December 15, 2017



                                                                         Supreme Court

                                                                         No. 2015-246-Appeal.
                                                                         No. 2015-244-Appeal.
                                                                         No. 2015-243-Appeal.
                                                                         (PB 08-6508)
            Retirement Board of the Employees’        :
             Retirement System of the City of
                        Providence
                                                      :
                              v.

                     Frank E. Corrente                :
                            and
            Mayor of the City of Providence et al.    :




                        NOTICE: This opinion is subject to formal revision before
                        publication in the Rhode Island Reporter. Readers are requested to
                        notify the Opinion Analyst, Supreme Court of Rhode Island, 250
                        Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
                        3258 of any typographical or other formal errors in order that
                        corrections may be made before the opinion is published.
                                                                   Supreme Court

                                                                   No. 2015-246-Appeal.
                                                                   No. 2015-244-Appeal.
                                                                   No. 2015-243-Appeal.
                                                                   (PB 08-6508)
    Retirement Board of the Employees’          :
     Retirement System of the City of
                Providence
                                                :
                      v.

             Frank E. Corrente                  :
                    and
    Mayor of the City of Providence et al.      :

               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                             OPINION

        Chief Justice Suttell, for the Court. These consolidated appeals arise from a decision

of the Retirement Board of the Employees’ Retirement System of the City of Providence (the

board or city board) to reduce the pension benefits of Frank E. Corrente (Corrente) following

multiple federal convictions.1 Specifically, pursuant to the Honorable Service Ordinance (HSO),

Chapter 17, Article VI, Sec. 17-189.1 of the City of Providence Code of Ordinances (as enacted

in 1999),2 the board revoked a portion of Corrente’s pension benefits and ordered him to return a

portion of the benefits that he had received.

        The matters now before this Court are: (1) Corrente’s appeal from a Superior Court

judgment denying his request for a tax credit on pension benefits that he had received but was

required to return to the board; (2) the appeal of the Mayor of the City of Providence (the mayor)


1
  On October 31, 2016, this Court consolidated the three appeals: No. 2015-243-A., No. 2015-
244-A., and No. 2015-246-A.
2
  “The HSO was enacted in 1999 and amended in 2011.” Retirement Board of Employees’
Retirement System of Providence v. Corrente, 111 A.3d 301, 302 n.1 (R.I. 2015) (Corrente I).
For purposes of this opinion, all references to the HSO are to the pre-2011 version.


                                                    -1-
and the City of Providence (the city) who, as intervenors, had challenged the board’s decision to

reduce, rather than revoke, Corrente’s pension benefits; and (3) the board’s cross-appeal from the

judgment allowing the mayor and the city to intervene as a matter of right under Rule 24(a) of

the Superior Court Rules of Civil Procedure. For the reasons set forth in this opinion, we affirm

the judgment of the Superior Court.

                                                I

                                         Facts and Travel

                                                A

                                      Procedural Background

       The facts underlying this case are set forth in detail in Retirement Board of the

Employees’ Retirement System of Providence v. Corrente, 111 A.3d 301, 303-05 (R.I. 2015)

(Corrente I), where this Court vacated the Superior Court’s judgment for lack of subject-matter

jurisdiction and remanded it to the Superior Court for further proceedings. Below, we outline the

facts pertinent to the present appeal.

        Corrente had two terms of city employment. His first term of employment commenced

on June 26, 1967, when Corrente began working in the controller’s office, and continued until he

retired from his position as the city controller on April 12, 1987. Corrente received pension

benefits for his first term of employment until he returned to work for the city on December 31,

1990, for his second term of employment, as the director of administration under then-Mayor

Vincent A. Cianci, Jr. Corrente retired from this position on July 4, 1999, and received an

increased monthly pension based on a higher gross salary for his second term of employment.

       On June 24, 2002, Corrente was convicted of six felony counts in the United States

District Court for the District of Rhode Island. On October 23, 2002, the board suspended




                                               -2-
Corrente’s pension benefits, pending a hearing, pursuant to the HSO, which provided in pertinent

part:

               “Whenever any employee is convicted of or pleads guilty or nolo
               contendere to any crime related to his or her public employment,
               the retirement board shall conduct a meeting, with the employee
               having the opportunity to be heard, to determine if a
               recommendation of revocation or reduction of any retirement
               allowance or annuity or other benefit or payment to which the
               employee is otherwise entitled to under this chapter is warranted.”
               Chapter 17, Article VI, Sec. 17-189.1(a)(5).

        On April 23, 2003, the board appointed Larry Ritchie, a professor at Roger Williams

University School of Law, as an “independent hearing officer.” On December 27, 2007, after

Corrente’s release from prison, a hearing was held; and on March 12, 2008, Prof. Ritchie issued

a report and recommendation to the board. He determined that all of the crimes that Corrente

committed occurred during his second term of employment with the city as the director of

administration; and accordingly, he recommended that the board: (1) revoke the retirement

benefits that derived from Corrente’s second term of employment; (2) pay him a reduced pension

based on his first term of employment; (3) return the contributions that Corrente paid into the

retirement system during his second term of employment; and (4) offset any retirement benefits

and interest due that were suspended in October 2002 with the retirement benefits paid to

Corrente following his retirement from his second term of employment.

        On July 30, 2008, the board met, and both Corrente and Prof. Ritchie were present.

Professor Ritchie discussed the issue of taxes, stating, “[T]he one thing that * * * didn’t come up

at the hearing and I did not include at all in the recommendation had to do with taxation. * * * I

would agree * * * that ought to be included in with the calculations.” Following Prof. Ritchie’s

comments, a member of the board asked him if the board should add an additional item to his

recommendation, about the tax issue, to which Prof. Ritchie responded affirmatively. Another



                                               -3-
member of the board clarified Prof. Ritchie’s recommendation regarding the tax credit. He

explained that Corrente would pay back to the city the amount of pension benefits from his

second term of employment that he had received and that the board had since revoked, less the

taxes that Corrente paid on that amount. On August 13, 2008, the board voted to adopt Prof.

