January 23, 2020
                        January 23, 2020




                                                                    Supreme Court

                                                                    No. 2019-51-Appeal.
                                                                    (PC 15-4245)


                   Benjamin Zanni                :

                                           v.    :

               Town of Johnston.                 :




                   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 (401) 222-
                   3258 of any typographical or other formal errors in order that
                   corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2019-51-Appeal.
                                                                  (PC 15-4245)


              Benjamin Zanni                  :

                     v.                       :

            Town of Johnston.                 :


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

                                          OPINION

       Justice Goldberg, for the Court. This case came before the Court on November 7,

2019, pursuant to an order directing the parties to appear and show cause why the issues raised in

this appeal should not be summarily decided. The plaintiff, Benjamin Zanni (plaintiff), appeals

from the entry of summary judgment in the Superior Court in favor of the defendant, the Town

of Johnston (the town).1 After reviewing the parties’ memoranda and considering their oral

arguments, we are of the opinion that cause has not been shown and that this appeal may be

resolved without further briefing or argument. For the reasons set forth in this opinion, we

affirm the judgment of the Superior Court.

                                        Facts and Travel

       This case concerns an ordinance enacted by the Johnston Town Council (the town

council) in 1989, which established various benefits for certain town officials, and the quest by a

former member of that town council to collect those benefits. The plaintiff served on the town

council from 1981 until 1994.



1
  The plaintiff named the “Employment Retirement System of Rhode Island” as an interested
party in the case, but the town is the sole defendant in the case.
                                               -1-
       On April 10, 1989, the town passed and adopted Ordinance 767, entitled “Retirement

Credit Benefits.” In pertinent part, Ordinance 767 provided that “[e]very elected or appointed

full time paid official who has accumulated at least ten (10) years consecutive combined service

shall receive the following benefits upon retirement at age 60[.]” The ordinance also provided

that an official covered by the ordinance would receive whatever medical and dental insurance

plans that were provided to regular town employees, and that the ordinance “shall take effect

upon passage.” It was short-lived.

       In 1993, Ordinance 767 was repealed by Ordinance 913, which was also entitled

“Retirement Credit Benefits.” Ordinance 913 provided:

               “Ordinance numbered 767 is repealed in its entirety. Only those
               elected or full time appointed officials who have already vested
               their benefits under Ordinance 767 will be allowed to receive
               them.

               “This ordinance shall take [e]ffect upon passage.”

In 1994, plaintiff entered a plea of guilty in federal court to one felony count of “Extortion Under

Color of Official Right” for acts of bribery while in office, from 1991 to 1994. He was

sentenced to thirty-three months in prison and fined $20,000.

       Beginning in the early 2000s, plaintiff made several demands on the town for the health

benefits set forth in Ordinance 767, based on his belief that, as of 1991, his entitlement to those

benefits had vested. The town consistently denied those requests on the grounds that, as a town

council member, he was not a full-time official or employee and, additionally, because of his

misconduct in office.

       On September 30, 2015, plaintiff filed suit, alleging claims of governmental promissory

estoppel and deprivation of property rights, and seeking compensatory damages, costs of suit,

and attorneys’ fees. The plaintiff also sought a declaratory judgment. On November 10, 2015,

                                               -2-
the town filed a petition for removal to federal court; plaintiff filed an amended complaint in the

United States District Court for the District of Rhode Island on November 16, 2015. The action

was remanded to the Superior Court from the District Court on November 24, 2015.

       On May 29, 2018, the town moved for summary judgment in the Superior Court on the

ground that, as a matter of statutory interpretation, Ordinance 767 operated prospectively rather

than retroactively, and, therefore, plaintiff was not eligible for the benefits he claimed he was

entitled to. The town also argued that a plain reading of Ordinance 767 revealed that an

individual must be a full-time paid official―either appointed or elected―to be eligible under the

ordinance, and plaintiff was not a full-time official.

