STATE OF RHODE ISLAND

KENT, SC.

SUPERIOR COURT

Girard Bouchard, in his capacity as

President of the Board of Directors of
The Central Coventry Fire District,

:
:
:
:
Plaintiff,
:
:
v.
:
:
Central Coventry Fire District,
:
:
Defendant.
:
__________________________________________:

K.B. No. 12-1150

MEMORANDUM OF LAW IN SUPPORT OF

LOCAL 3372S RESPONSE TO
DEFENDANTS REQUEST FOR DECLARATORY RELIEF
Coventry Professional Firefighters, Local 3372 (the Union) hereby files the following
memorandum in response to the Central Coventry Fire Districts Request for Declaratory Relief.
Background
The instant case was filed in 2012 by the then-President of the Board of Directors of the
Central Coventry Fire District, requesting this Court place the Central Coventry Fire District
(CCFD) in receivership. The Court appointed a Special Master who was authorized to take
possession and charge of all the assets, effects, property, and business of the CCFD. A stay was
also ordered by the Court that prevented new lawsuits, the continuation of existing lawsuits and
collection activities brought against the CCFD by creditors and others.
In May, 2014, the General Assembly amended the Fiscal Stability Act, R.I.G.L. 45-9-1
et seq., to prohibit judicial receiverships of fire districts. Thereafter, the matter was placed into
State-directed receivership, and, ultimately, Chapter 9 bankruptcy.
During Chapter 9 bankruptcy proceedings, the State-appointed Receiver, Mark A.
Pfeiffer, engaged in negotiations with the Union. The Receiver and Union executed two
1

collective bargaining agreements (CBAs), one covering the period April 1, 2015 through
August 31, 2015 (which has expired) and one governing the period September 1, 2015 through
August 31, 2020 (which is still in effect).
Subsequent to executing the aforementioned CBAs, the bankruptcy petition was
dismissed. The District has been complying with the CBA (absent a few alleged violations that
are currently in the grievance stage).
On October 9, 2015, CCFD filed a motion to amend the pending receivership petition to
add three counts for declaratory relief. The Court orally approved the motion, although no order
was entered. In addition, the Amended Complaint has not been formally filed with the Court.
However, at a conference, the parties agreed to brief three issues:
1. What is the obligation of the Board of Directors as to the terms of either of the
two (2) CBAs negotiated between the Union and the State Receiver?
2. Must the taxpayers of the CCFD fund, through the raising of taxes, the valid
collective bargaining agreement entered into by the Board of Directors?
3. Does the Charter, by virtue of the taxing authority, give the taxpayers the right
to determine the mechanism of how fire suppression and EMS services are
provided to the CCFD?
Relevant Charter and By-Law Provisions
CHARTER
Sec. 3

ANNUAL MEETINGS OF THE CONSOLIDATED FIRE DISTRICT

(b)

[T]he district shall hold an annual meeting for the purposes of: (1) election a
Board of Directors (2) authorizing the assessment of all the taxable personal and
real property of the District; (3) authorizing the collection of taxes, as further set
forth in Section 6 hereunder; (4) authorizing an annual budget to provide for the
purchase and maintenance of equipment, apparatus, real and personal property, the
payment of wages and salaries, and for such other expenditures deemed necessary
by the qualified voters of the District; and (5) for such other lawful purposes
deemed necessary and proper by either the Board of Directors or qualified voters
of the district.
2

Sec. 6

DUTIES OF THE BOARD OF DIRECTORS

(b) The foregoing list of duties shall not be deemed limiting and the directors shall
have all necessary authority to operate and conduct the business of the District as
necessary, all within the bounds of the laws of the State of Rhode Island.

Sec.7

TAXING AUTHORITY-TAX ASSESSOR

(a) Said qualified voters at any of their legal meetings shall have the power to order
such taxes and provide for the assessing and collecting of the same on the taxable
inhabitants and property in said district as they shall deem necessary for purchasing
fire engines, and all other implements and apparatus for the extinguishing of fire;
for paying the salaries of district officers and employees, as well as the members
of the rescue unit known as Central Coventry Rescue.1
(b) The qualified voters of the Central Coventry Fire District are also authorized to
raise money through taxes to purchase the necessary vehicles and equipment to
operate and maintain a rescue unit to be known as the Central Coventry Rescue.
Sec. 11

BY-LAWS
The qualified voters of said district may enact all by-laws by them adjudged
necessary and expedient for carrying the provisions of this act into effect, provided
the same be not in violation of or repugnant to the laws of this state.
The qualified voters may change any provision of the by-laws at any annual or
special meeting, provided the proposed change has been notified in the call of the
meeting.

Sec. 14

PRESERVATION OF RIGHTS UNDER EXISTING LABOR CONTRACTS

In accordance with the provision of Section 19.1 of Chapter 7, Title 28 of the Rhode
Island General Laws, this act of consolidation shall not impair the provisions of any
existing labor contracts for persons employed by any of the individual fire districts.
Notwithstanding the consolidation, the labor contracts shall continue in full force
and effect until their termination dates or until otherwise agreed by the parties or
their legal successors.

Emphases added.