Ritchie’s report and recommendation;3 however, it did not adopt the recommendation concerning

the tax credit.

        On October 10, 2008, the board initiated an action in the Superior Court, fashioned as a

miscellaneous petition, to confirm its decision pursuant to Sec. 17-189.1(a)(5) of the HSO.

Section 17-189.1(a)(5) of the HSO provided that the board “shall initiate a civil action in the

[S]uperior [C]ourt for the revocation or reduction of any retirement allowance or annuity or other

benefit or payment to which the employee is otherwise entitled to under chapter 17.” Corrente

also sought confirmation of the board’s decision and filed a counterclaim for three “additional

requests,” including: (1) a lump-sum payment, with interest, for the benefits deriving from his

first term of employment that were suspended, from the date of suspension through the date of

resumption; (2) a tax credit for any taxes he paid on the revoked amount of pension benefits,

deducted from the total amount that he owed to the board; and (3) that Corrente not have to

reimburse the city for the amount of pension benefits that were paid to him from the date of his

second retirement through the date that his benefits were suspended.




3
 Seven board members voted in favor of adopting Prof. Ritchie’s recommendations; five
members voted against it; and one member was absent.


                                               -4-
                                                B

                                          Intervention

       On January 29, 2009, the mayor and the city moved to intervene pursuant to Rule 24(a)

of the Superior Court Rules of Civil Procedure.4 They asserted that intervention was appropriate

because the interests of the city and its taxpayers were not adequately represented by the existing

parties. The board objected to the motion. On March 13, 2009, the trial justice held a hearing on

the motion to intervene. The mayor and the city maintained that the interests of the existing

parties—the board and Corrente—were “perfectly aligned.” They argued for intervention to

protect the public interest and to assert their position that a de novo review was the appropriate

standard of review in civil actions brought by the board in the Superior Court pursuant to the

HSO. The board maintained that the interests of the mayor and the city were adequately

represented through the two mayoral appointments to the board. The board also disagreed with

the assertion that its interests were aligned with Corrente’s and insisted that “there’s adversity

between the existing parties.”

       In deciding the motion, the trial justice noted the four requirements of Rule 24: (1) the

applicant must file a timely application to intervene; (2) the applicant must claim an interest

relating to the property or transaction that forms the basis of the action; (3) disposition of the

action may impair or impede the applicant’s interest; and (4) the current parties to the action do

not adequately represent the applicant’s interest. See Hines Road, LLC v. Hall, 113 A.3d 924,

927 (R.I. 2015). The trial justice determined that the mayor and the city had satisfied the first

requirement of Rule 24(a). The trial justice found that the intervenors also met the second



4
  The mayor of the city of Providence at the time was David Cicilline. We also note that the
record does not contain any resolution or minutes of the city council authorizing the city to
intervene.


                                                -5-
requirement because “the transaction at issue is of high significance to the City of Providence.”

With respect to the third requirement, the trial justice determined that disposition of the pending

action threatened to impair or impede the ability of the mayor and the city to protect its interest.

Specifically, he found that the intervenors’ position would not otherwise be raised by the existing

parties because the positions of the board and Corrente were “essentially the same with respect to

a substantial portion of the recommendation.”

         Lastly, the trial justice found that neither of the existing parties to the action would

adequately represent the interest of the mayor and the city. He first determined that Corrente

would not adequately represent the interest of the mayor and the city because they held different

positions in the case. With respect to the board, the trial justice deemed it “absurd” to find that it

would adequately represent the interest of the mayor and the city because “there is a vast gulf

between the position of the [r]etirement [b]oard and the position espoused by the [c]ity and the

[m]ayor.” Thus, the trial justice granted the motion to intervene.

                                                  C

                                           Prior Appeals

         On April 13, 2009, the trial justice consolidated five related cases involving the board and

different plaintiffs, including the action between the board and Corrente, to address three issues

related to the HSO: (1) whether a criminal conviction was necessary for the board to take action

to reduce or revoke pension benefits pursuant to the HSO; (2) whether the Superior Court had

jurisdiction to review civil actions brought by the board pursuant to the HSO; and (3) what

standard of review applied in the Superior Court when reviewing civil actions brought by the

board.




                                                 -6-
       On September 8, 2009, the trial justice issued a decision in the consolidated cases finding

that: (1) a conviction was not a prerequisite to the board taking action to revoke or reduce

benefits; (2) its jurisdiction over equity actions along with its declaratory-judgment powers gave

the Superior Court jurisdiction; and (3) the appropriate standard of review was that used for

administrative appeals, as articulated in G.L. 1956 § 42-35-15 of the Administrative Procedures

Act (APA). One of the plaintiffs in the consolidated cases appealed to this Court in Ryan v. City

of Providence, 11 A.3d 68, 70 (R.I. 2011). In Ryan, we vacated the Superior Court’s judgment

and held that a criminal conviction was necessary before the board could take action to reduce or

revoke pension benefits. Id. at 76. We did not reach the issue of the standard of review for civil

actions brought by the board pursuant to the HSO. Id.

       After our ruling in Ryan, the board again moved to confirm its decision to reduce

Corrente’s pension benefits. In response, the intervenors objected to the board’s motion and

moved for summary judgment. On June 23, 2011, there was a hearing on the motions. At the

hearing, the intervenors explained that their motion requested that the Superior Court deny the

board’s motion to confirm and either enter an order that revoked Corrente’s pension entirely or

remand the matter to the board for further proceedings. On September 28, 2011, the trial justice

issued a decision that denied the intervenors’ motion for summary judgment and confirmed the

board’s decision to reduce Corrente’s pension.5

       In his written decision, the trial justice addressed the standard of review to apply to

actions brought by the board pursuant to the HSO.           He cited to his previous opinion in

Retirement Board of the Employees Retirement System of Providence v. Annarino, Nos. 02-5196,

5
  In his decision, the trial justice noted that the intervenors fashioned their motion as a summary-
judgment motion, but he stated that “[t]he [c]ourt, however, having equated the instant matter
with an administrative appeal, will treat the party’s papers as submitted in connection with G.L.
1956 § 42-35-15(f).”


