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SJC-11772

         CHARLENE GALENSKI   vs.   TOWN OF ERVING & others.1



         Franklin.     January 6, 2015. - April 17, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                            Hines, JJ.


Public Employment, Retirement benefits. School and School
     Committee, Retirement benefits, Group insurance. Municipal
     Corporations, Group insurance, Allocation of insurance
     premiums. Insurance, Group, Premiums. Retirement.



     Civil action commenced in the Superior Court Department on
November 21, 2012.

     The case was heard by John A. Agostini, J., on motions for
summary judgment.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Patricia M. Rapinchuk for the defendants.
     Eric Lucentini (Sandra Lucentini with him) for the
plaintiff.


    DUFFLY, J.    Charlene Galenski retired in 2012 after six

years of service as a school principal in the town of Erving

    1
        Board of selectmen of Erving and treasurer of Erving.
                                                                    2


(town); she previously had been a long-time public school

teacher in other municipalities in the Commonwealth.   Galenski

then sought continued health insurance coverage and contribution

by the town to the cost of her group health insurance premiums.

In 2001, the town had voted to adopt G. L. c. 32B, § 9E, which

required it to contribute over fifty per cent of the health

insurance premiums of all of its retirees.   Before employing

Galenski, however, the town had enacted a policy stating that it

would contribute only to the group health insurance premiums of

retired employees who had retired after a minimum of ten years

of employment with the town.   Although Galenski was permitted to

remain a member of the town's group health insurance plan after

she retired, the town determined she was not eligible for any

contribution by the town to her health insurance premiums.

    Galenski filed a complaint in the Superior Court contending

that the town had violated her right to payment by the town of a

portion of her group medical insurance premiums, as required

under G. L. c. 32B, § 9E; she sought declaratory and injunctive

relief, and also raised a claim of estoppel based on detrimental

reliance.   A judge of the Superior Court allowed Galenski's

motion for summary judgment on the first two claims, denied the

town's cross motion for summary judgment, and issued a permanent
                                                                      3


injunction prohibiting the town from enforcing its policy.2     The

town appealed, and we transferred the case to this court on our

own motion.   We conclude that, because the town had voted to

accept G. L. c. 32B, a local option statute that governs group

health insurance for municipal employees, the terms of the

statute govern whether and in what amounts the town must

contribute to the cost of a retiree's health insurance premiums.

Accordingly, the town's retirement policy imposing a minimum

term of service as a prerequisite to premium contributions from

the town is invalid.

     1.   Factual background.   We recite the facts as set forth

in the judge's decision, supplemented by undisputed facts in the

record.   In 1956, the town voted to accept G. L. c. 32B; by

accepting certain local option provisions of that statute, the

town was required to make group health insurance coverage

available to retired employees.   In 2001, the town's voters

chose to accept G. L. c. 32B, § 9E.3   General Laws c. 32B, § 9E,


     2
       Final judgment was entered only as to the first two
claims; the claim for detrimental reliance is not before us.
     3
       The town of Erving (town) accepted G. L. c. 32B, § 9E, by
a majority vote on the following ballot question, the language
of which is prescribed by the statute:

          "Shall the town, in addition to the payment of fifty
     percent of a premium for contributory group life, hospital,
     surgical, medical, dental, and other health insurance for
     employees retired from the service of the town . . . pay a
     subsidiary or additional rate?"
                                                                     4


requires municipalities to contribute to the group health

insurance premiums of retired employees at a rate determined by

the municipality, but that rate must exceed fifty per cent of

the cost of the insurance premiums.4

     In February, 2006, the town enacted a retirement policy

restricting participation in its group health insurance plan to

those employees who retired from the town "after a minimum of

ten (10) years of employment by the [t]own."    The policy further

provided that "[a]n eligible retiree with less than ten (10)

years of employment with the [town] may choose to continue

health insurance coverage through the [t]own's carrier at [one

hundred per cent] of the retiree's cost."

