendment to G. L. c. 32B was originally proposed as
an outside section of the fiscal year 2012 budget. The Governor
proposed the moratorium language in his statement returning
certain outside sections of the fiscal year 2012 budget with
vetoes and amendments.
                                                                    6


     2.   Background.   The town previously had elected to opt

into § 9E, under which towns pay more than fifty percent of

their retirees' health insurance premiums.    Specifically, as of

2011, the town was covering between sixty-five percent and

eighty-six percent of those premiums.

     In 2012, the town board of selectmen voted to make use of

the statutory authority provided by the 2011 act so that the

town could restructure the health insurance benefits it provided

to its existing employees and retirees.    Following the

procedures required by the 2011 act, the town implemented its

first set of design changes to its health insurance plan

effective July 1, 2012.   Those design changes, inter alia,

included increased copays and deductibles that current employees

and retirees alike would have to pay.    The percentage

contribution that retirees would have to pay for their premiums

was not changed at that time.6

     In 2016, the town implemented a second set of design

changes effective July 1, 2016.   At that time, the town also

decreased the percentage contribution it would make to cover the

premiums of its retirees (thereby increasing the share retirees

had to pay).   Because the Legislature by this time had extended


     6 Both sides agree that a decrease in the town's percentage
contribution would have been prohibited by the moratorium
language included in § 22 (e).
                                                                     7


the end date included in § 22 (e) to July 1, 2018, the

plaintiffs challenged the 2016 increase to their percentage

contribution as violating the moratorium.7   On cross motions for

summary judgment, the judge ruled in the town's favor,

explaining his reasoning in a thoughtful memorandum of decision.

In short, the judge accepted the town's argument that under the

plain language of § 22 (e), it could increase the percentage

contribution that retirees would have to pay even prior to July

1, 2018, because the moratorium applied only to "the first time"

a municipality implemented design changes to its health

insurance plans, not to second or subsequent changes.     Although

the judge recognized that the town's interpretation "imposes a

very real financial hardship upon [retirees]," he concluded that

it was compelled by unambiguous statutory text.   Relatedly, the

judge concluded that the plaintiffs' interpretation would render

superfluous the introductory language about "the first time" a

municipality restructures its health insurance plans.     See

Connors v. Annino, 460 Mass. 790, 796 (2011) (statute is to be

construed "to give effect to all its provisions, so that no part




     7 The end date of the moratorium has not since been
extended. Accordingly, the parties agree that § 22 (e) does not
prohibit increases to retirees' percentage contributions after
July 1, 2018. The controversy before us thus is limited to the
period between July 1, 2016 (the date the challenged increases
became effective) and July 1, 2018.
                                                                     8


will be inoperative or superfluous" [quotation and citation

omitted]).

    3.   Discussion.     When discerning the intent of the

Legislature, we, of course, must "begin with the language of the

statute, and [w]hen a statute is plain and unambiguous, we

interpret it according to its ordinary meaning" (quotations and

citations omitted).    Commonwealth v. Hanson H., 464 Mass. 807,

810 (2013).   See DiGregorio v. Registrar of Motor Vehicles, 78

Mass. App. Ct. 775, 780 (2011) ("Statutory text is, of course,

the principal source from which courts . . . are to discern

legislative purpose").    However, "we look to the language of the

entire statute, not just a single sentence, and attempt to

interpret all of its terms 'harmoniously to effectuate the

intent of the Legislature.'"    Hanson H., supra, quoting

Commonwealth v. Raposo, 453 Mass. 739, 745 (2009).

    The key language of § 22 (e) states as follows:      "The first

time a public authority implements plan design changes under

this section or section 23, the public authority shall not

increase before July 1, 2018, the percentage contributed by

retirees . . . ."   The town's contention that this language is

unambiguous has some force, especially if that language is read

in isolation.   However, the town passes over the fact that the

statutory text does not directly address what constraints may

apply the second time a municipality implements plan design
                                                                      9


changes; the town's interpretation relies on an inference that

"the first time" means "but not the second or subsequent time."

That inference is permissible, but not mandatory.     Moreover,

"meaning and ambiguity are creatures of context."     Downer & Co.,

LLC v. STI Holding, Inc., 76 Mass. App. Ct. 786, 792 (2010).