                                                -7-
08-5442, 07-2175, 08-6508, 08-7268, 2009 WL 3328480, at *13 (R.I. Super. Ct. Sept. 8, 2009),

where he found a “striking similarity” between the board’s process under the HSO and that of the

Retirement Board of the Employees’ Retirement System for the State of Rhode Island (state

retirement board), which is an “agency” subject to the APA pursuant to § 42-35-1. Specifically,

the trial justice likened the city board’s two-tiered procedure to the state retirement board’s two-

tiered review process under the APA. He therefore adopted the APA standard of review set forth

in § 42-35-15(g). Under the APA’s deferential standard of review, the trial justice determined

that the board’s decision was supported by substantial evidence, not arbitrary and capricious, not

unlawful or unconstitutional, and not in excess of its authority. The trial justice also addressed

Corrente’s three additional requests that he set forth in his answer and counterclaim to the

board’s motion to confirm. He found that “Professor Ritchie’s Report & Recommendation, and

the Retirement Board’s adoption thereof, specifically contemplated and appropriately dealt with

the first and last prong of Mr. Corrente’s ‘Additional Relief,’” and he therefore declined to

modify the adopted recommendation with respect to the first and last requests. The trial justice,

however, remanded the tax-credit issue to the board “for a proper determination.”

       On October 18, 2011, the trial justice entered a judgment that reflected his written

decision; he denied the intervenors’ motion for summary judgment, confirmed the board’s

decision, and remanded the tax-credit matter to the board.6          On November 4, 2011, the

intervenors appealed to this Court. Subsequently, the board cross-appealed the trial justice’s

grant of the motion to intervene.7



6
  The judgment and the order state that the trial justice granted the board’s motion for summary
judgment; however, as the trial justice noted in his decision, the board’s motion was styled as a
miscellaneous petition, which he reviewed as an administrative appeal.
7
  As we noted in Corrente I, 111 A.3d at 305, Corrente did not file an appeal and was not a party
before this Court.


                                                -8-
       On appeal, this Court ordered additional briefing on the issue of the Superior Court’s

subject-matter jurisdiction. Corrente I, 111 A.3d at 305. On March 9, 2015, we issued an

opinion. Id. at 309-10. This Court held that the Superior Court lacked jurisdiction over an action

brought by the board pursuant to the HSO and that therefore its judgment was void. Id. at 309.

However, we concluded that the newly-enacted statute, G.L. 1956 § 36-10.1-5, vested the

Superior Court with jurisdiction.8 Corrente I, 111 A.3d at 309. Therefore, this Court remanded

the matter to the Superior Court to conduct further proceedings consistent with our opinion or to

re-enter its previous judgment. Id. at 309-10.

                                                 D

                                            Tax Credit

       As noted above, prior to the appeal in Corrente I, the trial justice remanded the tax-credit

issue to the board to decide. Pursuant to the Superior Court’s order, the board discussed the tax-

credit issue at two meetings, on April 18, 2012, and May 23, 2012. At the latter meeting, the

board voted to deny Corrente’s request for a tax credit.9 On July 31, 2012, Corrente moved in

the Superior Court to overrule the board’s decision to deny his request for a tax credit.

       On January 31, 2013, the same trial justice heard the parties on Corrente’s motion.

Corrente asserted that the board’s decision to deny him a tax credit was “unreasonable.” The

board maintained that it was not required to grant Corrente a tax credit; rather, it had discretion

to decide whether or not to adopt Prof. Ritchie’s recommendation to grant a tax credit. The

board also distinguished Prof. Ritchie’s “off-the-cuff” recommendation regarding the tax credit

8
  General Laws 1956 § 36-10.1-5 provides, “[t]he [S]uperior [C]ourt shall have jurisdiction to
review any decisions, appeals, or other proceedings initiated pursuant to any municipal ordinance
providing for the revocation or reduction of the pension of any municipal employee for
circumstances constituting dishonorable service as defined by municipal ordinances.”
9
  Five members of the board voted in favor of denying Corrente’s request for a tax credit; two
members abstained; and six members were absent.


                                                 -9-
from the recommendation of “a hearing officer who deliberates on it and has a well-reasoned

decision.” The trial justice reviewed the board’s decision and found that it was not an abuse of

discretion. Accordingly, on February 1, 2013, he entered an order that denied Corrente’s motion

to overrule the board’s decision to deny his request for a tax credit.

                                                  E

                                          Present Appeal

       Following this Court’s remand in Corrente I, the trial justice re-entered his previous

orders on April 29, 2015. He again granted the mayor and the city’s motion to intervene,

confirmed the board’s decision,10 denied the intervenors’ motion for summary judgment, and

denied Corrente’s motion to overrule the board’s denial of a tax credit.11 On the same day, the

trial justice also entered a corresponding judgment.

       On May 8, 2015, Corrente appealed to this Court. On May 11, 2015, the intervenors

appealed. On May 14, 2015, the board filed a cross-appeal.

                                                  F

                                      Arguments on Appeal

       Before this Court, Corrente argues that the trial justice erred in denying his motion to

overrule the board’s decision to deny his request for a tax credit. Specifically, he maintains that

the board had to defer to the hearing officer’s recommendation and could only reject it if it had

an “adequate rationale.” Corrente avers that the board rejected Prof. Ritchie’s recommendation

10
   The trial justice’s order stated that he granted the board’s motion for summary judgment;
however, as previously noted, the board styled its motion as a miscellaneous petition and the trial
justice reviewed it as an administrative appeal.
11
    We note that the trial justice’s order also provided that “[t]he [m]otion for [s]ummary
[j]udgment filed on behalf of Respondent, Frank E. Corrente, is hereby denied.” To clarify, the
record does not show that Corrente filed a motion for summary judgment in the Superior Court.
Rather, it appears that the trial justice was referring to his 2011 decision, wherein he denied two
of Corrente’s requests for additional relief set forth in his counterclaim.


                                                -10-
because of “mere philosophical differences.” Accordingly, he asserts that the trial justice should

not have confirmed the board’s decision with respect to the tax credit.