     Galenski began employment as the principal of Erving

Elementary School on July 1, 2006.5    At that time, she was a

long-time educator with over thirty years of creditable service6

as a public school teacher in the Commonwealth.7    As an active



     4
       During the time frame at issue here, the town's rate of
contribution under G. L. c. 32B, § 9E, was seventy-nine per cent
of the cost of a retiree's health insurance premiums.
     5
       Charlene Galenski was informed of the town's retirement
policy before she commenced employment.
     6
       An employee must have a minimum of ten years of creditable
service to qualify for superannuation retirement. See G. L.
c. 32, § 5 (1) (m).
     7
       Galenski spent the first thirty years of her public school
teaching career in other municipalities, at least some of which
had accepted G. L. c. 32B, § 9A or 9E.
                                                                        5


employee, Galenski was enrolled in the town's health insurance

plan, and the town contributed to the cost of her health

insurance premiums.     Galenski retired in good standing in

October, 2012, after six years of service to the town.

     At a meeting on October 1, 2012, the town's board of

selectmen determined that Galenski, although eligible to

continue to participate in the town's group health insurance

plan, would be responsible for one hundred per cent of her

insurance premiums.     After her retirement, Galenski continued to

participate in the town's group health insurance plan, paying

the entire amount of the monthly premiums.8

     2.   Discussion.    a.   Standard of review.   We review a grant

of summary judgment de novo to determine whether, viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to judgment as a matter of law.      DeWolfe v. Hingham

Ctr., Ltd., 464 Mass. 795, 799 (2013).     See Mass. R. Civ.

P. 56 (c), as amended, 436 Mass. 1404 (2002).

     b.   Statutory framework.    General Laws c. 32B is a local-

option statute governing various insurance benefits for

employees of municipalities and other State political


     8
       The judge's order on the town's cross motion for summary
judgment noted that Galenski was at that time still paying one
hundred per cent of the then approximately $1,200 monthly
premium.
                                                                    6


subdivisions.   Cioch v. Treasurer of Ludlow, 449 Mass. 690, 690

n.2 (2007).   The purpose of G. L. c. 32B "is to provide a plan

of group life insurance, group accidental death and

dismemberment insurance and group general or blanket hospital,

surgical, medical, dental and other health insurance for certain

persons in the service of counties . . . , cities, towns and

districts and their dependents."   G. L. c. 32B, § 1.

    As a local-option statute, G. L. c. 32B "does not take

effect until a governmental unit accepts it."   Connors v.

Boston, 430 Mass. 31, 37 (1999).   "Once accepted, however, it

provides the exclusive mechanisms by which and to whom the

[municipality] may provide group health insurance."     Id.   See

Yeretsky v. Attleboro, 424 Mass. 315, 316-317 (1997).    Where a

municipality has exercised its local option to provide group

health insurance for its employees through acceptance of G. L.

c. 32B, "employees are automatically covered by group insurance

unless the employee 'give[s] written notice . . . indicating

that he is not to be insured for such coverages.'"    McDonald v.

Town Manager of Southbridge, 39 Mass. App. Ct. 479, 480 (1995),

S.C., 423 Mass. 1018 (1996), quoting G. L. c. 32B, § 4.

    Under the "default" provision of G. L. c. 32B, § 9, if

group health insurance is offered to a municipality's active

employees, such insurance coverage "shall be continued [for

retired employees] and the retired employee shall pay the full
                                                                    7


premium cost, subject to the provisions of [G. L. c. 32B, § 9A

or 9E,] whichever may be applicable."   See Yeretsky v.

Attleboro, supra at 317.   In lieu of the default provision under

G. L. c. 32B, § 9, a municipality adopting G. L. c. 32B may opt

to accept one of these two local options, which require

contributions by the municipality to a retiree's group insurance

premiums.   By adopting G. L. c. 32B, § 9A, a municipality

chooses to pay fifty per cent of a retiree's insurance premiums;

if a municipality adopts G. L. c. 32B, § 9E, the municipality

then "may elect to pay 'a subsidiary or additional rate' greater

than fifty per cent of a retiree's health insurance premium."

Somerville v. Commonwealth Employment Relations Bd., 470 Mass.

563, 565 (2015).   In addition, G. L. c. 32B, § 9E, mandates that

"[n]o governmental unit . . . shall provide different subsidiary

or additional rates to any group or class within that unit."

    c.   Validity of the town's term of service requirement.

The town contends that its term of service policy, restricting

the town's obligation to contribute to retirees' health

insurance premiums to those retirees who were employed by the

town for a minimum of ten years, is consistent with the language

and purpose of G. L. c. 32B, § 9E.   The town relies on Cioch v.

