Tetreault v. Board of Selectmen of Lynnfield

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21-P-1109 Appeals Court

MARK TETREAULT vs. BOARD OF SELECTMEN OF LYNNFIELD.

No. 21-P-1109.

Essex. November 30, 2022. – February 24, 2023.

Present: Neyman, Desmond, & Grant, JJ.

Municipal Corporations, Fire department, Charter, By-laws and
ordinances. Contract, Employment. Public Employment.
Fire Fighter, Appointment. Practice, Civil, Summary
judgment, Declaratory proceeding. Statute, Construction.

Civil action commenced in the Superior Court Department on
August 6, 2018.

The case was heard by C. William Barrett, J., on motions
for summary judgment.

Devin R. McDonough for the defendant.
Andrew J. Gambaccini for the plaintiff.

GRANT, J. The plaintiff, Mark Tetreault, maintains that

when he signed an employment contract as fire chief of the town

of Lynnfield (town), he believed that he would be granted a

lifetime appointment by G. L. c. 48, § 42, colloquially known as

the “strong chief” statute. That employment contract provided
2

that it was terminable at the end of its term by either party on

proper notice. After the town gave him notice of its intent not

to renew his contract at the end of his fifth year as fire

chief, Tetreault sued the town seeking declaratory relief.

Ruling on cross motions for summary judgment, a judge allowed

Tetreault's motion and denied the town's motion. The judge

ordered and declared that the town's board of selectmen (board)

violated the strong chief statute, the town charter, and the

personnel bylaws of the town's municipal code by removing

Tetreault as chief without a hearing and the establishment of

cause. Because what happened was a nonrenewal of Tetreault's

contract as permitted by its terms and not a removal from office

within the meaning of the strong chief statute, we reverse.

Background. In reviewing a grant of summary judgment, we

recite the facts in the light most favorable to the town, the

nonmoving party against which summary judgment was entered. See

Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202,

203 (1991). See also Flint v. Boston, 94 Mass. App. Ct. 298,

303 (2018). We derive the facts from the summary judgment

record, including the statements of those facts that the parties

have agreed are undisputed.

1. Lynnfield's government and fire department. In

establishing a fire department, a town may choose from a variety

of administrative models set forth in local option statutes.
3

See, e.g., G. L. c. 48, §§ 42, 42A, 58. In 1922, the town voted

to accept one such statute, the predecessor law to the strong

chief statute. See St. 1920, c. 591, § 27, now codified at

G. L. c. 48, § 42. The strong chief statute and its

counterpart, the so-called “weak chief” statute, establish the

most common models for fire departments in Massachusetts. As

the name implies, strong chiefs have "full and absolute

authority" to administer fire departments established under

their control. G. L. c. 48, § 42. Among other duties, strong

chiefs appoint deputy chiefs, officers, and firefighters; set

the compensation of the permanent and call members of the

department subject to the approval of the board of selectmen;

and make all rules and regulations for the operation of the

department. See Atkinson v. Ipswich, 34 Mass. App. Ct. 663, 664

(1993). The town codified the duties of its strong chief in its

municipal code. See Lynnfield Municipal Code § 335-3. Under

the strong chief statute, the chief "may be removed for cause by

the selectmen at any time after a hearing." G. L. c. 48, § 42.

Strong chiefs in turn "may remove [appointed subordinates] at

any time for cause and after a hearing."1 Id.

1 The subordinate members of the town's fire department are
unionized, but the collective bargaining agreement does not
grant them tenure. The provisions of the civil service system,
G. L. c. 31, do not apply to the town's fire department.
4

In towns that have accepted the weak chief model, the

selectmen establish the fire department, appoint the chief and

the officers and firefighters, fix their salaries, and make the

regulations governing the department. See G. L. c. 48, § 42A,

inserted by St. 1973, c. 1048, § 2. In a town using the weak

chief model that is not subject to the civil service statute,

G. L. c. 31, the weak chief serves "at [the] pleasure" of the

selectmen, G. L. c. 48, § 42A, who need not show cause before

removing the weak chief.

As the town and Tetreault did here, and as discussed in

more detail below, a municipality may also enter into a contract

that sets "the salary, fringe benefits, and other conditions of

employment, including but not limited to, severance pay [and]

. . . conditions of discipline, termination, dismissal, and

reappointment . . . for its . . . fire chief." G. L. c. 41,

§ 108O, as amended by St. 2000, c. 423, §§ 1, 2.

