Municipal – Employees – Military Leave

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Where two plaintiff employees of the defendant city of Lynn took military leaves to fulfill their National Guard duties, the city acted properly, under G.L.c. 33, Sect. 59, by paying the plaintiffs for the work days they missed during the first 17 days of their leaves.

An order requiring the city to compensate the plaintiff for 17 missed work days is reversed.

Appeals Court’s Analysis

“The plaintiffs are employed as police officers by the city of Lynn and are also members of the Army National Guard. In their complaint for declaratory relief, they claim that the defendant city did not properly compensate them under G.L.c. 33, Sect. 59, for periods during which they were fulfilling their National Guard service obligation while on military leaves of absence from their city employment. Acting on cross motions for summary judgment, a Superior Court judge allowed that of the plaintiffs, declaring that the ‘seventeen day military allowance’ of G.L.c. 33, Sect. 59, is to be applied ‘not consecutively, but on scheduled work days. …’ The defendants appeal, essentially arguing that Sect. 59 should be read as protecting against loss of a governmental employee’s ordinary pay for up to seventeen consecutive days of his annual tour of duty with the military.

“At all relevant times, the pertinent parts of G.L.c. 33, Sect. 59, provided as follows: ‘Any person in the service of the commonwealth, or of a county, city or town … shall be entitled, during the time of his service in the armed forces of the commonwealth, under section thirty-eight, forty, forty-one, forty-two or sixty, or during his annual tour of duty of not exceeding seventeen days as a member of a reserve component of the armed forces of the United States, to receive pay therefor, without loss of his ordinary remuneration as an employee …, and shall also be entitled to the same leaves of absence or vacation with pay given to other like employees. …’ …

“We construe the seventeen-day limitation in G.L.c. 33, Sect. 59, to apply to the ‘annual tour of duty’ of the plaintiffs. ‘It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.’ … Therefore, we read the words ‘of not exceeding seventeen days’ as modifying ‘annual tour of duty.’ We discern nothing in the subject matter or purpose of the legislation which dictates a contrary interpretation.

“Proceeding to the operative clause following the seventeen-day limitation and consisting of the words ‘to receive pay therefor’ and applying the plain meaning and common usage rules of statutory construction, … we interpret the pay entitlement to apply to no more than the first seventeen calendar days of an annual tour of duty. Read in a straightforward manner, and according to its common and approved usage, the language of Sect. 59 supports the conclusion that the purpose of the portion of the statute under review is to protect against loss of the ordinary remuneration which would have been paid during the first seventeen calendar days of an annual tour of duty. This construction is supported by case law holding that ‘the word “day” when not qualified means a calendar day.’ … There is nothing in the statute which indicates that the word ‘day’ is to be construed as a work day or that the period of entitlement to pay should extend for varying periods of time beyond the first seventeen calendar days of an annual tour of duty, depending on the number of an employee’s work days that fall within those seventeen days.”

Glass, et al. v. City of Lynn, et al. (Lawyers Weekly No. 11-113-00) (10 pages) (Jacobs, J.) (Appeals Court) Case heard by Richard E. Welch III, J., on motions for summary judgment. David F. Grunebaum and Thomas J. Marcoline for the defendants; Stephen C. Pfaff for the plaintiffs (Docket No. 98-P-197).