Treasurer of Ludlow, 449 Mass. at 696-697, for the proposition

that a town policy or regulation permissibly may limit a

retiree's eligibility for insurance coverage under G. L. c. 32B,
                                                                    8


§ 9E.    The town construes the prohibition in G. L. c. 32B, § 9E,

against affording different premium contribution rates to "any

group or class" as meaning only that groups such as teachers,

fire fighters, and police officers cannot, through collective

bargaining, negotiate different rates of contribution for their

members.    The town argues that such collective bargaining by

separate groups could expose a municipality to expensive

administrative costs, thereby defeating what it views to be the

Legislature's purpose of cost containment.

    "[A] statute must be interpreted according to the intent of

the Legislature ascertained from all its words construed by the

ordinary and approved usage of the language, considered in

connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be

accomplished, to the end that the purpose of its framers may be

effectuated."   Worcester v. College Hill Props., LLC, 465 Mass.

134, 139 (2013), quoting Harvard Crimson, Inc. v. President &

Fellows of Harvard College, 445 Mass. 745, 749 (2006).     In

interpreting a statute, we look first to its plain language.

Worcester v. College Hill Props., LLC, supra at 138.

        Municipalities accepting G. L. c. 32B, § 9E, "shall . . .

in addition to the payment of fifty per cent of a premium for

contributory group life, hospital, surgical, medical, dental and

other health insurance for employees retired from the service of
                                                                     9


the town, and their dependents, pay a subsidiary or additional

rate" that is determined by vote of the municipality.    "The word

'shall' is ordinarily interpreted as having a mandatory or

imperative obligation."    Hashimi v. Kalil, 388 Mass. 607, 609

(1983).   The statute, by its terms, is mandatory, and "once

accepted the municipality must comply with the statute's

unambiguous mandates," notwithstanding that the statute was

adopted voluntarily.     Adams v. Boston, 461 Mass. 602, 609

(2012).   Because the town chose to adopt G. L. c. 32B, § 9E, the

plain language of that section mandates that the town contribute

more than fifty per cent of the premiums of "employees retired

from the service of the town."

    As stated, an "employee" within the meaning of G. L.

c. 32B, is defined as "any person in the service of a

governmental unit . . . who receives compensation for any such

service, whether such person is employed, appointed or elected

by popular vote, . . .    provided, however, that the duties of

such person require not less than [twenty] hours, regularly, in

the service of the governmental unit during the regular work

week of permanent or temporary employment."    G. L. c. 32B, § 2.

As a public school principal, Galenski held a position that

falls within this definition.    As an employee with more than

thirty years of creditable service, Galenski was eligible to

receive retirement benefits.    See G. L. c. 32, § 5 (1) (m); note
                                                                    10


6, supra.   Because she was a member of the town's group health

insurance plan while employed as the principal of Erving

Elementary School, Galenski was statutorily entitled to

continued group health insurance as a retiree.   See G. L.

c. 32B, § 9.   Cf.   Lexington Educ. Ass'n v. Lexington, 15 Mass.

App. Ct. 749, 752 (1983) (rejecting town's "self-imposed and

super-statutory" minimum hours requirement for eligibility for

health insurance benefits as inconsistent with statutory

definition of "employee").

    In describing contributions by a municipality to its

retirees' insurance premiums, G. L. c. 32B, § 9E, further

mandates that "[n]o governmental unit . . . shall provide

different subsidiary or additional rates to any group or class

within that unit."   Identical language appears in G. L. c. 32B,

§ 7A, which governs contributions to insurance premiums of

active employees.

    On the date of Galenski's retirement, the town's retirement

policy provided, in pertinent part:

         "For a retiree . . . to qualify for participation in
    the [t]own's group insurance . . . [t]he employee must
    qualify for county or teacher's retirement and must retire
    from the [town] after a minimum of ten (10) years of
    employment by the [t]own . . . , having been eligible for
    health insurance for all of the ten (10) years . . . .

            ". . .

         "An eligible retiree with less than ten (10) years of
    employment with the [town] may choose to continue health
                                                                     11


    insurance through the [t]own's carrier at [one hundred per
    cent] of the retiree's cost."