In addition, the town's charter provides certain

protections to employees, including the fire chief. Section

5-1(b) of the charter states that the board may appoint certain

town officers, including the fire chief, "for indefinite terms."

See Atkinson, 34 Mass. App. Ct. at 665 (fire chief is town

officer). Section 5-5-1 of the charter permits the board "to

rescind, for cause, any appointment" to office, so long as the

board gives written notice to the appointee of the board's
5

intention, the reasons for the proposed removal, and the right

to be heard at a public hearing, if requested.

Similarly, the town's personnel bylaws provide protections

to employees, including the fire chief. See Lynnfield Personnel

Bylaws § 62-3. Employees may not be "discharge[d]" without

written notice of the proposed reasons for the discharge, "a[n]

explanation of the evidence upon which the charges are based,"

and an opportunity to rebut the charges. Lynnfield Personnel

Bylaws § 62-57(B).

2. Tetreault's employment. In December 2013, the board

appointed Tetreault as the town's fire chief "subject to the

successful negotiation of an employment contract." During those

negotiations, in discussing the contract provision that he serve

as an employee at will during an initial six-month probationary

period, Tetreault told the town administrator that it was his

understanding that under the strong chief statute, a chief "only

could be terminated for cause." Tetreault asked to include in

the contract language that provided that "[n]othing in this

agreement shall diminish the authority, duty, and protections

granted under [G. L. c. 48, § 42]," and that the contract was

"in accordance with [G. L. c. 41, § 108O]."2 The town

2 The contract was based on a template available online
through the fire chiefs associations of New Hampshire and
Massachusetts. Tetreault did not have an attorney review the
contract.
6

administrator declined to do so, and no reference to either

statute was included in the contract.

The negotiations culminated in a contract between Tetreault

and the town dated January 16, 2014. Paragraph 12.B of the

contract provided that after the initial six-month probationary

period, Tetreault "may be disciplined or discharged only for

just cause, upon proper notice and only after a hearing."

Paragraph 18 of the contract provided that its term was

initially for three years, until December 31, 2016, at which

point the contract automatically self-renewed for one-year

periods "[u]nless either party provide[d] written notice to the

other of its intention to renegotiate and/or not to renew this

contract no less than six (6) months prior to the end of its

initial or any extended terms."

As the town's fire chief, Tetreault successfully completed

the probationary period and the initial three-year term, after

which the employment contract self-renewed for two one-year

periods. For over four years, the board never disciplined

Tetreault, nor informed him that his conduct gave it cause for

his removal.

In June 2018, the board voted "not to renew" Tetreault's

contract beyond December 31, 2018. By letter dated June 26,

2018, the board gave notice to Tetreault, consistent with

paragraph 18.B of his contract, of its intent "not to renew" his
7

contract. The board gave no reason for its decision and refused

to provide Tetreault with a hearing on the matter.

In August 2018, Tetreault filed a wrongful termination

action in the Superior Court, seeking injunctive relief

preventing the town from removing him as fire chief and a

judgment declaring that the strong chief statute, the town

charter, and his employment contract provided that he shall

remain fire chief unless removed for cause. See G. L. c. 231A,

§§ 1, 2. A motion judge denied Tetreault's request for

injunctive relief; Tetreault did not appeal that ruling, and

that claim is not before us. The town subsequently paid

Tetreault three months' salary as severance pay as required by

the contract,3 and in January 2019 he began working as fire chief

of a town in New Hampshire.

Another Superior Court judge granted summary judgment

declaring that the town violated the strong chief statute, as

well as its own charter and bylaws, by removing Tetreault as

fire chief without first providing him with a hearing and

showing cause for the removal.4 From the language of the strong

3 Paragraph 18.C of the contract provided: "In the event
the [chief] is not reappointed . . . , the [town] agrees to pay
the [chief], as liquidated damages, a lump sum severance payment
equal to (3) months' salary."

4 Near the very end of Tetreault's contract term, on
December 20, 2018, the town placed him on administrative leave
pending an investigation into an unrelated incident. In its
8

chief statute that a chief "may be removed for cause by the

[board] at any time after a hearing," G. L. c. 48, § 42, the

judge concluded that it was "plain and unambiguous" that

Tetreault was entitled to a hearing "prior to termination." The

town appealed.