For the reasons set forth below, ambiguity emerges here when we

examine the key language in the context of the statute as a

whole.

    It is uncontested that the moratorium set forth in § 22 (e)

served to place temporary limits on the authority that

municipalities already had to increase the percentage share that

retirees would have to pay to cover their premiums.    In

addition, the § 22 (e) moratorium does not apply across the

board to all municipalities, but instead applies only to those

that have elected to make use of the new authority to redesign

their health insurance plans outside the collective bargaining

process.   See G. L. c. 32B, § 22 (e).   In light of this

complicated structure, two questions naturally arise with

respect to the timing of the moratorium:   first, on what date

does the moratorium first limit a municipality's ability to make

use of its existing authority to increase the percentage

contribution that retirees will have to pay, and, second, when

does that limitation expire.   In this context, the introductory

language regarding "the first time" a municipality restructures
                                                                  10


its health insurance plans readily can be interpreted as

answering the first question.   That is, the language of § 22 (e)

can be interpreted so that the moratorium applies to a given

municipality once that municipality has implemented design

changes to its health insurance plans "the first time," and the

moratorium expires on the date certain set forth in the statute

(originally July 1, 2014, later extended to July 1, 2018).

    This interpretation not only is consistent with § 22 (e)'s

text, but also has the benefit of reading the various provisions

in G. L. c. 32B as a harmonious whole.   Under it, municipalities

were informed that, if they chose to make use of their new

authority to redesign their health care plans outside the scope

of collective bargaining, their existing authority to raise the

percentage contributions made by retirees would be limited

temporarily until a date certain.   See Ciani v. MacGrath, 481

Mass. 174, 178 (2019) ("Our principal objective is to ascertain

and effectuate the intent of the Legislature in a way that is

consonant with sound reason and common sense").   In contrast,

under the town's interpretation, a municipality's authority

would be tied to the happenstance of how many times the

municipality chooses to implement design changes to its

insurance plans.   A municipality would be free to avoid the

moratorium designed to protect retirees so long as it already
                                                                 11


had implemented design changes that presumably had hurt them.8

Even if that interpretation were not considered absurd or

illogical, the legislative policy rationale supporting it is, at

a minimum, far from obvious.9

     The town argues that its interpretation is compelled by the

Legislature's use of the term "the first time" elsewhere in a

related subsection.   See G. L. c. 32B, § 22 (b).   That

subsection draws an express distinction between certain

procedural requirements that apply only to "the first time" a

municipality implements the authority provided by the 2011 act

to redesign their health insurance plans, and those procedures

that apply "each time" it does so.   See id.   The town argues

that the use of the "the first time" language in § 22 (b) means


     8 Moreover, under the town's interpretation, municipalities
would be free of the moratorium the second time they made
changes to their health insurance plans, regardless of the
extent and nature of the two sets of changes. Thus,
municipalities would have been free to "game the system" in
order to avoid the moratorium, e.g., by making one set of design
changes to its health insurance plans, and then making technical
amendments to those plans while simultaneously raising the share
retirees must pay for their premiums.

     9 The town took the position that the language of § 22 (e)
was unambiguous, and argued that the plaintiffs had the burden
of showing that the town's interpretation plainly would be
contrary to the manifest intent of the Legislature. See, e.g.,
Reade v. Secretary of the Commonwealth, 472 Mass. 573, 584
(2015) (rejecting argument that receipt of any veterans'
benefits renders party "indigent," notwithstanding that literal
reading of relevant statutory language provided support for that
position). As a result, the town did not attempt to explain how
its own interpretation made sense.
                                                                    12


that we must attribute the same meaning to the Legislature's use

of the same language in § 22 (e).   See Alliance to Protect

Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass.

663, 695-696 (2010) ("Words used in one part of a statute to

connote a particular meaning should be given the same meaning in

another part of the same statute" [quotation and citation

omitted]).