The Charter originally provided for paying the salaries of district officers and firemen, but
was amended in 2006 to replace firemen with employees, as well as the members of the rescue
unit known as Central Coventry Rescue.
3

BY-LAWS OF THE CENTRAL COVENTRY FIRE DISTRICT

ARTICLE II- BOARD OF DIRECTORS
SECTION 1. Duties of the Board of Directors
A. The Board of Directors shall develop an annual budget, with information
provided by the Treasurer and the Chief, and shall present said budget at the
annual meeting, or a special meeting if necessary, for approval by the eligible
voters present.

G. The Board of Directors shall determine the duties, salaries or wages, benefits,
and conditions of employment of all appointees and/or employees, in addition to
the duties listed in the District charter and by-laws.
H. The Board of Directors shall be responsible for the negotiation of all labor
contracts; shall have final approval of said contract.
Emphases added.
Argument
I.

THIS COURT SHOULD REFRAIN FROM ISSUING DECLARATORY RELIEF

A. The Taxpayers Lack Standing and Are Unrepresented in this Case
It is well-settled that the decision to grant a remedy under the Declaratory Judgments

Act is purely discretionary. Employers' Fire Ins. Co. v. Beals, 103 R.I. 623, 628 (1968).
Further, [w]hen declaratory relief is sought, all persons shall be made parties who have or claim
any interest which would be affected by the declaration, and no declaration shall prejudice the
rights of persons not parties to the proceeding. See R.I.G.L. 9-30-11. The Union submits that
there are two questions that need to be addressed by this Court prior to even considering issuing
declaratory relief. First, do the taxpayers have standing to request declaratory relief? Second,
are they even parties in this case?
As CCFD properly points out in its brief, standing in a taxpayers suit is established by
ascertaining whether the person whose standing is challenged alleges that the action in dispute
4

will cause him or her an injury in fact, economic or otherwise. Rosen v. Restrepo, 380 A.2d
960, 962 (R.I. 1977). In Rhode Island Ophthalmological Society v. Cannon, 113 R.I. 16, 22, 317
A.2d 124, 128 (1974), the Rhode Island Supreme Court articulated the applicable test. To satisfy
the standing requirement, a plaintiff must allege that the challenged action has caused him
injury in fact, economic or otherwise. Id. (quoting Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). Prior
cases have provided some depth to this seemingly sparse prescription, recognizing that plaintiff's
alleged injury must be a legally cognizable and protected interest that is concrete and
particularized * * * and * * * actual or imminent, not conjectural or hypothetical. McKenna,
874 A.2d at 226 (quoting Pontbriand v. Sundlun, 699 A.2d 856, 862 (R.I.1997)).
In Watson v. Fox, 44 A.3d 130, 135-38 (R.I. 2012), the Rhode Island Supreme Court
found that Plaintiffs, led by Robert Watson, in his capacity as a taxpayer, lacked standing to seek
declaratory relief. [In] conducting our analysis in this case, we do not write on a blank slate; the
necessity of a concrete injury has been the subject of particular emphasis in this jurisdiction.
[M]ere interest in a problem, no matter how longstanding the interest and no matter how
qualified the organization is in evaluating the problem, is not sufficient by itself to render the
organization adversely affected or aggrieved. Blackstone Valley Chamber of Commerce v.
Public Utilities Commission, 452 A.2d 931, 933 (R.I.1982) (quoting Sierra Club v. Morton, 405
U.S. 727, 739 (1972)). The Supreme Court has held fast to the notion that a plaintiff's injury
must be particularized and that he must demonstrate that he has a stake in the outcome that
distinguishes his claims from the claims of the public at large. Bowen v. Mollis, 945 A.2d 314,
317 (R.I. 2008); see also Blackstone Valley Chamber of Commerce, 452 A.2d at 933; accord
Frothingham v. Mellon, 262 U.S. 447, 487 (1923). In this jurisdiction, generalized claims

alleging purely public harm are an insufficient basis for sustaining a private lawsuit. See In re
Review of Proposed Town of New Shoreham Project, 19 A.3d 1226, 122729 (R.I.2011);
Berberian v. Solomon, 122 R.I. 259, 261 (1979); McCarthy v. McAloon, 79 R.I. 55, 62 (1951).
In fact, in Watson, the Court specifically held that the Declaratory Judgments Act was
not intended to serve as a forum for the determination of abstract questions or the rendering of
advisory opinions. Id., McKenna, 874 A.2d at 227 (quoting Lamb v. Perry, 101 R.I. 538, 542,
(1967)).
The Court concluded:
We have little trouble concluding, and plaintiff nearly concedes, that if this Court's
longstanding principles of standing are applied to the circumstances of this case,
then his suit must fail. The plaintiff sought a declaratory judgment as a private
taxpayer, eschewing his official position as House minority leader, and he asked
the Superior Court to rule whether the General Assembly had expended public
money in a manner that conflicts with the requirements of the Rhode Island
Constitution. In our opinion, plaintiff has complained of no concrete,
particularized harm; to the degree he can point to any injury, it is the same,
indistinguishable, generalized wrong allegedly suffered by the public at large.
See Frothingham, 262 U.S. at 487, 43 S.Ct. 597 (describing the plaintiff's claim to
Treasury funds as an interest shared with millions of others that is minute and
indeterminable). Moreover, plaintiff has taken pains to assure this Court that he
seeks only prospective, declaratory reliefor as the motion justice cogently
described it, a shot across the bowto discourage the General Assembly from
appropriating grants according to its past practices during future budget battles.
Plainly, plaintiff is attempting to use the Uniform Declaratory Judgments Act
(G.L.1956 chapter 30 of title 9) to secure an advisory opinion that relates to
hypothetical future conduct of the General Assembly. See McKenna, 874 A.2d at
226. We are resolute that this Court lacks the constitutional authority to provide
such a ruling. See In re Advisory Opinion (Chief Justice), 507 A.2d at 131819.
Indeed, plaintiff has been unable to evince any particularized injury that would
remove this case from the realm of pure abstraction, and thus the relief that he seeks
is really an advisory opinion cloaked in the garb of a request for declaratory
relief.
Emphasis added. This is precisely what CCFD seeks here. There has been no assertion that the
taxpayers have suffered a particularized injury. Rather, just as in Watson, CCFD is attempting