       On appeal, the intervenors argue that the trial justice erred in applying the APA standard

of review to the board’s action. Rather, they maintain that the Superior Court should employ a

de novo review to actions brought by the board pursuant to the HSO. In the alternative, the

intervenors assert that, even under the APA standard of review, the trial justice erred in

confirming the board’s decision to reduce Corrente’s retirement benefits because the decision

was arbitrary, capricious, “affected by error of law,” clearly erroneous, and an abuse of

discretion.

       The board challenges the trial justice’s decision to grant the motion to intervene brought

by the mayor and the city. It argues that the intervenors failed to satisfy the requirements of Rule

24(a), specifically the fourth requirement that the existing parties to the action do not adequately

represent the applicant’s interest. The board maintains that intervention was improper because

the mayor had to seek a resolution by the city council in order to challenge the board’s decision.

                                                 II

                                       Standard of Review

       As there are three appeals before this Court that raise different issues, there are multiple

standards of review. With respect to the board’s challenge to the trial justice’s grant of the

mayor and the city’s motion to intervene, our standard of review is undisputed. “[T]his Court

reviews a trial justice’s grant of a motion to intervene for abuse of discretion, reversing only if

the justice failed to apply the standards set forth in Rule 24(a)(2), or otherwise committed clear

error.” Hines Road, LLC, 113 A.3d at 928 (quoting Town of Coventry v. Baird Properties, LLC,

13 A.3d 614, 619 (R.I. 2011)).




                                               -11-
       The intervenors and the board dispute the Superior Court’s standard of review for an

action brought by the board pursuant to the HSO; and consequently the standard of review this

Court must employ when reviewing the trial justice’s decision is contested. The board asserts

that the trial justice correctly applied an APA standard of review, and the intervenors argue that

the trial justice should have employed a de novo review. Thus, this Court must determine the

appropriate standard of review in the Superior Court for the board’s action before we can

determine our standard of review for the trial justice’s decisions.

                                                 III

                                            Discussion

                                                 A

                                           Intervention

       We will first address the issue of intervention. Rule 24 governs intervention as of right.

Rule 24(a)(2) provides in pertinent part as follows:

               “Upon timely application anyone shall be permitted to intervene in
               an action * * * [w]hen the applicant claims an interest relating to
               the property or transaction which is the subject of the action and
               the applicant is so situated that the disposition of the action may as
               a practical matter impair or impede the applicant’s ability to
               protect that interest, unless the applicant’s interest is adequately
               represented by existing parties.”

There are four requirements to intervene as of right pursuant to Rule 24(a)(2):

               “[(1)] the applicant files a timely application * * *, [(2)] the
               applicant claims an interest relating to the property or transaction
               which is the subject matter of the action, [(3)] the disposition of the
               action may as a practical matter impair or impede the applicant’s
               ability to protect that interest, and [(4)] the applicant’s interest is
               not adequately represented by current parties to the action * * *.”
               Hines Road, LLC, 113 A.3d at 927 (quoting Tonetti Enterprises,
               LLC, 943 A.2d at 1072-73).




                                                -12-
       The board maintains that the trial justice erred in granting the mayor and the city’s

motion to intervene because they did not satisfy the requirements of Rule 24(a)(2). We disagree.

In reaching his decision, the trial justice noted Rule 24(a)(2)’s four requirements and analyzed

whether each was met. He determined that: (1) the motion to intervene was timely; (2) the

transaction that was the subject matter of the action—namely the board’s decision to reduce

Corrente’s pension benefits—was “of high significance to the City of Providence”; (3)

disposition of the action would impair or impede the interest of the mayor and the city because it

would deprive them of the opportunity to assert their position and argue for a de novo review;

and (4) the interest of the mayor and the city would not be adequately represented given the

significant divide between their position and those of Corrente and the board.

       This Court notes that, on appeal, the board does not raise any specific arguments

regarding the trial justice’s findings with respect to the first, second, and third requirements of

Rule 24(a)(2).    The board appears to challenge the trial justice’s finding on the fourth

requirement that the board would not adequately represent the interest of the mayor and the city.

Specifically, it cites to federal jurisprudence to support its assertion that a presumption of

adequate representation exists when a governmental entity is a party. See, e.g., Maine v.

Director, United States Fish & Wildlife Service, 262 F.3d 13, 19 (1st Cir. 2001) (“Generally, our

decisions have proceeded on the assumption, subject to evidence to the contrary, that the

government will adequately defend its actions, at least where its interests appear to be aligned

with those of the proposed intervenor.”).

       Because “Rhode Island precedent on this point is sparse,” this Court “may properly look

to the federal courts for guidance.” Tonetti Enterprises, LLC, 943 A.2d at 1073. The First

Circuit explained that “‘[p]resumption’ means no more in this context than calling for an




                                               -13-
adequate explanation as to why what is assumed—here, adequate representation—is not so.”

Director, United States Fish & Wildlife Service, 262 F.3d at 19.           This is a fact-intensive

determination that “must be determined ‘in keeping with a commonsense view of the overall

litigation.’” Id. (quoting Public Service Co. of New Hampshire v. Patch, 136 F.3d 197, 204 (1st

Cir. 1998)). “The trial court, in applying a general rule to specific facts, is usually accorded a

measure of deference in making the adequate-representation determination, so long as the court

applies the proper legal standards.” Massachusetts Food Association v. Massachusetts Alcoholic

Beverages Control Commission, 197 F.3d 560, 567 (1st Cir. 1999).

       Our review reveals that the mayor and the city indeed rebutted this presumption. As the

trial justice found, “a vast gulf” exists between the position of the board and that of the

intervenors. Given that they could not be more dissimilar, the trial justice determined that the

board would not adequately represent the interest of the mayor and the city. See Cotter v.

Massachusetts Association of Minority Law Enforcement Officers, 219 F.3d 31, 35 (1st Cir.

