2006-911, JAMES M. STANKIEWICZ v. CITY OF MANCHESTER

from May 7, 2004, until October 17, 2004. Prior to his absence, the plaintiff injury. In 2004, he underwent surgery, resulting in his being absent from work

Manchester Police Department in 1986. In 2000, he suffered a work-related The record supports the following facts. The plaintiff was hired by the

dismiss for lack of jurisdiction. We affirm in part and reverse in part. City of Manchester (City). The City cross-appeals the denial of its motion to and granting the cross-motion for summary judgment of the defendant, the the Superior Court (Abramson, J.) denying his motion for summary judgment GALWAY, J. The plaintiff, James M. Stankiewicz, appeals the rulings of

and Thomas I. Arnold, III orally), for the defendant. City Solicitor's Office, of Manchester (Daniel D. Muller, Jr. on the brief,

plaintiff. Matthew G. Mavrogeorge on the brief, and Mr. Morrissette orally), for the to press. Errors may be reported by E-mail at the following address: McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette and

editorial errors in order that corrections may be made before the opinion goes No. 2006-911 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as while the City cross-appeals the denial of its motion to dismiss. p. 2 appeals the trial court’s rulings on the cross motions for summary judgment,

requirement.

credit would be restored upon repayment of his sick leave money. The plaintiff

therefore, governed by the CBA’s grievance procedures and arbitration

judgment and denied the plaintiff’s motion, ruling that the plaintiff’s sick leave CBA. In a later order, the trial court granted the City’s motion for summary agreement (CBA) between the City and the police supervisors union and was, jurisdiction because the plaintiff’s claim was based upon the MCO, not the on the ground that the plaintiff’s claim arose under the collective bargaining counterclaimed for repayment of the sick leave money, and moved to dismiss have his sick leave credit restored without having to repay the City. The City

was not restored. court, after a hearing, denied the City’s motion to dismiss, ruling that it had The parties filed cross motions for summary judgment. The superior

credit shall be restored.” According to the plaintiff, the MCO entitled him to the 2004 through 2007 agreement. benefits. On a determination of eligibility for compensation benefits, sick leave the provisions relevant to this appeal are identical, and we therefore cite only to determination of compensation eligibility, the employee may receive sick leave two collective bargaining agreements between the City and its police officers, the Manchester Code of Ordinances (MCO), which states: “Pending 2007). We note that although the plaintiff’s claim spans the effective dates of Manchester Association of Police Supervisors, Art. 7 (July 1, 2004 – June 30,

See Agreement Between the City of Manchester, N.H. and the

be restored. The plaintiff refused to repay the money, and his sick leave credit plaintiff that once he repaid the sick leave money, his sick leave credit would received workers’ compensation benefits for that time. The City informed the repay the sick leave money he received during his absence because he had now

seeking restoration of his sick leave credit pursuant to section 33.064(B)(2) of In September 2005, the plaintiff filed a declaratory judgment action

leave credit for the time he was absent. workers’ compensation benefits, but permitted him to use his accumulated sick

compensation benefits. The City paid the award, but asked the plaintiff to Hampshire Compensation Appeals Board, the plaintiff was awarded workers’ February 2, 2005, following hearings with the department of labor and the New plaintiff sought a hearing with the New Hampshire Department of Labor. On After his claim for workers’ compensation was denied by the City, the

surgery was necessitated by his injury in 2000. The City denied his request for filed a workers’ compensation claim with the City alleging that his 2004 not agree. p. 3 the CBA, the plaintiff may not avail himself of the benefits of the MCO. We do 3

various aspects of the employment relationship with its employees.

conform with those provisions, and because the plaintiff’s rights are defined by

generally City of Manchester, New Hampshire, Code of Ordinances, ch. 33. The

Pursuant to that authority, the City has adopted ordinances pertaining to governance. See RSA 47:17 (2003 & Supp. 2007); RSA 49-B:8 (2003). Municipalities have general authority to adopt ordinances for their 33.020 through 33.082 of this chapter. contracts are renegotiated to conform with the provisions of §§ between the city and employees’ groups unless or until such

contends that because the CBA covering the plaintiff was not renegotiated to covering him was renegotiated to conform with those provisions. The City including section 33.064, from applying to the plaintiff, unless the contract According to the City, this section prevents certain provisions of the MCO, City of Manchester, New Hampshire, Code of Ordinances, ch. 33, sec. 33.023.

shall amend or modify any existing legal and binding contract None of the provisions of §§ 33.020 through 33.082 of this chapter interpretation of an ordinance is a question of law, which we review address the relief sought by the plaintiff. As to the first issue, the Section 33.023 of the MCO states: the plaintiff’s claim could not be governed by the CBA because it does not MCO did not exempt the plaintiff’s claim from the coverage of the MCO; and (2) see fit to include. Id. drafters of the ordinance might have intended, or add words that they did not itself for further indications of legislative intent, and we will not guess what the ordinance is plain and unambiguous, we need not look beyond the ordinance common and approved usage of the language. Id. When the language of an review, we construe the words and phrases of an ordinance according to the Because the traditional rules of statutory construction generally govern our Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 41 (2007).