    The flaw in the town's argument is that interpreting the

moratorium language in the plaintiffs' favor does not depend on

ascribing different meanings to "the first time" language used

in the two sections.   Rather, in § 22 (b) and § 22 (e), the

meaning of the term "the first time" is identical; it appears

plain that, in both instances, the Legislature used these words

in the ordinary manner to refer to the date that the

municipality initially made design changes to its health

insurance plans (in reliance on its new authority to implement

such changes outside the collective bargaining process).      The

key question is not what the phrase "the first time" means, but

what legal consequences were intended to attach to it based on

how the phrase specifically is used in each section.   Under the

plaintiffs' interpretation of § 22 (e), the date a municipality

first uses the authority provided by the 2011 act marks when the

moratorium first applies; under the town's, that date marks both

the first time and the last time that the moratorium applies.
                                                                   13


The plaintiffs' interpretation is significantly more plausible.

Cf. Leighton v. Hallstrom, 94 Mass. App. Ct. 439, 447 (2018)

(rejecting interpretation under which certain legal consequences

"were so evanescent as to vanish as soon as they were created").

     None of this is to suggest that the plaintiffs'

interpretation flows easily from well-crafted statutory text.

But the sentence structure that the Legislature chose to employ

renders both competing interpretations awkward at best.10    Our

mandate is "to give ambiguous, imprecise, or faultily drafted

statutes 'a reasonable construction,' with the primary goal of

'constru[ing] the statute to carry out the legislative intent,'"

and to "avoid[] a construction which would negate legislative

intent or defeat its intended utility" (quotation and citations

omitted).   Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass.

App. Ct. 282, 286 (1996).

     When the language of § 22 (e) is considered in the context

of the statute as a whole, the plaintiffs' parsing of the

language is no less natural than that of the town.     Had the

Legislature plainly intended its temporary curtailment of


     10It often has been observed that "people who love sausage
and respect the law should never watch either one being made" (a
quote of uncertain provenance that has been attributed variously
to Mark Twain, Otto von Bismarck, and several others). The same
comparison might also be made about looking too closely at the
end product, not just the process. No matter how toothsome and
nourishing a sausage may be, its appearance often falls short of
ideal.
                                                                   14


municipal authority to terminate on "the earlier of" July 1,

2018, and the date on which the municipality implements its

second set of design changes to its health insurance plans, it

would have been easy to say so.     See Peters v. United Nat'l Ins.

Co., 53 Mass. App. Ct. 775, 783-784 (2002) (rejecting party's

interpretation of statute because, "had the Legislature desired

to create such a system, we believe it would have said so with

considerably greater clarity").

    We finally consider the parties' competing claims about

whether available legislative history supports or undercuts

their respective interpretations.    See Commonwealth v. Deberry,

441 Mass. 211, 215 (2004), quoting Chandler v. County Comm'rs of

Nantucket County, 437 Mass. 430, 435 (2002) ("Where the

statutory language is not conclusive, we may 'turn to extrinsic

sources, including the legislative history and other statutes,

for assistance in our interpretation'").     The parties agree that

if resort to legislative history is appropriate, then the

statement made by Governor Patrick when he sponsored the

moratorium language would be a valid source to consider.     See

Commonwealth v. Peterson, 476 Mass. 163, 168 (2017) (where

resort to legislative history is appropriate, courts may

consider and give weight to Governor's sponsoring statement).

However, the Governor's 2011 statement that the moratorium was

intended to protect "current retirees from short-term increases
                                                                    15


in premiums" is consistent with both interpretations, and

therefore provides little assistance in choosing between them.11

     For their part, the plaintiffs highlight legislative

history related to the 2016 amendment to § 22 (e), which

extended the moratorium end date from July 1, 2016, to July 1,

2018.     See St. 2016, c. 133, § 45.   They argue, with at least

some force, that during the floor debate on that bill, at least

one key proponent of the bill and one key opponent both appear

to have understood that the 2016 amendment would extend the

moratorium for another two years, without any hint that

municipalities might avoid the moratorium simply by making

design changes to their health insurance plans a second time.12


     11The town argues that a moratorium that would have lasted
seven years (from 2011 to 2018) cannot be considered as
providing merely "short-term" protections. But under the
language on which the Governor was commenting, the moratorium
was to terminate as of July 1, 2014. Especially given
inevitable time lags incumbent in a municipality's adoption and
then implementation of the authority provided by the 2011 act,
the moratorium originally was slated to be in effect at most for
only approximately two years (a period that easily could be
considered "short-term").