2000) (“[E]nough likelihood of conflict or divergence of interest exists to defeat any claim that

‘the applicant’s interest is adequately represented by existing parties’ * * * .”). In light of the

deference we accord to the trial justice on review, we are satisfied that he did not err or abuse his

discretion in finding that the intervenors satisfied Rule 24(a)(2)’s fourth requirement.

       The additional argument that the board presses on appeal focuses on the powers of the

mayor, as set forth in Article III, § 302 of the City of Providence Home Rule Charter (city




                                                -14-
charter), and those of the board as delineated in Article IX, § 908 of the city charter.12 The board

asserts that Article I, § 104 of the city charter requires the mayor to first obtain authorization

from the city council if he or she seeks to challenge the board. Article I, § 104 of the city charter

provides that “[a]ll powers of the city shall be exercised in the manner prescribed by this Charter

or, if not so prescribed, then in such manner as shall be provided by ordinance or resolution of

the city council.” Because the charter does not authorize the mayor to bring action against the

board, the board maintains that the mayor must do so through resolution of the city council,

which he did not do.

          Although this is a cogent argument, our review of the record reveals that the board did

not raise this argument below, and therefore it is waived.          Below, in its memorandum in

objection to the motion to intervene, the board merely asserted that “[t]he [m]ayor does not cite

any provision in the Providence Home Rule Charter that confers upon him standing to institute a

civil action to oppose the decision of his own [b]oard * * * .” Again at the hearing on the motion

to intervene, the board did not reference Article I, § 104 of the city charter to support its

12
     Article III, § 302 of the City of Providence Home Rule Charter provides, in part:

                 “The powers and duties of the mayor shall include, without
                 limitation, the following:

                         “(a) To supervise, direct and control the activities of all
                         departments and agencies of city government to the extent
                         and in the manner provided by this Charter and by the
                         ordinances of the city, and the laws of the state.”

Article IX, § 908(b) of the city charter provides, in part:

                 “The powers and duties of the retirement board shall be, without
                 limitation, the following:

                         “(1) To establish rules and regulations for and be
                         responsible for the administration and operation of the city
                         employee retirement systems under its jurisdiction * * * .”


                                                 -15-
argument that the city council needed to pass a resolution in order for the mayor to challenge the

board’s decision, although it referenced generally the powers of the mayor and the board.

Accordingly, we are of the opinion that the board waived this argument. See Roach v. State, 157

A.3d 1042, 1057 (R.I. 2017) (“It is well settled [under our raise-or-waive rule] that a litigant

cannot raise an objection or advance a new theory on appeal if it was not raised before the trial

court.” (quoting State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008))). Thus, although we are not

entirely persuaded that intervention was appropriately granted in the circumstances of this case,

we shall nevertheless proceed to consider the arguments raised by the intervenors on appeal.

                                                B

                          The Superior Court’s Standard of Review

         The intervenors assert that the trial justice erroneously applied the APA standard of

review and instead should have reviewed the board’s decision de novo. The intervenors dispute

the applicability of the APA to the HSO, arguing that “the APA clearly does not apply to a

municipal entity such as the [b]oard, which focuses solely on matters of local concern, possesses

no statewide authority and performs no statewide function.” They maintain that the HSO is more

akin to the Rhode Island Public Employee Pension Revocation and Reduction Act (PEPRRA),

G.L. 1956 chapter 10.1 of title 36, than to proceedings conducted pursuant to the APA, as both

the HSO and PEPRRA instruct their respective boards to initiate a civil action in the Superior

Court.

         This Court must interpret the HSO’s language to determine the appropriate standard of

review for civil actions in the Superior Court brought by the board pursuant to the ordinance.

We review questions of statutory interpretation de novo. Ryan, 11 A.3d at 70. “In interpreting

the provisions of this ordinance, we begin by giving the terms contained in it their plain and




                                              -16-
ordinary meaning.” Id. at 74. “When interpreting an ordinance, we employ the same rules of

construction that we apply when interpreting statutes.” Morse v. Employees Retirement System of

Providence, 139 A.3d 385, 391 (R.I. 2016) (quoting Murphy v. Zoning Board of Review of South

Kingstown, 959 A.2d 535, 541 (R.I. 2008)). When the language of the ordinance is clear and

unambiguous, “we must enforce it as written by giving the words of the [ordinance] their plain

and ordinary meaning.” Id. (quoting Murphy, 959 A.2d at 541). If the ordinance’s language is

unclear and ambiguous, however, we “examine the entire statute to ascertain the intent and

purpose of the Legislature.” Prew v. Employee Retirement System of Providence, 139 A.3d 556,

561 (R.I. 2016) (quoting Trant v. Lucent Technologies, 896 A.2d 710, 712 (R.I. 2006)).

       The HSO provided, in relevant part:

              “Sec. 17-189.1. Honorable service, revocation or reduction of
              retirement benefits of employees committing crime related to
              public employment.

                      “(a) General provisions.

                      “(1) Payment of an employee’s retirement allowance or
                      annuity or other benefit or payments as provided in chapter
                      17 shall be for honorable service only.

                      “* * *

                      “(4) Revocation or reduction authorized. Notwithstanding
                      any other provision of law, any retirement allowance or
                      annuity or other benefit or payment of any kind to which an
                      employee is otherwise entitled to under chapter 17 shall be
                      revoked or reduced in accordance with the provisions of
                      this section if such employee is convicted of or pleads
                      guilty or nolo contendere to any crime related to his or her
                      public employment. Any such conviction or plea shall be
                      deemed to be a breach of the employee’s contract with his
                      or her employer.