to use the Declaratory Judgment Act to secure an advisory opinion that relates to future conduct.
The Supreme Court has declined to find standing in such a situation.
Perhaps having read the proverbial tea leaves, plaintiff zealously urges us at length
to abandon our long-standing jurisprudence and join a number of other states that
do recognize so-called taxpayer standing. See, e.g., Fergus v. Russel, 270 Ill. 304,
110 N.E. 130 (1915); Myers v. *138 Nebraska Investment Council, 272 Neb. 669,
724 N.W.2d 776 (2006); Vette v. Childers, 102 Okla. 140, 228 P. 145 (1924). After
reviewing this Court's precedent and considering the decisions of other
jurisdictions, we are not persuaded that such a radical departure is appropriate. First,
all the cases cited by plaintiff to support this argument are factually inapt. In all
those matters, the complaining party sought either injunctive relief to prevent public
money from being expended or the disgorgement of money that had been dispersed
in an unconstitutional manner. See, e.g., Fergus, 110 N.E. at 133 (action seeking
injunctive relief); Myers, 724 N.W.2d at 786 (action seeking disgorgement and
repayment of funds); Vette, 228 P. at 145 (action seeking injunctive relief). Here,
plaintiff did not seek injunctive relief and he specifically has disavowed any
intention of pursuing repayment of any of the money he contends the General
Assembly granted in an unconstitutional way. Moreover, in our opinion, this
Court's long-standing jurisprudenceperhaps to a greater degree than that
of some other jurisdictionshas had a discernable focus on the requirement
of concrete and particularized harm. See Bowen, 945 A.2d at 317; McKenna,
874 A.2d at 22627; Pontbriand, 699 A.2d at 862; Burns v. Sundlun, 617 A.2d 114,
116 (R.I.1992). We will not depart from that precedent based on the facts before us
here.
Id. at 138 (Emphasis added).
Second, even if the taxpayers have standing to seek declaratory relief from this Court, it
is not clear that the taxpayers are even parties to this action. Attorney David DAgostino, from
Gorham & Gorham, Inc., filed the Memorandum in Support of the Central Coventry Fire
Districts Request for Declaratory Relief. However, he signed his name as Attorney and
Solicitor for the Central Coventry Fire District Board of Directors. It is unclear whether he
represents both the Fire District and the Board of Directors. Or whether the Board of Directors is
purporting to act on behalf of the Fire District. If so, who is acting on behalf of the taxpayers, if
anyone? To the extent Attorney DAgostino represents only one of the entities, the other entity
should be present and represented. See. R.I.G.L. 9-30-11.
7

In In re City of Warwick, the Supreme Court held that the Plaintiffs failure to join all
nine city council members as parties to the lawsuit was fatal to their declaratory-judgment action.
A court may not assume subject-matter jurisdiction over a declaratory-judgment action when a
plaintiff fails to join all those necessary and indispensable parties who have an actual and
essential interest that would be affected by the declaration. In re City of Warwick, 97 R.I. 294,
296 (1964). In In re City of Warwick, the mayor sought a declaration about whether certain
provisions of Warwick's municipal charter governed the manner in which members of three local
boards were to be elected. Id. at 295-96. The Court concluded that the mayor's failure to join all
members of these boards meant that any declaratory judgment issued by the court would have no
binding effect on the absent board members, thereby eviscerating the essential termination-ofcontroversies purpose of such an action. Id. at 296-97. The Court decided that it would neither
excuse nonjoinder nor allow the appearance of fewer than all board members to constitute
representation of all the board members who had an interest in that controversy. Id. at 298; see
also Thompson v. Town Council of Westerly, 487 A.2d 498, 500 (R.I. 1985) (dismissing for lack
of jurisdiction because the plaintiffs' failure to join necessary parties meant judgment would not
be binding on all persons who had an interest in the dispute).
The petitioner argued that joinder of the board members was not here required because
the city solicitor who appeared in his behalf under art. 84 of the charter is the legal advisor of
all municipal officers, departments and agencies. Stated otherwise, petitioner argue[d] that the
city solicitor appeared not only on his behalf but also as the attorney for board members whose
ouster he sought. That contention is obviously without merit, it being fundamental that an
attorney cannot in such circumstances represent parties having adverse interests. Id. at 289,
citing Nelson v. Streeter, 65 R.I. 13, 19.