       The plaintiff opposed the town’s motion and also moved for declaratory judgment.2 He

argued that Ordinance 767 was vague and ambiguous, and thus required the court to determine

the legislative intent behind the enactment. He argued that the members of the town council and

other elected officials were the intended beneficiaries of Ordinance 767, whether or not they

were full-time employees of the town, and that any interpretation that does not include them as

beneficiaries would constitute an absurd result. The plaintiff also argued that Ordinance 767 is

remedial in nature, as opposed to creating a substantive legal right, and, therefore, must be

applied retroactively and not prospectively.3 Finally, plaintiff argued that, under the state Public



2
  The parties ultimately agreed that the issue of the declaratory judgment was no longer
applicable in the case. Therefore, that issue is not before us.
3
  We note that plaintiff submitted an affidavit to the lower court on September 4, 2018, opining
on the legislative intent behind Ordinance 767. He asserted, under oath, that he presided over the
promulgation of Ordinance 767, that Ordinance 767 was intended to benefit town council
officials, and that it was the intent of the town council that Ordinance 767 would be applied
retroactively. In our de novo review, we decline to accord any weight to this self-serving
affidavit.



                                                 -3-
Employee Pension Revocation and Reduction Act, chapter 10.1 of title 36 of the general laws,

the town lacked standing to revoke or reduce his benefits based on his dishonorable service. The

plaintiff also moved for declaratory judgment and demanded judgment against the town with

respect to the rights and obligations of the parties arising out of Ordinance 767.

       On September 19, 2018, the trial justice granted the town’s motion for summary

judgment. In doing so, the trial justice decided that Ordinance 767 created a substantive rather

than remedial right, and that Ordinance 767 therefore applied prospectively and not retroactively.

As such, because plaintiff did not accrue the ten years of consecutive service component

necessary to be eligible for benefits under Ordinance 767, there was no genuine issue of material

fact and plaintiff was not entitled to benefits under the ordinance. The plaintiff appealed.

                                       Standard of Review

       “‘This Court reviews a grant of summary judgment de novo.’” Sullo v. Greenberg, 68

A.3d 404, 406 (R.I. 2013) (brackets omitted) (quoting Sacco v. Cranston School Department, 53

A.3d 147, 149-50 (R.I. 2012)). “Examining the case from the vantage point of the trial justice

who passed on the motion for summary judgment, ‘we view the evidence in the light most

favorable to the nonmoving party, and if we conclude that there are no genuine issues of material

fact and that the moving party is entitled to judgment as a matter of law, we will affirm the

judgment.’” Id. at 406-07 (brackets omitted) (quoting Sacco, 53 A.3d at 150). “Although

summary judgment is recognized as an extreme remedy, * * * to avoid summary judgment the

burden is on the nonmoving party to produce competent evidence that ‘proves the existence of a

disputed issue of material fact.’” Id. at 407 (brackets omitted) (quoting Sacco, 53 A.3d at 150;

citing Mutual Development Corporation v. Ward Fisher & Company, LLP, 47 A.3d 319, 323

(R.I. 2012)).



                                                -4-
       Furthermore, “we review issues of statutory interpretation de novo.” Reynolds v. Town of

Jamestown, 45 A.3d 537, 541 (R.I. 2012). “[W]hen the language of a statute is clear and

unambiguous, this Court must interpret the statute literally and must give the words of the statute

their plain and ordinary meanings.” Alessi v. Bowen Court Condominium, 44 A.3d 736, 740 (R.I.

2012) (quoting Waterman v. Caprio, 983 A.2d 841, 844 (R.I. 2009)). Finally, we note that “this

Court can affirm the Superior Court’s judgment on grounds other than those relied upon by the

trial justice.” Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010).

                                             Analysis

       On appeal, plaintiff advances several arguments in support of his contention that the

town’s motion for summary judgment was improperly granted. The plaintiff argues that, as a

matter of statutory interpretation, the trial justice should have considered Ordinance 913 to

determine the legislative intent of the town in enacting Ordinance 767 and should have then

concluded that the ordinance was intended to be applied retroactively. The plaintiff also argues

that the trial justice erred in finding that Ordinance 767 applied prospectively rather than

retroactively, because, according to plaintiff, the ordinance is remedial in nature as opposed to

creating a substantive legal right.