                      “(5) Hearing; civil action. Whenever any employee is
                      convicted of or pleads guilty or nolo contendere to any
                      crime related to his or her public employment, the



                                              -17-
                       retirement board shall conduct a meeting, with the
                       employee having the opportunity to be heard, to determine
                       if a recommendation of revocation or reduction of any
                       retirement allowance or annuity or other benefit or payment
                       to which the employee is otherwise entitled to under this
                       chapter is warranted. If the retirement board determines
                       that revocation or reduction of any retirement allowance or
                       annuity or other benefit or payment to which the employee
                       is otherwise entitled to under this chapter is warranted, the
                       retirement board shall initiate a civil action in the
                       [S]uperior [C]ourt for the revocation or reduction of any
                       retirement allowance or annuity or other benefit or payment
                       to which the employee is otherwise entitled to under
                       chapter 17.” City of Providence, Code of Ordinances, Ch.
                       17, Art. VI, Sec. 17-189.1 (as enacted in 1999). 13

       To summarize, the HSO required the board to hold a meeting where the employee had an

opportunity to be heard to determine whether a recommendation of revocation or reduction of

pension benefits was warranted. If the board determined that either revocation or reduction was

justified, it was required to “initiate a civil action in the [S]uperior [C]ourt for the revocation or

reduction of any retirement allowance.” Art. VI, Sec. 17-189.1(a)(5). We conclude that the

HSO’s phrase “initiate a civil action” is ambiguous because it lends itself to more than one

reasonable meaning; it can encompass either a de novo proceeding or an administrative appeal,

like a proceeding conducted pursuant to the APA. Id.; see Morse, 139 A.3d at 392 (“the

ordinance is subject to a variety of constructions and is therefore, by definition, ambiguous”).

Because the HSO’s language is unclear, this Court must “establish[ ] and effectuate[ ] the

legislative intent behind the enactment.” Morse, 139 A.3d at 391 (quoting Pawtucket Transfer

Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859 (R.I. 2008)).




13
   As previously noted, the HSO was amended in 2011. The amended HSO applies only to
applications for pension benefits made on or after January 1, 2011; thus, only the pre-2011 HSO
is applicable to this case. See City of Providence, Code of Ordinances, Ch. 17, Art. VI, Sec. 17-
189.1(i) (as amended in 2011).


                                                -18-
       In interpreting the HSO, it is instructive to look to comparable Rhode Island state

legislation. The trial justice likened the city board’s two-tiered review process to that of the state

retirement board, which is an “agency” subject to the APA pursuant to § 42-35-1. The state

retirement board has regulations that set forth the procedures to follow when hearing “contested

cases.”14 See generally 120 RICR 10-00 Sec. 1.4(A) (Rhode Island Code of Regulations). For

the first tier, the regulations provide for a formal hearing presided over by a hearing officer,

during which parties can examine witnesses and present evidence. 120 RICR 10-00 Sec. 1.4(F).

After the hearing officer reaches a decision, “[e]ach party to the proceeding shall be given the

right to make exceptions, to file briefs and to make oral arguments before the Retirement Board.”

120 RICR 10-00 Sec. 1.4(J). The state retirement board, as the second tier, considers the hearing

officer’s decision and “such other argument as shall be presented by any party to the

proceeding,” and it then votes on the hearing officer’s recommendation. Id. The regulations do

not provide for an appeal to the Superior Court; however, an employee could appeal pursuant to

the APA. See § 42-35-15(a) (“Any person * * * who has exhausted all administrative remedies

available to him or her within the agency, and who is aggrieved by a final order in a contested

case is entitled to judicial review under this chapter.”).

       The trial justice correctly noted significant similarities between the two boards’

processes. Although the city board was not a state agency subject to the APA like the state

retirement board, it nevertheless employed a two-tiered review process.15           After the board



14
   A “contested case” is defined as “a matter for which a member requests a hearing because he
or she is aggrieved by an administrative action other than a Disability decision.” 120 RICR 10-00
§1.4(B)(1)(a).
15
   The HSO also did not require the board to employ a two-tiered review process, it merely
provided that: (1) the board must conduct a meeting, where the employee has the opportunity to
be heard, to determine if revocation or reduction of pension benefits was warranted and (2) if the
board determined that revocation or reduction was warranted, it must initiate a civil action in the


                                                 -19-
suspended Corrente’s benefits, it appointed Prof. Ritchie as the “independent hearing officer.”

Following the hearing, Prof. Ritchie issued a report and recommendation to the board. The

board then voted to adopt the recommendation, and it subsequently brought suit in the Superior

Court to confirm its decision. In summary, both the state retirement board and the city board: (1)

conduct a hearing before a hearing officer who issues a recommendation to the retirement board,

and (2) the retirement board then votes on said recommendation.

       The intervenors, however, maintain that the HSO is more similar to PEPRRA. PEPRRA,

like the HSO, provides a mechanism for the state retirement board to revoke or reduce the

pension benefits of a public official or state employee who “is convicted of or pleads guilty or

nolo contendere to any crime related to his or her public office or public employment * * * .”

Section 36-10.1-3(b). PEPRRA also requires the state retirement board to initiate a civil action

in the Superior Court, just like the HSO. Section 36-10.1-3(b)(1). PEPRRA, however, provides

the Superior Court with multiple factors to consider when deciding whether the employee’s

benefits should be revoked or reduced, including the honorable-service presumption and

requirement, the severity of the crime, the financial loss caused by the crime, the degree of

public trust placed in that employee, and other factors that justice may require. Section 36-10.1-

3(c)(2). Then, the Superior Court decides whether the employee’s benefits should be reduced or

revoked. Section 36-10.1-3(c)(1). Because PEPRRA cases are not administrative appeals, the

APA standard of review does not apply.

       Although similarities exist between PEPRRA and the HSO, the two differ in many

regards. Notably, PEPRRA does not require the state retirement board to conduct a hearing prior


Superior Court for the revocation or reduction of said benefits. Providence, Code, Ch. 17, Art.
VI, Sec. 17-189.1(a)(5). Thus, the city board could have satisfied the HSO’s requirements by
conducting an informal meeting, with only the board and Corrente present, during which
Corrente had an opportunity to be heard.