Here, too, CCFD argues that the taxpayers, not the Board of Directors, have the sole and
final determination of how fire suppression and EMS services are provided to CCFD, and that
only taxpayers, not the Board of Directors, may approve a collective bargaining agreement. The
Board of Directors and the taxpayers thus have adverse interests. Each should be represented.
B. The Matter Is Not Ripe For Decision Because There Has Been No Vote By The
Taxpayers To Reject The CBAs Or Establish An Alternative Means Of Providing
Services To The District.
As CCFD2 recognizes, it is axiomatic that a declaratory judgment action may not be
used for the determination of abstract questions or the rendering of advisory opinions, nor does it
license litigants to fish in judicial ponds for legal advice. Sullivan, 703 A.2d at 751 (emphasis
added). However, this is exactly what CCFD seeks to do. It seeks a declaration that the
taxpayers of CCFD are not required to fund, through the raising of taxes, otherwise valid CBAs
entered into by the Board of Directors and that the Board of Directors are limited in their [sic]
authority to execute multi-year collective bargaining agreements. In short, it asks for a
declaration that if the CBAs are found to be valid, and if the taxpayers believe it would be in the
Districts best interest to terminate qualified firefighters and emergency medical technicians,
discontinue professional fire prevention services and utilize a for-profit ambulance company to
provide medical services to the residents, it could violate the CBA without repercussions. As
noted above, it is not clear whether the taxpayers are even represented in this case.3 But, even if

It is unclear whether the memoranda was filed on behalf of CCFD, the taxpayers or the Board
of Directors. However, the Union will refer to the claims made in the Memorandum as made by
CCFD.
3
As CCFD repeatedly points out, the organization and operation of a fire district is very different
than that of a municipality. The power to tax belongs to the people, not the Board. Accordingly,
if this Court is to exercise its discretion by issuing a declaration as to the rights of the taxpayers,
juxtaposed against the rights and powers of the Board, those taxpayers should be represented.
Presumably, the taxpayers would have to appear individually or appoint or elect a person or
persons to act on their behalf. This has not occurred.
9

they are, there is no evidence that the taxpayers even want to engage in the dangerous exercise of
seeking to discontinue fire prevention services and hiring for-profit ambulance companies.4
Perhaps, after over three years of litigation, the taxpayers are content with the current five-year
CBA. Perhaps, instead of paying lawyers to engage in five separate interest arbitration
proceedings (which could yield better benefits for the Union and higher costs for the taxpayers),
the taxpayers would rather comply with the current CBA. Because there has been no indication
that the taxpayers wish to void the current CBA in favor of interest arbitrations proceedings, or
terminate the employment of its remaining firefighters/EMTs,5 it is not necessary for this Court
to make a determination as to whether they could.6
II.

IF THE COURT IS INCLINED TO ISSUE DECLARATORY RELIEF, IT

SHOULD MAKE THE FOLLOWING DECLARATIONS
A. The Two CBAs Negotiated Between The Union And The State Receiver Are
Binding On The District.
At the outset, there can be no dispute that the Receiver had the power to negotiate a

collective bargaining agreement with the Union on behalf of the District. CCFD does not dispute
this. See Memorandum of Law in Support of Central Coventry Fire Districts Request for
Declaratory Relief (Memo) at pp. 7-8. Rather, CCFD asserts that the CBA should not have
been approved because there is no proof that the fire districts financial resources and revenues
are, and will continue to be, adequate to support such collective bargaining agreement without a

Admittedly, the taxpayers voted on three occasions back in 2014 not to approve a budget
adequate to fund the existing CBA. However, the last budget (which provides for the funding of
the current CBA) was approved by the taxpayers.
5
Further, because there has been no affirmative action by the taxpayers, as aforesaid, they have
suffered no particularized injury.
6
Moreover, the Union is unaware of any vote taken by the Board of Directors to set aside the
five-year contract.
10

detrimental impact on the provision of municipal or fire district services. Emphasis added.
CCFDs unsupported claims should be rejected by this Court for a number of reasons. First,
overwhelming evidence, which includes a letter directly from the Acting Director of the
Department of Revenue, shows that both the Receiver and the Director believed the CBA would
provide a significant benefit to the District. See Memo, Exhibit 3 at p. 2. It was the proposed
actions of the Board of Directors, the Town, and Rep. Patricia Morgan that would have a
detrimental impact on the provision of municipal or fire district services. Id.
CCFD states that neither CBA was supported by Receiver Pfeiffer or Director Sullivan
Memo at 7. The statement lacks support in the record. Both the Receiver and Director Sullivan
negotiated the CBA. The CBA was executed and signed. The excerpts from Exhibit 7 actually
support the viability and validity of the CBAs. Director Sullivan writes that the Plan, which
includes the CBA,
could successfully restructure CCFDs financial affairs and restore the District to
fiscal stability but for the fact that the Plan has been and continues to be vigorously
opposed by the Board and the Town. As you have reported to me and as I have
personally observed, their primary opposition to the Plan is the model under which
fire and rescue services will continue to be delivered in the District. The District
has a collective bargaining agreement with the International Association of
Firefighter, Local 3372 (Local 3372). As part of the Chapter 9 proceedings and
consistent with the requirements of law you and labor counsel negotiated with the
union in good faith and reached an agreement ... [that] would achieve $13.9
million of savings for the District over the five-year term of the Plan.
Notwithstanding those negotiated savings that would provide a significant benefit
to the District, the Board, the Town and an elected representative in the community
have continued to insist that the Plan not include the current union model for
delivery of fire and rescue services but instead include a model that utilizes
volunteer and/or private fire and rescue services.
Emphasis added.
Director Sullivan goes on to cite examples of the strident nature of this opposition to
Union-supplied services. As the Director makes abundantly clear, the obstructionism of the