       The town contends that the trial justice properly refused to consider Ordinance 913

because, the town argues, there is no relevant caselaw suggesting that a repealing ordinance is

controlling or even relevant to a determination of the legislative intent behind the repealed

ordinance. Rather, the town argues, when legislation does not specifically state whether it

applies retroactively or prospectively, the test is simply whether the ordinance is remedial in

nature or creates a substantive legal right. The town contends that legislation that is remedial in

nature is to be applied retroactively; and, where legislation creates a substantive legal right, as



                                               -5-
Ordinance 767 does, the legislative intent was to apply the ordinance on a prospective basis.

The town argues that the trial justice correctly found that Ordinance 767 applied prospectively

because it created a substantive legal right―namely, a vested right to medical benefits―rather

than being a remedial measure.

       The town alternatively argues that, however Ordinance 767 is to be applied, plaintiff was

not covered by the ordinance because he was never a “full time paid official” with the town, as

required under the ordinance. Finally, the town argues that it had the right to exercise discretion

in denying plaintiff benefits based on his dishonorable service to the town in relation to his 1994

felony conviction for extortion under federal law.

                  The Clear and Unambiguous Language of Ordinance 767

       We begin our analysis by examining the language of Ordinance 767. Although the trial

justice decided the motion for summary judgment on different grounds, we are of the opinion

that, based on the clear and unambiguous language of Ordinance 767, there is no genuine issue

of material fact as to whether plaintiff is entitled to benefits under the ordinance, and therefore

summary judgment was properly granted. Ordinance 767 clearly and unambiguously states that

only “full time paid official[s]” may receive benefits under the ordinance. (Emphasis added.) A

“full-time” employee is “[o]ne who is hired to work at least the normal number of hours in a

workweek as defined by an employer or a statute, usu[ally] 35 to 40 hours.” Black’s Law

Dictionary 662 (11th ed. 2019).4



4
  An example of the number of hours in the workweek of a full-time employee is forty hours.
See G.L. 1956 § 28-12-4.1(a) (providing Rhode Island’s overtime-pay laws, which state, in part:
“Except as otherwise provided in this chapter, no employer shall employ any employee for a
workweek longer than forty (40) hours unless the employee is compensated at a rate of one and
one-half (1 1/2) times the regular rate at which he or she is employed for all hours worked in
excess of forty (40) hours per week”).


                                               -6-
         Clearly, plaintiff’s employment as a member of the town council cannot be categorized as

“full-time” employment. The Charter of the Town of Johnston and its provisions related to the

duties of the town council make no provision for a standard number of hours of working time.

Rather, the Charter merely provides, in part, as follows, in Article III:

                “Sec. 3-7 Meetings.

                “The first meeting of each newly elected town council shall be
                held following the swearing into office of its members pursuant to
                section 2-4 of this Charter. Thereafter the town council shall meet
                regularly at such time and at such place as may be prescribed by
                its rules but not less frequently than once each month.” (Emphasis
                added.)

Therefore, rather than providing a normal number of hours in a workweek for members of the

town council, the Charter merely provides a minimum number of meetings to be held each

month.

         Furthermore, the town submitted an affidavit of Vincent Baccari, who served as the

Town Clerk for the town. Mr. Baccari averred that he was “aware of the duties, responsibilities,

composition, and characterization of employment of the Johnston Town Council since 1981” and

that, since 1981, members of the town council have been considered part-time elected officials

and employees. He also declared that, since 1981, members of the town council have been

compensated as part-time employees and worked, on average, less than thirty hours per week.5

Finally, he stated that: “Benjamin Zanni’s employment with the Town of Johnston as a Town

Councilman from 1981–1994 was considered part-time employment.”

         Ordinance 767 clearly and unambiguously states that only “full time paid official[s]” may



5
  Section 3-5 of the Charter provides that: “The annual salary of members of the town council
shall be five hundred dollars except that of the president of the town council who shall receive
annually seven hundred and fifty dollars.”