                                              -20-
to initiating an action in the Superior Court. This is a key distinction because, under PEPRRA,

absent a de novo review in the Superior Court, the employee would not have an opportunity to be

heard. In contrast, under the HSO, the employee has an opportunity to be heard prior to the

board’s determination of revocation or reduction. Consequently, although both PEPRRA and the

HSO require their respective retirement boards to “initiate a civil action in the [S]uperior

[C]ourt,” this is the first and only opportunity for the employee to be heard under PEPRRA,

whereas under the HSO the employee has already been heard before the board prior to the

Superior Court action. Compare § 36-10.1-3 (instructing the state retirement board to commence

an action in the Superior Court where the employee will “appear and show cause”) with Sec. 17-

189.1(a)(5) (instructing the city retirement board to first hold a meeting where the employee will

have an opportunity to be heard and to then initiate an action in the Superior Court). Therefore,

despite the fact that the language of the HSO closely mirrors that of PEPRRA, the actual

processes employed by the city retirement board differ from those under PEPRRA.

       Consequently, it is our opinion that the HSO is more closely comparable to the two-tiered

review process utilized by the state retirement board than to proceedings conducted pursuant to

PEPRRA. The trial justice correctly construed the language in the HSO mandating that the

board “initiate a civil action in the [S]uperior [C]ourt” as akin to an administrative appeal and

appropriately applied the standard of review set forth in the APA.

                                                C

                                             Merits

       Having concluded that the trial justice correctly employed the APA standard of review to

the board’s decision, this Court will review his decision using the standard of review for

decisions rendered pursuant to the APA. “When this Court reviews the judgment of the Superior




                                              -21-
Court in administrative proceedings, our review is limited to questions of law.” Iselin v.

Retirement Board of Employees’ Retirement System of Rhode Island, 943 A.2d 1045, 1048 (R.I.

2008) (quoting Rossi v. Employees’ Retirement System of Rhode Island, 895 A.2d 106, 110 (R.I.

2006)). “Although this Court affords the factual findings of an administrative agency great

deference, questions of law—including statutory interpretation—are reviewed de novo.”

McAninch v. State of Rhode Island Department of Labor and Training, 64 A.3d 84, 86 (R.I.

2013) (quoting Heritage Healthcare Services, Inc. v. Marques, 14 A.3d 932, 936 (R.I. 2011)).

       “This Court does not substitute its judgment for that of the agency concerning the

credibility of witnesses or the weight of the evidence concerning questions of fact.” Beagan v.

Rhode Island Department of Labor and Training, 162 A.3d 619, 626 (R.I. 2017) (quoting

Tierney v. Department of Human Services, 793 A.2d 210, 213 (R.I. 2002)). Pursuant to § 42-35-

15(g) of the APA, this Court may:

              “affirm the decision of the agency or remand the case for further
              proceedings, or it may reverse or modify the decision if substantial
              rights of the appellant have been prejudiced because the
              administrative findings, inferences, conclusions, or decisions are:

                      “(1) In violation of constitutional or statutory provisions;

                      “(2) In excess of the statutory authority of the agency;

                      “(3) Made upon unlawful procedure;

                      “(4) Affected by other error or law;

                      “(5) Clearly erroneous in view of the reliable, probative,
                      and substantial evidence on the whole record; or

                      “(6) Arbitrary or capricious or characterized by abuse of
                      discretion or clearly unwarranted exercise of discretion.”

       “[T]his Court will not weigh the evidence; ‘we limit the scope of our review to the record

as a whole to determine whether any legally competent evidence exists therein to support the



                                               -22-
trial court’s decision or whether the trial court committed error of law in reaching its decision.’”

Beagan, 162 A.3d at 626 (quoting Rhode Island Temps, Inc. v. Department of Labor and

Training, Board of Review, 749 A.2d 1121, 1124 (R.I. 2000)).            We have defined legally

competent evidence as “such relevant evidence that a reasonable mind might accept as adequate

to support a conclusion, and means an amount more than a scintilla but less than a

preponderance.” Id. (quoting Rhode Island Temps, Inc., 749 A.2d at 1125).

       The intervenors assert that the board’s decision to reduce Corrente’s pension rather than

revoke it was “arbitrary, capricious and affected by error of law.” They reference four prior

decisions where the board revoked or substantially reduced the pensions of employees for

violating the HSO. The intervenors maintain that, in each of those four cases, the hearing

officers recommended complete revocations and the board voted to revoke the pension benefits

of employees who violated the HSO. They assert that “the facts and circumstances comprising

the dishonorable service of each of these four individuals are less compelling and onerous than

the facts regarding [Corrente’s] dishonorable service.”

       The board adopted Prof. Ritchie’s report and recommendation as its final decision;

therefore, we shall look to this report and recommendation to analyze the board’s decision to

reduce rather than revoke Corrente’s pension. As noted in the report, Corrente had two terms of

city employment, and his convictions arose out of acts committed during his second term of

employment as the director of administration. Professor Ritchie considered the nearly four-year

break between Corrente’s first term of employment and his second term as the director of

administration and determined that “[t]he break between the two terms of [c]ity employment, the

drawing of retirement benefits before taking on the second term, and the confinement of any




                                               -23-
alleged dishonorable service to the second term of employment with the [c]ity suggest a division

that should be recognized under the [HSO].”

       Professor Ritchie further found that, while “[s]ome might argue that [Corrente] deserves

more punishment,” the HSO is not penal; rather, “[i]t is the breach of employment contract that

is the province of the HSO.”        Accordingly, Prof. Ritchie framed the issue “as whether

[Corrente’s] dishonorable acts during his second term of employment as [d]irector of

[a]dministration breached his earlier and severable contract of employment in the Controller’s

Office.” He concluded that the answer was “logically” no. Professor Ritchie recommended that

the board revoke all benefits attributable to Corrente’s second term of employment and reinstate

the benefits relating to his first term. Our review of the report and recommendation adopted by

the board reveals that the board’s decision was not arbitrary, capricious, or affected by other

errors or law. The HSO provides for either reduction or revocation of pension benefits, and the

report clearly explains the rationale behind the decision to reduce, rather than revoke, Corrente’s

pension.