11

CCFD Board and the Town, as well as Rep. Patricia Morgan, who clearly have political reasons
for opposing the successful negotiation of a CBA, was the sole impediment to the successful
implementation of the Plan. The State left the District with an economically viable and executed
collective bargaining agreement which would return CCFD to fiscal stability. Due to anti-union
animus, certain members of the Board want this Court to declare the CBA invalid. However, the
fact that part of the Board may have had a philosophical objection to the contract 7 does not make
it financially unviable. Director Sullivan notes that a 2% tax increase would be enough to fund
the five-year plan. However, that five-year plan includes payments the District is no longer
responsible for. For example, the CCFD 5 Year Financial Projects, attached hereto as Exhibit A,
provides payments to a Fiscal Advisor over a five-year period and payments to bankruptcy
counsel over a five-year period. Since the receivership has ended, these payments are no longer
necessary. Further, the 5- year plan provides for the payment of claims for all creditors,
including back-pay for union members and retirees. While that amount will eventually have to
be paid or compromised, it need not be paid within a five-year period. By removing the
payments provided for under the Plan outside of the CBA, it is likely no tax increase would be
required. But, even assuming a 2% tax increase was required, CCFD has provided no evidence
that its taxpayers would be unable to afford the increase.
Moreover, while Director Sullivan may have had reservations about whether the State
could force the District to fund the collective bargaining agreement in years two through five of
the Plan, there is no dispute that the taxpayers on their own can decide to fund the contract or
not. If the taxpayers choose to adopt a budget that is significantly lower than required to fund

Although, again, there is no indication that the matter has been discussed or voted on by the
Board.
12

the CBA,8 their options are to seek concessions from the Union, or be subject to civil liability for
breach of contract.9
Notably, R.I. Gen. Laws 45-9-9 does not require the Receiver to certify that taxes will
not increase during the life of the CBA. It would be impossible to do so. Rather, the fire
districts resources and revenues need only be adequate to support such collective bargaining
agreement without a detrimental impact on the provision of municipal or fire district services.
Third, whether or not the CBAs should have been approved, the fact remains: they were.
Each CBA was executed by both the Union and the Receiver. To the extent the Director of
Revenue believed the CBAs were improperly or illegally executed, he could have said so. Not
only was there no indication that the Receiver executed the CBAs in violation of 45-9-9, as
discussed above, the Director of Revenue agreed that the CBAs would achieve savings for the
District. The only impediment to implementation was that some of the elected board members
opposed the plan. See Memo, Exhibit 3 (Notwithstanding those negotiated savings that would
provide a significant benefit to the District, the Board, the Town and an elected representative in
the community have continued to insist that the Plan not include the current union model for
delivery of fire and rescue services but instead include a model that utilizes volunteer and/or
private fire and rescue services.).

And lower than the previous years budget, see R.I. Gen. Laws 44-5.2-3, discussed infra.
Director Sullivan also notes that the Plan could not be successfully implemented if CCFD were
required to provide services to the Coventry Fire District for any longer than a short period of
time. Therefore, to the extent that the Towns plan for delivery of fire and rescues services in the
Coventry Fire District envisions that those services would be provided by CCFD, this would be
yet another impediment to the successful implementation of the Plan. See Memo, Exhibit 3 at p.
3. As this Court is no doubt aware, Local 3372 has reached an agreement with the Coventry Fire
District, which was funded by the taxpayers, and which will provide adequate fire and rescue
coverage to the Coventry Fire District. Thus, it will not be necessary for CCFD to provide fire
and rescue services to the Coventry Fire District for any longer than a short period of time, if
at all.
9

13

Moreover, the Union respectfully submits that this Court lacks jurisdiction to determine
whether the revenues are, and will continue to be, adequate to support such collective
bargaining agreement without a detrimental impact on the provision of municipal or fire district
services. R.I. Gen. Laws 45-9-9. There can be no doubt that in enacting the Fiscal Stability
Act, the General Assembly sought to put the State, through the Director of Revenue, in control of
distressed municipalities and fire districts. This Court recognized that fact in its November 25,
2015 decision. The determination of whether the CBA will have a detrimental impact on the
provision of fire district services is to be made by the Receiver. It clearly was. The decision
cannot be revisited by this Court either through receivership proceedings or declaratory judgment
proceedings.
Fourth, CCFD erroneously asserts (citing no case support) that the CBAs are void
because they were not formally approved by the Bankruptcy Judge. See Memo at p. 8. On the
contrary, while the bankruptcy plan itself was subject to approval by the Court, a bankruptcy
court cannot interfere with municipal debtors ability to enter into contracts. Sections 903 and
904 of the Bankruptcy Code are designed to recognize the court's limited power over operations
of the debtor. See 11 U.S.C.A. 903 and 904. Section 904 limits the power of the bankruptcy
court to "interfere with (1) any of the political or governmental powers of the debtor; (2) any of
the property or revenues of the debtor; or (3) the debtor's use or enjoyment of any incomeproducing property. The provision makes it clear that the debtor's day-to-day activities are not
subject to court approval and that the debtor may borrow money, or enter into contract, without
court authority. The court also cannot interfere with the operations of the debtor or with the
debtor's use of its property and revenues. The restrictions imposed by 11 U.S.C. 904 are
necessary to ensure the constitutionality of chapter 9 and to avoid the possibility that the court