                                                -7-
receive benefits under the ordinance. The record in this case unequivocally establishes that

plaintiff was not a “full time” official in his capacity as a member of the town council and that

he, therefore, was not eligible to receive benefits under Ordinance 767.6 Pursuant to the town

Charter, he received only $500 per year as compensation as a councilmember. Because the clear

and unambiguous language of Ordinance 767 indicates that plaintiff was not eligible to receive

benefits under the ordinance, we affirm the grant of summary judgment, but we do so on grounds

other than those relied upon by the trial justice.

                            Prospective Application of Ordinance 767

       Nonetheless, we deem it appropriate to address plaintiff’s argument that Ordinance 767

was intended to be applied retroactively from the time it was enacted, rather than prospectively.

Although he relies on this Court’s decision in Prew v. Employee Retirement System of City of

Providence, 139 A.3d 556 (R.I. 2016), to advance his argument that Ordinance 767 is remedial

in nature and, therefore, is to be applied retroactively, plaintiff’s reliance on Prew is misplaced.

       “When interpreting an ordinance, we employ the same rules of construction that we apply

when interpreting statutes.” Ruggiero v. City of Providence, 893 A.2d 235, 237 (R.I. 2006). “In

general, statutes and their amendments are presumed to operate prospectively unless it appears

by clear, strong language or by necessary implication that the Legislature intended to give the

statute retroactive effect.” VanMarter v. Royal Indemnity Co., 556 A.2d 41, 44 (R.I. 1989).

When a statute or ordinance “lacks the requisite specificity or necessary implication” regarding

retroactive application, the distinction between a statute that is remedial in nature and one that

creates a substantive legal right guides the analysis. Lawrence v. Anheuser-Busch, Inc., 523 A.2d



6
  We also note that Ordinance 767 mandates that beneficiaries receive their benefits only “upon
retirement at age 60[.]” The plaintiff did not retire from service and did not reach the age of
sixty until 2010, roughly seventeen years after Ordinance 767 was repealed.
                                                 -8-
864, 869 (R.I. 1987). A statute is remedial or procedural in nature if it “neither enlarges nor

impairs substantive rights but prescribes the methods and procedures for enforcing such rights”;

in that event, “it may be construed to apply retroactively.” Id. (quoting Norton v. Paolino, 113

R.I. 728, 733, 327 A.2d 275, 278 (1974)).          “If, however, it creates, defines, or regulates

substantive legal rights, it must be construed to operate prospectively.” Id.

       In the case before us, Ordinance 767 simply declared that it shall take effect upon passage

and does not include any express language or necessary implication that the town intended for it

to apply retroactively. We therefore look to whether the enactment was remedial in nature, or if

it created substantive legal rights. Clearly, Ordinance 767 sought to create a legal entitlement to

retirement benefits for appointed or elected town officials that did not previously exist, and,

therefore, the enactment cannot be deemed a remedial ordinance.

       When Ordinance 767 took effect in 1989, plaintiff was serving as a member of the town

council. On December 27, 1993, the ordinance was repealed, apparently before anyone in town

employ became entitled to the benefits. Therefore, from the time Ordinance 767 was enacted

until it was repealed by Ordinance 913, plaintiff had accrued, at most, four years of consecutive

service as a member of the town council, six years short of the ten years required to vest. Thus,

even setting aside the analysis of the plain language of Ordinance 767 mandating full-time

service, plaintiff is not eligible for the benefits he seeks under Ordinance 767.

       We are of the opinion that Ordinance 767 sought to create a right to health benefits that

did not previously exist, and it did not provide any type of remedy as plaintiff suggests. The trial

justice reached the same conclusion in her decision, and we affirm her decision on those

grounds.




                                                -9-
                                           Conclusion

       For the reasons set forth in this opinion, we affirm the Superior Court’s grant of summary

judgment in favor of the town; but we do so primarily on grounds other than those relied upon by

the trial justice. The record in this case may be remanded to the Superior Court.


Justice Flaherty did not participate.




                                              - 10 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Benjamin Zanni v. Town of Johnston.
                                     No. 2019-51-Appeal.
Case Number
                                     (PC 15-4245)
Date Opinion Filed                   January 23, 2020

Justices                             Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Melissa A. Long
                                     For Plaintiff:

                                     Mark A. Fay, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Ryan D. Stys, Esq.




SU‐CMS‐02A (revised June 2016)