       The intervenors point to the board’s previous decisions to revoke the pension benefits of

four other former employees who violated the HSO. They argue that, under the APA standard of

review, once a rule or precedent is established by an entity, such as the board, the entity cannot

deviate from that rule or precedent without offering an adequate explanation. The intervenors

rely on Town of Burrillville v. Pascoag Apartment Associates, LLC, 950 A.2d 435 (R.I. 2008),

where this Court held that under general administrative law principles for adjudicative

rulemaking, “a presumption exists that an agency will adhere to its settled rule, and the agency

must explain a departure from its prior norms.” Id. at 451. “The grounds for departure from the

settled rule ‘must be clearly set forth so that the reviewing court may understand the basis of the




                                               -24-
agency’s action and so may judge the consistency of that action with the agency’s mandate.’” Id.

(quoting Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800,

808 (1973)). In Town of Burrillville, we concluded that the State Housing Appeals Board’s

failure to adhere to its own definition of a term at issue was arbitrary and capricious because it

provided no reason or explanation for its departure from its previously-adopted definition. Id.

       The present matter differs from the circumstances present in Town of Burrillville because,

unlike the State Housing Appeals Board, here, the board provided an adequate explanation for its

departure from the “settled rule.” Corrente was the only city employee before the board who had

two distinct terms of employment with the city.              Professor Ritchie, in his report and

recommendation adopted by the board, considered Corrente’s two terms of employment

pertinent, especially because “there [was] no allegation of any dishonorable service during Mr.

Corrente’s first term of employment with the [c]ity.” He found that “[t]he break between the two

terms of [c]ity employment, the drawing of retirement benefits before taking on the second term,

and the confinement of any alleged dishonorable service to the second term of employment with

the [c]ity suggest a division that should be recognized under the ordinance.” See Atchison,

Topeka & Santa Fe Railway Co., 412 U.S. at 808 (holding that an agency may depart from prior

norms because “although the rule in general serves useful purposes, peculiarities of the case

before it suggest that the rule not be applied in that case”).

       In our opinion, the board’s decision was not arbitrary, capricious, or affected by other

errors or law. The HSO contemplates reduction or revocation of pension benefits, and the report

clearly explains the rationale behind the decision to reduce, rather than revoke, Corrente’s

pension benefits. Thus, we cannot say that the board’s decision was irrational, illogical, or not

supported by substantial evidence.




                                                 -25-
                                                 D

                                         Tax Credit Issue

       On appeal, Corrente asserts that the trial justice erred in confirming the retirement

board’s decision to deny his request for a tax credit. Specifically, Corrente maintains that the

trial justice failed to apply the standard set forth in Environmental Scientific Corp. v. Durfee, 621

A.2d 200 (R.I. 1993), to the effect that the board, as the second tier of the administrative process,

needed adequate rationale to reject Prof. Ritchie’s recommendation that the board provide

Corrente with a tax credit. Corrente asserts that this is an error of law which this Court must

review de novo.

       In reviewing the board’s decision to deny Corrente a tax credit, this Court employs the

same standard that we applied above when we reviewed the board’s decision to reduce

Corrente’s pension benefits. We will not weigh the evidence; rather, our review is limited to

“the record as a whole to determine whether any legally competent evidence exists therein to

support the trial court’s decision or whether the trial court committed error of law in reaching its

decision.” Beagan, 162 A.3d at 626 (quoting Rhode Island Temps, Inc., 749 A.2d at 1124).

       We are of the opinion that the board’s decision to deny Corrente’s request for a tax credit

is supported by legally competent evidence. The board discussed the tax credit issue at two

different meetings and heard from counsel for the board and for Corrente before it ultimately

voted to deny Corrente’s request. Members of the board raised various concerns about the tax

credit. In particular, some members were troubled by the lack of a quantifiable number for the

amount of taxes that Corrente allegedly paid on the pension amount and the lack of any

documentation to substantiate his assertion that he paid taxes on the pension benefits. Members

of the board also expressed concern with taking money from the city’s retirement fund to give




                                                -26-
Corrente a tax credit. Additionally, there was uncertainty regarding whether the board was

authorized to grant a tax credit.

       Corrente failed to assuage the board’s concerns; he did not provide any documentation to

show that he did in fact pay taxes on the pension benefits nor did he reference any legal authority

that sets forth the board’s power to grant a tax credit. Looking to the HSO, the pertinent

ordinance under which the board reduced Corrente’s pension benefits, there is no language that

indicates that the board had authority to grant a tax credit. We are confident that the board’s

decision to deny Corrente’s request for a tax credit was supported by legally competent evidence.

       Additionally, we reject Corrente’s assertion that the trial justice failed to apply the correct

standard when reviewing the board’s decision regarding the tax credit. Corrente asserts that the

trial justice “inexplicably did not use” the standard set forth in Environmental Scientific Corp.

621 A.2d at 206. “As we noted in Environmental Scientific, in a two-tiered administrative

process, the ultimate decision-maker owes deference to the recommendations of the first-tier

decision-maker only if those recommendations were based on determinations of witness

credibility.” Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 807 (R.I.

2000). “If the recommendations were not based on credibility determinations, the ultimate

decision-maker may review the recommendations on a de novo basis.” Id. Here, because Prof.

Ritchie’s recommendation of a tax credit was not based on the credibility of witnesses, the board

did not owe his recommendation deference. Accordingly, the trial justice appropriately reviewed

the board’s decision under the APA standard of review, determined that the board did not abuse

its discretion, and denied Corrente’s motion to overrule the board’s decision.               For the

aforementioned reasons, we will not disturb the trial justice’s denial of Corrente’s motion to

overrule the board’s decision to deny him a tax credit.




                                                -27-
                                             IV

                                        Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court and remand

the papers thereto.




                                            -28-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     Retirement Board of the Employees’ Retirement
                                     System of the City of Providence v. Frank E. Corrente
Title of Case
                                     and Mayor of the City of Providence et al.

                                     No. 2015-246-Appeal.
                                     No. 2015-244-Appeal.
Case Number
                                     No. 2015-243-Appeal.
                                     (PB 08-6508)
Date Opinion Filed                   December 15, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Michael A. Silverstein
                                     For Plaintiff:

                                     Raymond A. Marcaccio, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     John B. Harwood, Esq.
                                     John D. Plummer, Esq.




SU-CMS-02A (revised June 2016)