matter because: (1) contrary to the City’s argument, section 33.023 of the The trial court determined that the MCO, and not the CBA, governed this

jurisdiction over this matter lies with an arbitrator and not the court. requirement that his claim be submitted to binding arbitration. Thus, the plaintiff is required to abide by its grievance procedures, including the The City contends that this dispute is governed by the CBA. Therefore,

I. Motion to Dismiss p. 4 4

exercise of jurisdiction. and (3) the impossibility of compliance with the CBA does not justify the court’s presumed to be entitled to the benefits of the MCO, even if the CBA is silent; matter within the jurisdiction of the arbitrator; (2) the plaintiff cannot be

of the MCO did not exempt the plaintiff’s claim from the coverage of the MCO. is subject to the MCO. We conclude, as did the trial court, that section 33.023 Because the CBA at issue was formed after the enactment of section 33.023, it because: (1) the trial court decided the arbitrability of the plaintiff’s claim, a the time it was adopted, contracts formed thereafter are subject to the MCO. [the plaintiff] to pursue his claim.” The City argues that this was error CBA, “[t]he grievance procedure of the CBAs is not the appropriate avenue for plaintiff’s claim for restoration of his sick leave credit is not addressed by the and resort to the MCO is unnecessary. The trial court found that because the plaintiff’s claim from the MCO, his claim is addressed by the terms of the CBA The City next contends that even if section 33.023 does not exempt the sections 33.020 through 33.082 of the MCO, do not amend or modify “ into by that employer). Therefore, section 33.023 of the MCO states that law or regulation that would invalidate any portion of an agreement entered

are renegotiated. As section 33.023 exempts only those contracts existing at enacted and exempts such contracts from complying with the MCO until they present tense, it refers to those contracts existing at the time the provision was 33, sec. 33.023 (emphasis added). Because section 33.023 is stated in the applicable to the plaintiff. renegotiated.” including section 33.06 p. 4 4, become part of the agreement of the parties and are City of Manchester, New Hampshire, Code of Ordinances, ch. existing of local laws existing at the time the CBA here was formed, its provisions, legal and binding contract[s] . . . unless or until such contracts are place of the contract’s formation and performance. Because the MCO is a set any comply with the terms of the MCO, as it is the law subsisting at the time and

(1999) (declaring it an unfair labor practice for a public employer to make any they were expressly referred to or incorporated in its terms.” employees’ groups by adopting new ordinances. See, e.g., RSA 273-A:5, I(i) governance, may not, however, simply alter or abandon valid contracts with its The City, despite its general authority to adopt ordinances for its

the City and any employees’ groups enter into contracts, those contracts must Academy v. Exeter, 90 N.H. p. 4 472, 484 (1940) (quotation omitted). Thus, when

contract, and where it is to be performed, enter into and form a part of it, as if “[T]he laws which subsist at the time and place of the making of a

(1881), which no party challenges in this appeal. City’s ordinances are valid local laws, see State v. Hayes, 61 N.H. 26 p. 4 4, 330 p. 5 5

in denying the City’s motion to dismiss. Accordingly, for the above reasons, we conclude that the trial court did not err procedures. Those procedures simply do not apply to the plaintiff’s claim.

himself of the MCO, which specifically addresses his claim. the CBA is silent. The CBA is silent on this issue, and the plaintiff may avail

whether it is possible for the plaintiff to comply with the CBA’s grievance may exercise jurisdiction, and not upon the CBA. Therefore, it is irrelevant noted, the plaintiff’s claim is based upon the MCO, over which the trial court the CBA, does not justify the trial court’s exercise of jurisdiction. However, as grievance procedures, i.e., by not stating a violation of an express provision of The City next argues that the impossibility of complying with the CBA’s

plaintiff cannot be presumed to be entitled to the benefits of the MCO, even if Also, for the above reasons we reject the City’s argument that the

grievance under the CBA, nor fall within the jurisdiction of an arbitrator. relation to sick leave, the plaintiff’s claim could neither be the subject of a Because the CBA is silent on the issue of workers’ compensation and its interpretation of the express provisions of the CBA, see id., art. 7, sec. 7.1(A). CBA regarding only those claims that arise out of the application or see id., art. 7, sec. 7.6, and the plaintiff need follow the requirements of the The CBA itself limits an arbitrator’s jurisdiction to its express provisions,

those benefits would affect the use of, or credit for, sick leave credit. nothing at all about workers’ compensation benefits, or how the receipt of 16, secs. 16.1-16.4 (July 1, 2004 – June 30, 2007). The CBA, however, says is seeking to vindicate a right that does not emanate from the CBA. Manchester, N.H. and the Manchester Association of Police Supervisors sick leave credit arises out of a right conferred by the MCO. Thus, the plaintiff, art. and in what circumstances it may be used. See Agreement Between the City of The CBA states how and at what rate sick leave credit may be accumulated, Employee Labor Relations Board (PELRB), Indeed, the plaintiff’s claim could not have been brought under the CBA.