14

might substitute its control over the political or governmental affairs or property of the debtor for
that of the state and the elected officials of the municipality, if applicable.
Finally, CCFD asserts that neither CBA could by (fully) funded now, given CCFDs
most recently adopted budget, which was for a six-month period.10 Memo at p. 7. Under
CCFDs analysis, a CBA exceeding a year could never be fully funded, since no municipality or
district in the State adopts budgets exceeding a year. Yet, the Firefighters Arbitration Act, along
with every other public sector bargaining law in the State, permits three year contracts. In fact,
the FFAA was amended in 2014 to explicitly permit a contract to exceed three (3) years if a
budget commission or a receiver has been appointed for a municipality or fire district pursuant to
chapter 9 of title 45, [in] which case the contract shall not exceed the term of five (5) years.
R.I. Gen. Laws 28-9.1-6. If the receiver had to certify that the CBA would be fully funded
each year of a five-year contract, a five-year contract could never be executed, making the
amendment completely meaningless.
B. The Taxpayers Of CCFD Must Either Fund A Valid Collective Bargaining
Agreement Entered Into By The Board Of Directors Or Be Subject To Civil
And/Or Criminal Liability
1. The FFAA permits collective bargaining agreements of three years (or five years
in the case of a receivership)
CCFD argues that the CBA is void insofar as it improperly ties the hands of subsequent
officials. See Memo at p. 10. The argument lacks merit. Every Town and City in the state
funds multi-year collective bargaining agreements on an annual basis. A municipality (or fire
district) cannot circumvent a validly executed multi-year CBA merely by claiming that it may
only adopt budgets on an annual basis. As this Court is well-aware, under applicable law, a

10

The adoption of a six-month budget is not permitted by the Districts Charter.

15

municipality, including a quasi-municipal corporation, such as the CCFD, is required to fund a

duly executed CBA, even if it exceeds a year. See Exeter-West Greenwich Regional School
District v. Exeter West Greenwich Teachers, 489 A.2d 1010 (1985).11
Moreover, this argument, if adopted, would render a receivers ability to execute a
collective bargaining agreement under R.I.G.L. 45-9-9 non-existent. After all, every contract
executed by a receiver, be it for one-year or five-years, binds subsequent officials.
Further, CCFD relies on a common-law rule that has been trumped by the
Firefighters Arbitration Act. It argues that under the common-law, it is against public policy
for a body politic to exercise a governmental function which extends beyond the terms of the
members.12 But, the Firefighters Arbitration Act (FFAA) explicitly provides that collective
bargaining agreements may last three years, or five years in the case of a receivership under
chapter 9 of title 45. See R.I. Gen. Laws 28-9.1-6. Thus, to the extent the common-law rule
cited by CCFD conflicts with the FFAA, or the FSA, the common-law is abrogated. See
Providence Rubber Co. v. Goodyear, 76 U.S. 788 (1869)(where common law [is] in conflict
with state's statutory provisions, the common law [is] abrogated.); Traugott v. Petit, 122 R.I. 60,
11

CCFDs claim that Exeter-W. Greenwich does not apply to Fire Districts defies logic. It
argued in a previous submission to this Court (and incorporates the argument in footnote 9 of its
Memo) that because the Lamb Act, R.I.G.L. 16-3-11(n), contains a provision reaffirming that
public employers may contract with its employees for services to be rendered in the ensuing
fiscal year, but the FFAA lacks that provision, that Fire Districts are not required to fund multiyear CBAs. As the Court discusses in Exeter -W. Greenwich, the only reason the General
Assembly inserted the aforementioned language into the Lamb Act was to make it clear that the
remaining sections of the Lamb Act relating to deficit spending did not apply to collective
bargaining agreements. Because there is no law that prohibits Fire Districts from deficit
spending, there would be no reason for the General Assembly to enact a provision reaffirming
that Fire Districts may contract for services in ensuing fiscal years.
12
Of course, if, as CCFD argues, only the qualified voters can approve a collective bargaining
agreement for the District, the common-law rule cited by CCFD has no application, since the
voters terms do not expire.