The requirement that a retiree "must retire from the [town]

after a minimum of ten (10) years of employment by the [t]own"

in order to receive contribution towards insurance premiums is

not consistent with G. L. c. 32B, § 9E.    The town's requirement

of a minimum term of service places retirees like Galenski into

a subclass of retirees who are not entitled to contribution to

their health insurance premiums, despite otherwise qualifying

for superannuation retirement benefits.

    "[A] municipality may not enact a bylaw, policy, or

regulation that is inconsistent with State law."    Cioch v.

Treasurer of Ludlow, 449 Mass. at 699.    The town's retirement

policy is inconsistent with G. L. c. 32B in two significant

respects and, accordingly, is invalid.    First, the retirement

policy establishes different insurance premium contribution

rates for different groups of employees, despite the "literal

mandate of equal treatment for all groups of employees with

respect to employer contributions toward insurance costs."     See

Swampscott Educ. Ass'n v. Swampscott, 391 Mass. 864, 867 (1984)

(interpreting identical language in G. L. c. 32B, § 7A [d],

which governs insurance premium contribution for active

employees, where "town has undertaken voluntarily to pay more

than [fifty per cent] of one group of employees' insurance
                                                                   12


costs").   Second, the retirement policy seeks to exempt the town

from contributing to any portion of the insurance premiums for

one group of employees, notwithstanding that the town has

adopted G. L. c. 32B, § 9E, which by its plain language

obligates the town to contribute more than fifty per cent of the

costs of that group's insurance premiums.

    Our interpretation of the clear statutory language is

consistent with the Legislature's manifest purpose in enacting

G. L. c. 32B, which is to provide group health insurance for

municipal employees.   See G. L. c. 32B, § 1.   The statute

provides local governments "with a volume of purchasing power

sufficient to assure that their employees will receive the

highest possible level of benefits at the lowest possible cost."

Connors v. Boston, 430 Mass. at 39, quoting 1967 Senate Doc.

No. 1174, at 4.   The town argues that its retirement policy

simply furthers the cost containment goals of G. L. c. 32B.

This argument is unavailing.   The purpose of the statute is to

create "a 'comprehensive scheme of coverage' for governmental

employees" by "gather[ing] them in large groups so as to effect

economies of scale" (citation omitted).     McDonald v. Town

Manager of Southbridge, 39 Mass. App. Ct. at 480.    The goal of

cost containment does not, however, permit the town to seek

further reduction of its costs through a policy that eliminates

its obligation to contribute to the insurance premiums of a
                                                                   13


certain subset of retirees.

      Invalidation of a town regulation is appropriate where "the

purpose of the statute cannot be achieved in the face of the

local by-law" (citation omitted).   Connors v. Boston, supra at

35.   The town's term of service policy is inconsistent with the

"comprehensive scheme of coverage" established by G. L. c. 32B,

because it treats retired employees differently based on their

years of service to the town, and precludes them from receiving

benefits to which they are statutorily entitled.   See McDonald

v. Town Manager of Southbridge, supra at 481.

      The town's reliance on Cioch v. Treasurer of Ludlow, 449

Mass. at 696-697, is misplaced.   In that case, we addressed the

validity of a municipality's policy requiring a retiree to have

been enrolled in a group health insurance plan while an active

employee in order to continue that coverage during retirement.

Id. at 696.   The plaintiff was a retiree who had been enrolled

in her husband's health insurance plan while she was an active

employee of a municipality.   Three years after her retirement,

when her husband retired, she sought to enroll in one of the

municipality's health insurance plans.   Id. at 692-693.   We

noted that the statute "accords municipalities substantial

latitude in the adoption of 'such rules and regulations, not

inconsistent with [G. L. c. 32B], as may be necessary for [its]

administration.'"   Id. at 697-698, quoting G. L. c. 32B, § 14.
                                                                   14


We upheld the municipality's policy because "[n]othing in the

plain language of G. L. c. 32B, §[] 9 or 16, requires a

municipality to permit a retiree who has not enrolled in a

municipal health insurance plan while employed, to enroll in a

municipal health insurance plan after she has retired, or

precludes it from doing so."    Cioch v. Treasurer of Ludlow,

supra at 698.   We concluded that, while a municipality

permissibly could limit enrollment to active employees, it

remained obligated by the statute to "provide[] for continued

coverage of those employees during their retirement."     Id. at

699.