the plaintiff’s claim because his claim was based only upon the MCO. of statute). Thus, the trial court did not err by determining the arbitrability of the plaintiff’s claim emanated from the collective bargaining agreement instead court infringed upon the jurisdiction of the PELRB failed because it assumed v. Town of Seabrook, 14 p. 5 5 N.H. 536, 540 (2000) (town’s argument that superior

claim arises under the CBA. Here, the plaintiff’s claim to the restoration of his Rochester, 149 N.H. p. 5 528, 533-34 (2003), that rule applies when the relevant

generally within the jurisdiction of the arbitrator or the New Hampshire Public As to the first argument, while the determination of arbitrability is p. 6 6

relevant part: the plaintiff must repay the sick leave money. The preceding section reads, in with the preceding section and that such a reading leads to the conclusion that The City argues that section 33.0 p. 6 64(B)(2) must be read in conjunction

the plaintiff to repay the City. benefits, sick leave credit shall be restored.” City of Manchester, New requires the City to restore the plaintiff’s sick leave credit, but does not require receive sick leave benefits. On a determination of eligibility for compensation credit.” Therefore, we conclude that the plain language of the ordinance states, “Pending determination of compensation eligibility, the employee may the City. In fact, the ordinance speaks only to the restoration of “sick leave credit, but nowhere in the ordinance does it require the employee to reimburse mandatory). These words require the City to reinstate the employee’s sick leave and granted its motion on its counterclaim for repayment. 351, 354 (200 p. 6 6) (generally use of “shall” makes enforcement of the provision leave credit shall be restored. See In the Matter of Bazemore & Jack, 153 N.H. sick leave credit and that once the employee’s eligibility is determined, the sick compensation benefits is undetermined, the employee may use accumulated plain language provides that while an employee’s eligibility for workers’ the common and approved usage of the language. Id Hampshire, Code of Ordinances, ch. 33, sec. 33.064(B)(2). The ordinance’s our review, we construe the words and phrases of an ordinance according to

plaintiff’s claim, we turn to the language of the ordinance. Section 33.0 p. 6 64(B)(2) As we have previously determined that the ordinance governs the

that the trial court properly denied the plaintiff’s summary judgment motion that they did not see fit to include. Id. the MCO, which does not contain a repayment obligation. The City contends guess what the drafters of the ordinance might have intended, or add words him to repay the City because his claim was based upon section 33.0 p. 6 64(B)(2) of ordinance itself for further indications of legislative intent, and we will not summary judgment. The plaintiff argues that the trial court erred in requiring an ordinance is plain and unambiguous, we need not look beyond the

41. Because the traditional rules of statutory construction generally govern law, which we review de novo. Blagbrough Family Realty Trust, 155 N.H. at As noted previously, the interpretation of an ordinance is a question of

the plaintiff’s claim, we turn to its rulings on the parties’ cross-motions for Having determined that the trial court could exercise jurisdiction over

II. Motions for Summary Judgment the restoration of sick leave credit, when the only condition stated in the

p. 7 language creating a repayment obligation as a condition to be fulfilled prior to

its drafters did not see fit to include. The trial court’s construction adds Nevertheless, to rule as the trial court did is to add words to the ordinance that sick leave is not before us, and we express no opinion on that matter.

in the Ordinance indicates that such a windfall was contemplated. period, in addition to maintaining his sick leave credits. Nothing supplemental benefits, and sick leave benefits for the same time essentially be collecting workers’ compensation benefits,

collect “supplemental benefits” under section 33.064(B)(1) in addition to his

ordinances, it is free to amend them as it sees fit. See had used. Should the City disagree with our plain language construction of the responsibility upon the plaintiff to repay the City for the sick leave credit he would lead to an illogical result, as he would, as the City asserts,

Preliminarily, we note that the issue of whether the plaintiff is entitled to The trial court agreed with the City’s assessment, ruling that: 33.064(B)(2), the plaintiff should repay the City. The superior court, therefore, determined that despite the language of section

sick leave credit are found in section 33.064(B)(2), and those terms impose no pay in addition to the compensation award. The only express terms regarding interpreting the Ordinance in the manner urged by [the plaintiff]

credit restored without requiring him to repay the City will result in a windfall. Finally, the City contends that allowing the plaintiff to have his sick leave

Heritage Life Ins. Co., 149 N.H. 216, 221 (2003).

sustains a compensable injury, he or she is entitled to receive supplemental credit in relation to workers’ compensation. It states only that if an employee however, says nothing about an employee’s use of, or repayment for, sick leave [sic percent prescribed by the ordinance. The plain language of this section, entitled to receive compensation benefits either by agreement of leave credit will permit him to receive benefits in excess of the eighty-seven 33.064(B)(1). The City contends that allowing the plaintiff to keep the sick City of Manchester, New Hampshire, Code of Ordinances, ch. 33, sec.

Security. Security, and 87% if the employee is not covered under Social 80% of regular gross salary if the employee is covered under Social worker compensation and supplemental pay benefits shall equal receive supplemental pay benefits from the city so that combined ] award shall, in addition to workers compensation benefits,

compensable under the Workers Compensation Law and who is Any employee of the city who sustains an injury which is p. 8 8

.

having to repay the City.

BRODERICK, C.J.