16

63 (1979) (emphasis added) (the common law governs the rights and obligations of citizens in
Rhode Island unless that law has been modified by the General Assembly); Benevides v.
Kelly, 90 R.I. 310, 316 (1960)(emphasis added)(It is settled in this jurisdiction that the courts
will follow the common law to the extent that it remains applicable in given circumstances
unless such law is modified by statute.); Lombardi v. California Packing Sales Co., 83 R.I.
51, 54 (1955). That is likely why no Court in this State has invalidated a multi-year collective
bargaining agreement based on the common-law rule cited by CCFD.
Furthermore, Section 14 of the Charter specifically provides that, notwithstanding the
consolidation of districts that occurred in 2006, the labor contracts shall continue in full force
and effect until their termination dates or until otherwise agreed by the parties or their legal
successors. Emphasis added. At the time the Charter was amended by the General Assembly
in 2006, see P.L. 06-492, a three-year collective bargaining agreement was in effect between
CCFD and the Union. The Charter, then, not only envisions that collective bargaining
agreements may last more than a year, it explicitly provides that CBAs may bind CCFDs legal
successors.
Finally, there is no evidence that subsequent officials would not want to be bound by the
CBA. Perhaps they would welcome a CBA that saves the District $13.9 million over a five-year
period. Once again, the CCFD seeks an opinion from this Court based on a position that future
officials may or may not take.

17

2. The qualified voters do not need to approve the CBAs

CCFD cites no support for its claim that a collective bargaining agreement not explicitly
approved by the qualified voters is void.13 Once again, its argument is baseless. First, under
the FSA, the Receiver, not the qualified voters, nor the Board of Directors, determines whether
to execute a CBA. In fact, R.I. Gen. Laws 45-9-9 provides, [n]otwithstanding chapter 7 of
title 28 or any other general or special law or any charter or local ordinance to the
contrary, new collective bargaining agreements, and any amendments to new or existing
collective bargaining agreements shall be subject to the approval of the fiscal overseer, budget
commission, or receiver. Emphasis added. As discussed above, the Receiver determined that it
was in the best interest of the District to execute the CBA, and the Director of Revenue agreed.
No approval was required by the qualified voters.
Absent application of the FSA, the Board of Directors negotiates and approves collective
bargaining agreements. Pursuant to the CCFD Charter, the Board of Directors shall have all
necessary authority to operate and conduct the business of the District as necessary. See
Section 6(b). The Board also has the power to appoint and/or employ positions deemed
necessary for the efficient operation of the District. Because the Board has the power to employ
firefighters, it must necessarily have the power to approve their employment contracts.
Furthermore, the By-Laws of the Central Coventry Fire District provide, in pertinent part,
[t]he Board of Directors shall be responsible for the negotiation of all labor
contracts; may appoint a subcommittee of no less than three (3) individuals,
including no less than one (1) Directors to represent them in negotiations; shall
have final approval of said contract.
Section 1.H (Emphasis added). See Memo, Exhibit 2.

13

It is not clear whether it is CCFDs position that the taxpayers must also be present at the
bargaining table, or must approve a negotiating team.
18

Likewise, pursuant to Section I.G., the Board of Directors shall determine the duties,
salaries or wages, benefits, and conditions of employment of all appointees and/or employees.
CCFD argues that the CBA is invalid because it was not approved by the qualified
voters. However, there is nothing in the Charter or By-Laws that requires voters to approve
every contract the Board negotiates. On the contrary, as noted above, the By-Laws,14
specifically vest the Board of Directors with the authority to execute contracts. CCFD relies on
Section 3 of the Charter which provides, the district shall hold an annual meeting for the
purposes of: (4) authorizing an annual budget to provide for the payment of wages and
salaries, and for such other expenditures deemed necessary by the qualified voters of the
District. Simply because the voters may decline to approve a budget that includes payment of
wages and salaries for its firefighters, does not make the contract void or unenforceable. It
merely means that the voters may decide, for whatever reason, that the budget, as proposed, is
unacceptable. However, voters do not have line-item veto power over the budget.
Notably, even if the voters decide that they do not wish to approve a budget, the General
Assembly has recently passed a law providing that the previous years budget appropriation
remain in effect. See R.I. Gen. Laws 44-5.2-3 (Unless otherwise provided by charter, if a fire
district in the town of Coventry fails to approve an annual appropriation measure, the same
amounts appropriated in the previous fiscal year shall be available.). What could be clearer
evidence that the voters lack the power to appropriate insufficient funds than a State law
requiring the District to appropriate, a minimum, the same amounts appropriated in the previous
fiscal year?

14

The By-Laws were presented and approved by the voters at the Annual Meeting on October 4,
2010 in accordance with Section 11 of the Charter.
19

Finally, it would appear that by approving the budget proposed by the Board of Directors,
which was intended to fund the current collective bargaining agreement, the qualified voters did
approve the CBA.
C. The District And Board Of Directors Must Comply With The Charter And
FFAA In Determining The Method Of Providing Fire Prevention, Fire
Suppression And/Or EMS Services
CCFD seeks a declaration that the taxpayers have the sole and final determination of how
fire suppression and EMS services are provided to CCFD, including whether said services are to
be provided by employees, independent contractors (i.e. call-pay personnel), vendors, or
volunteers. The Union submits that the Court should decline to make such a broad and
speculative declaration. If the District, either through its Board of Directors or a vote of the
taxpayers, wishes to terminate its employees and hire a private ambulance service, for example,
and they vote accordingly, perhaps that specific question would be properly before this Court for
determination. But to ask this Court to make a declaration that the taxpayers have the right to
take whatever action they choose is much too broad in scope to be addressed by the Court at this
time.
To the extent the Court is inclined to make a determination as to the authority of the
taxpayers to decide whether to provide fire suppression service and EMS services, and if so, by
what method, the Union submits that nothing in the Charter gives the taxpayers the ability to
determine how fire suppression and EMS services are provided to CCFD. If the General
Assembly wanted to vest power with the taxpayers to determine whether to have or have no
fire suppression and EMS services, it could have said so. It did not. On the contrary, it granted
the taxpayers the authority to either approve or not approve a budget, order such taxes and
provide for the assessing and collecting of the same, and raise money through taxes to