     12During the floor debate in the Senate, the sponsor of the
2016 amendment to § 22 (e), Senator Thomas McGee, stated that
the amendment "extends until June 30, 2018 the protection for
those municipal retirees and survivors that was put in place in
2011."   Amendment 91 Relative to Municipal Retiree Fairness,
Senate Floor Debate, May 24, 2016. Meanwhile, during the floor
debate in the House, the lead opponent of the amendment,
Representative Jim Lyons, explained that he opposed the change
because its effect would be that municipalities could "no longer
control the costs they want to control." State House News
Service (House Sess.), June 30, 2016. Notably, Representative
                                                                  16


In addition, the plaintiffs point out that Governor Baker vetoed

the two-year extension of the moratorium end date and, in a

statement accompanying that veto, explained that "I am vetoing

this section because the section would take away, for an

additional two years, one of the few tools a city or town has to

control both its health insurance costs and its liability for

other post-employment benefits."   Attachment B to Governor's

Message, 2016 House Doc. No. 4505.   In the face of Governor

Baker's unqualified statement about the broad effects of the

two-year extension, the Legislature overrode his veto.

     The parties engage in a vigorous debate about whether it is

appropriate to take into account the various comments made with

respect to the 2016 amendment to § 22 (e) and, if so, how much

force to attach to them.13   For present purposes, it suffices to



Lyons was from Andover, and he focused his comments on the
town's reliance on the anticipated termination of the moratorium
in 2016.

     13The parties dispute the extent to which courts can look
to comments made by individual legislators (as opposed to
official committee reports and the like). Compare Boston Sewer
& Water Comm'n v. Metropolitan Dist. Comm'n, 408 Mass. 572, 578
(1990) ("Statements of individual legislators as to their
motives concerning legislation are an inappropriate source from
which to determine the intent of legislation"), with Rodman v.
Rodman, 470 Mass. 539, 545 n.9 (2015) (looking to comments made
by individual legislators as part of "floor debate" on bill for
clarification). In addition, the town argues that it is
inappropriate to rely on the comments made with respect to the
2016 legislation, because the key "the first time" language was
enacted in 2011 and left unchanged by the 2016 legislation. See
Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins.
                                                                  17


say that nothing in the legislative history contradicts the

plaintiffs' interpretation, and that what is available, if

anything, provides some support for that interpretation.     We do

not place conclusive, or even significant, weight on the

legislative comments that the plaintiffs have brought to our

attention.

    4.   Conclusion.   For the reasons set forth above, the judge

erred in concluding that § 22 (e), as amended by St. 2016, c.

133, § 45, allowed the town to increase its retirees'

proportionate share of their health insurance premiums prior to



Co., 371 Mass. 186, 194 (1976) ("[T]he views of a subsequent
[Legislature] form a hazardous basis for inferring the intent of
an earlier one"). But while the 2016 Legislature did not change
the particular language on which the town seeks to rely, it did
otherwise materially amend the sentence in which that language
is embedded; indeed, the plaintiffs are relying on the 2016
amendment as what prohibits the town from raising their
percentage share. Under these circumstances, some argument can
be made that comments reflecting the views held by the 2016
Legislature regarding the consequences of its actions are
relevant. See Briggs v. Commonwealth, 429 Mass. 241, 256 (1999)
(recognizing that in some "circumstances it is appropriate for
us to respect [legislative] expression concerning the earlier
enacted statutory amendments").

      With regard to what import to place on the Legislature's
enactment of the 2016 amendment to § 22 (e) over Governor
Baker's veto, the town points out that the Supreme Judicial
Court has cautioned against reading too much into such a fact in
a case broadly analogous to the one presented here. See Kobrin
v. Gastfriend, 443 Mass. 327, 336 n.10 (2005) (where Governor
vetoed bill based on his view that statutory provision was too
broad, fact that Legislature enacted statute by overriding that
veto "does not assist us in identifying where the line should be
drawn").
                                                                   18


July 1, 2018.   We therefore vacate the judgment and remand this

matter to the Superior Court for further proceedings consistent

with this opinion.

                                    So ordered.