       Finally, we reject the town's assertion that its "policy is

not unlike pension benefits that are calculated based on years

of service," and its suggestion that its policy furthers

reasonable cost containment efforts because it should not be

held "responsible for paying a significant portion of [an]

employee's health insurance premium in retirement [who had

worked for other municipalities]."9   To the contrary, the


       9
       The town also claims that its policy is a valid exercise
of its power under the Home Rule Amendment, which provides that
a town may "exercise any power or function which the general
court has power to confer upon it, which is not inconsistent
with the constitution or laws enacted by the general court."
Art. 89, § 6, of the Amendments to the Massachusetts
Constitution. Because Massachusetts has "the strongest type of
home rule," municipal action is presumed to be valid unless
preempted by State law. Connors v. Boston, 430 Mass. 31, 35
(1999). The town argues that its policy is not inconsistent
                                                                 15


Legislature was cognizant of the potential consequences to a

town which, because it has chosen to accept G. L. c. 32B, § 9E,

must, as the last employer in a retiree's long-term public

service career, contribute to the premiums of such retirees.

The Legislature enacted G. L. c. 32B, § 9A½, specifically to

address those concerns.    Where a retiree has served a number of

municipalities, G. L. c. 32B, § 9A½,10 creates a reimbursement

scheme between those employing municipalities, and allows the

municipality from which the employee retired to recover its

proportional share of contributions from other municipalities


with G. L. c. 32B, which establishes only a "sparse framework,"
and, therefore, that the Legislature did not intend to preempt
municipal action such as the town's retirement policy. Our
determination that the town's policy is in conflict with the
language and intent of G. L. c. 32B, §§ 9 and 9E, disposes of
this claim. Cf. Connors v. Boston, supra at 39-40, citing
Boston Gas Co. v. Newton, 425 Mass. 697, 699 (1997) (addressing
question of preemption, and holding that local executive order
expanding definition of dependent was inconsistent with language
and intent of G. L. c. 32B).
     10
          Pursuant to G. L. c. 32B, § 9A½,

          "Whenever a retired employee or beneficiary receives a
     healthcare premium contribution from a governmental unit in
     a case where a portion of the retiree's creditable service
     is attributable to service in [one] or more governmental
     units, the first governmental unit shall be reimbursed in
     full, in accordance with this paragraph, by the other
     governmental units for the portion of the premium
     contributions that corresponds to the percentage of the
     retiree's creditable service that is attributable to each
     governmental unit. The other governmental units shall be
     charged based on their own contribution rate or the
     contribution rate of the first employer, whichever is
     lower."
                                                                 16


where the retiree had been employed.

     The plain language of this provision supports our

interpretation of G. L. c. 32B, § 9E, as reflecting the

Legislature's intent that a municipality that has chosen to

adopt that section must contribute to the premiums of all of its

retirees, regardless whether, as active employees, their years

of creditable service were performed largely in other

municipalities.11   We give effect to all provisions of a statute,

which "must be viewed 'as a whole.'"   Wolfe v. Gormally, 440

Mass. 699, 704 (2004), quoting 2A N. Singer, Sutherland

Statutory Construction § 46.05, at 154 (6th ed. 2000).    The

town's interpretation of the statutory scheme is inconsistent

with G. L. c. 32B, § 9A½,, which reflects the Legislature's

understanding that the last employer in line will be required to

contribute to the insurance premiums of its retirees,

notwithstanding that the retiree may have spent a substantial

     11
       The town argues that, notwithstanding G. L. c. 32B,
§ 9A½, it should be permitted to exclude retirees who served the
town for fewer than ten years from its insurance premium
contributions, arguing, essentially, that G. L. c. 32B, § 9A½,
does not do enough to contain costs. The town contends that it
should be permitted to further reduce costs by limiting the
class of retirees eligible for premium contributions to those
employed by the town for longer periods of service. The town
notes, for example, that although it may seek reimbursement from
other municipalities under G. L. c. 32B, § 9A½, it first must
contribute to the premiums, and may seek reimbursement only the
following year. It notes also that it must seek reimbursement
based on the lower of the municipalities' rates of contribution.
Concerns that the cost containment measures established by the
statute are inadequate may be addressed to the Legislature.
                                                              17


portion of her career working for a different municipality.

                                   Judgment affirmed.