20

purchase the necessary vehicles and equipment to operate and maintain a rescue unit to be
known as the Central Coventry Rescue. See Sec. 7. Thus, the voters have the power to assess
taxes to purchase equipment and pay employees.15 If they choose not to assess taxes, or assess
insufficient taxes to provide the fire services deemed necessary by the Board of Directors, they
may be liable under Cole v. East Greenwich Fire Engine Co., 12 R.I. 202 (1878). See also
Bouchard v. Central Coventry Fire District, C.A. No. WB-12-1150 (October 18, 2013), Local
3372 v. Coventry Fire District, C.A. No. KC-15-0826 (September 28, 2015); Flynn v. King, 433
A.2d 172 (R.I.).
CCFD asserts that the Districts failure to satisfy its debts cannot give rise to or be
circumvented by a civil action against the people of the District for breach of contract or any
other type of equitable relief deriving from the peoples failure to appropriate funds. Memo at
p. 15. Essentially, CCFD argues that if the District violates a valid contract, and the District
lacks sufficient funds to remedy the violation, the taxpayers are immune from collection activity.
This Court has already rejected that argument. In Bouchard, citing West Warwick, supra, this
Court said,
[i]f quasi-municipalities are authorized by law to enter into binding agreements,
which they are, then the community is bound to fund that agreement through
its appropriating authority, whether that is the city or town council or the
financial town meetings or a district financial meeting. To conclude otherwise
would completely negate the statutory power of the district to bargain and contract.
This would mean that the legislature has given with one hand and taken away with
the other.
Id. at p. 15 (emphasis added). Therefore, in Bouchard, this Court held that although only the
voters have the power to approve or disapprove a budget, the Court still has the authority

15

Notably, the Charter makes no reference to the ability to raise taxes to pay a private ambulance
service.
21

under the Supreme Court precedent to order the district to levy additional taxes to pay a
judgment which the district does not have the sufficient money to satisfy. See Exhibit 2 at
15 (emphasis added).
Here, the Board of Directors have all necessary authority to operate and conduct the
business of the District as necessary, including the power to negotiate and approve collective
bargaining agreements. See Charter, Sec. 6. CCFD argues that the people not the District
itself always held the power to tax. See Memo at pp. 14-15. Again, it is unclear whether the
people are represented in the instant case. But, assuming that the power to tax belongs to the
people, rather than the District itself, requiring the people to comply with a validly executed
CBA does not deprive them of their taxing authority. The taxpayers may decide to fund a
proposed budget, or not. If the taxpayers are unhappy with the budget proposed, or the structure
of services, or the terms of the collective bargaining agreement, they have the same recourse as
any other taxpayer in the state: elect new representatives.
Finally, CCFD places too much emphasis on the so-called Separation of Powers
amendment.
[T]he separation of powers amendments did not, either explicitly or implicitly, limit
or abolish the power of the General Assembly in any other area where we have
previously found its jurisdiction to be plenary. Such areas include the General
Assembly's duty to provide for the state's natural environment (article 1, section
17); its regulatory power over lotteries (article 6, section 15); and its duty with
respect to education and public library services (article 12, section 1).
In re Request for Advisory Opinion from House of Representatives (Coastal Res. Mgmt.
Council), 961 A.2d 930, 935-36 (R.I. 2008). It also includes that power to tax (article 6, section
12). Because the power to tax is expressly granted to the legislative branch, it is not retained by
the people. But, even if it was, requiring taxpayers to comply with valid judgments does not
deprive them of any reserved rights.
22

CONCLUSION
Based on the foregoing, to the extent the Court is inclined to issue declaratory relief, the
Union requests that this Court answer the stipulated questions as follows (noted in bold):
1. What is the obligation of the Board of Directors as to the terms of either of the
two (2) CBAs negotiated between the Union and the State Receiver? To
comply with both CBAs and propose a budget sufficient to fully fund them.
2. Must the taxpayers of the CCFD fund, through the raising of taxes, the valid
collective bargaining agreement entered into by the Board of Directors? Yes.
3. Does the Charter, by virtue of the taxing authority, give the taxpayers the right
to determine the mechanism of how fire suppression and EMS services are
provided to the CCFD? No.

Respectfully submitted,
Coventry Professional Firefighters, Local
3372,
By its Attorney,

/s/ Elizabeth Wiens

Elizabeth Wiens, Esq. (#6827)
GURSKY|WIENS Attorneys at Law, Ltd.
420 Scrabbletown Rd., Ste. C
North Kingstown, R.I. 02852
Tel. (401) 294-4700
Fax. (401) 294-4702

CERTIFICATION
I hereby certify that on the 5th day of February, 2016, I filed and served this document
through the electronic filing system. This document is electronically filed and served and is
available for viewing and/or downloading from the Rhode Island Judiciarys Electronic Filing
System.

/s/ Jessica Marsh

23