Stephen M. McGrath
Town of Foxborough
This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace
v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Stephen M. McGrath (plaintiff or McGrath) a police officer in Foxborough (town or Foxborough), brought suit seeking a declaration that the town had violated G. L. c. 41, § 96B, inserted by St. 1994, c. 333, which requires that a " student officer" be paid " the regular wages provided for the position to which he was appointed," and alleging a violation of G. L. c. 149, § 148, the Wage Act. The parties filed cross motions for summary judgment; a Superior Court judge allowed the town's motion, denied the plaintiff's, and entered a declaratory judgment in the town's favor. The plaintiff appeals, and we reverse.
We review a grant of summary judgment de novo, with " no deference to the decision of the motion judge." DeWolfe
v. Hingham Centre, Ltd., 464 Mass. 795, 799, 985 N.E.2d 1187 (2013). " We ask whether the evidence, in the light most favorable to the party losing the contest of cross motions, and the controlling law entitle the prevailing party to judgment." Audubon Hill S. Condominium Assn.
v. Community Assn. Underwriters of Am., 82 Mass.App.Ct. 461, 465, 975 N.E.2d 458 (2012).
General Laws c. 41, § 96B, as amended by St. 2002, c. 196, § 17, provides as follows:
" Every person who receives an appointment to a position on a full-time basis in which he will exercise police powers in the police department of any city or town, shall, prior to exercising police powers, be assigned to and satisfactorily complete a prescribed course of study approved by the municipal police training committee. The provisions of chapter thirty-one and any collective bargaining agreement notwithstanding, any person so attending such a school shall be deemed to be a student officer and shall be exempted from the provisions of chapter thirty-one and any collective bargaining agreement for that period during which he is assigned to a municipal police training school, provided that such person shall be paid the regular wages provided for the position to which he was appointed and such reasonable expenses as may be determined by the appointing authority and be subject to the provisions of chapter one hundred and fifty-two" (emphasis supplied).
This case turns on the emphasized text. In essence, the town argues that McGrath, while attending the police academy, was by statute deemed a student officer and, therefore, only entitled to be paid according to the student officer rate provided in the town's by-law. McGrath, on the other hand, argues that he was appointed as a police officer and, therefore, was entitled to be receive the regular wages (without ancillary benefits) of a police officer as established in the collective bargaining agreement (CBA), even while attending the academy.
It is undisputed that, on July 26, 2006, the then town manager appointed McGrath to the position of police officer for the town, pursuant to G. L. c. 41, § 96B, the civil service law. The appointment letter stated:
" I am pleased to inform you [McGrath] that I am appointing you to the position of Police Officer, in the Foxborough Police Department, starting on September 17, 2006." 
Although McGrath was appointed as a police officer starting September 17, 2006, he spent his first few months (until February 24, 2007) training at the police academy. He did not (and could not) exercise police powers while in training.
Based on these undisputed facts, it is clear that as of July 26, 2006 (the date of the appointment letter), McGrath was a person who had " receive[d] an appointment to a position on a full-time basis in which he will exercise police powers in the police department of any city or town." G. L. c. 41, § 96B. It is equally clear that McGrath was to be deemed a student officer from September 17, 2006, to February 24, 2007, while he attended the police academy. During that period, he was to " be paid the regular wages provided for the position to which he was appointed," but was otherwise " exempted from the provisions of chapter thirty-one and any collective bargaining agreement." G. L. c. 41, § 96B.
Our previous construction and application of G. L. c. 41, § 96B, in Cambridge
v. Cambridge Police Patrol Officers Assn., 58 Mass.App.Ct. 522, 791 N.E.2d 355 (2002), informs our analysis and conclusion here. As we stated, the statute " assur[es] that police recruits who are in training will receive the same basic pay as regular sworn officers but not necessarily the other economic or non-economic benefits of a collective bargaining agreement. Section 96B distinguishes 'regular wages' from other forms of remuneration that might be secured by a collective bargaining agreement and guarantees cadets the right only to receive regular wages plus 'reasonable expenses.'" Id. at 526. The regular wages for a police officer in Foxborough are set by the CBA; the town was accordingly not permitted to compensate McGrath at a " student officer" rate set in its by-law.
The town argues that even if the CBA established the regular wages of a Foxborough police officer, prior practice bound McGrath to the lower student officer pay scale contained in the town's by-law. To support this argument, the town points to the fact that, for over fifteen years, the town has paid student officers at the rate set in the by-law without protest from the union or other student police officers who were effected. Neither the by-law, nor the fact that third parties may have acquiesced to its application, can override the requirements of § 96B. See Galenski
v. Erving, 471 Mass. 305, 311, 28 N.E.3d 470 (2015), quoting from Cioch
v. Treasurer of Ludlow, 449 Mass. 690, 699, 871 N.E.2d 469 (2007) (" [A] municipality may not enact a bylaw, policy or regulation that is inconsistent with ...