Discussion. 1. Standard of review. We review de novo the

order granting summary judgment. See City Council of

Springfield v. Mayor of Springfield, 489 Mass. 184, 187 (2022).

No material fact is in dispute, and both parties agree that the

appeal turns on the construction of the strong chief statute,

the town charter and bylaws, and Tetreault's employment

contract. Interpretation of each of those sources is a question

of law.

2. The strong chief statute. "Statutory interpretation is

a question of law for the court."5 Boston Police Patrolmen's

brief, the town argued that the incident amounted to just cause
to terminate Tetreault, thereby mooting this appeal. At oral
argument the town abandoned that argument, and we do not reach
it.
5 To the extent that Tetreault bases his claim on affidavits

of two retired fire chiefs as to their understanding of the
meaning of the strong chief statute and G. L. c. 41, § 108O,
those affidavits are not evidence of legislative intent. See
McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 799
(1979), S.C., 380 Mass. 263 (1980) ("postenactment, private
views of citizens supporting legislation are not relevant
legislative history"). See also Administrative Justice of the
Hous. Court Dep't v. Commissioner of Admin., 391 Mass. 198, 204-
205 (1984) (declining to consider as legislative history
statements of legislators which plaintiff asserted showed their
punitive motive to deny him tenure).
9

Ass'n v. Boston, 435 Mass. 718, 719 (2002). In interpreting a

statute, our primary goal is "to effectuate the intent of the

Legislature in enacting it" (citation omitted). Water Dep't of

Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744

(2010). "[T]he plain language of the statute" is the "principal

source of insight into legislative intent" (quotations and

citation omitted). HSBC Bank USA, N.A. v. Morris, 490 Mass.

322, 332 (2022). "Ordinarily, where the language of a statute

is plain and unambiguous, it is conclusive as to legislative

intent" (citation omitted). City Council of Springfield, 489

Mass. at 187. However, where the statutory language is not

clear, "familiar principles of statutory construction guide our

interpretation" (citation omitted). Patel v. 7-Eleven, Inc.,

489 Mass. 356, 362 (2022). See Boston Police Patrolmen's Ass'n,

supra at 720 (court may consider "cause of [statute's]

enactment, the mischief or imperfection to be remedied and the

main object to be accomplished, to the end that the purpose of

its framers may be effectuated" [quotation and citation

omitted]). An overarching principle of statutory construction

requires courts to "take into account the interrelationship of

different statutes," with the goal of harmonizing other statutes

so that they do not "undercut each other" (citation omitted).

Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 620

(2019).
10

a. Language of the strong chief statute. The strong chief

statute states: "[The fire chief] may be removed for cause by

the selectmen at any time after a hearing." G. L. c. 48, § 42.

Tetreault reads that sentence to grant him a lifetime

appointment, and argues that by removing him without a hearing

and a finding of cause, the town violated the statute. He

contends that any provisions of his contract that conflicted

with that grant of a lifetime appointment were "impermissible"

and "unenforceable."

Under the language of the strong chief statute, G. L.

c. 48, § 42, Tetreault was entitled to a hearing and a

demonstration of cause if he was "removed" from the position of

fire chief. The word "remove" is not defined in the strong

chief statute. In the employment context, that word ordinarily

connotes a forced dismissal or termination. See Webster's Third

New International Dictionary 1921 (2002) (to remove means "to

force (one) to leave a place or to go away: as . . . to dismiss

from office"). See generally 4 E. McQuillin, Municipal

Corporations § 12:321, at 663 (2019) ("failure to reappoint an

officer upon the expiration of a definite term, and the

selection of another to fill the office does not constitute a

removal from office"). Here, Tetreault was not removed from his

position while the contract was in effect, but rather given

notice in accordance with his contract more than six months
11

before the end of its term that the board would not renew it.

See Dooling v. Fire Comm'r of Malden, 309 Mass. 156, 160-161

(1941) (fire commissioner's abolishment of fire chief position

pursuant to St. 1892, c. 182 was not removal of chief from

office under G. L. c. 48, § 58). Courts interpreting other

sections of the General Laws have distinguished nonrenewals of

contracts from removals and dismissals.6 Tetreault's employment

came to a natural end under the terms of the mutually agreed-

upon contract after the board voted not to renew his contract.

We conclude that the board did not remove Tetreault within the

meaning of the statute, and therefore no statutory violation

occurred.

Trying to find support for his claim that the strong chief

statute granted him a lifetime appointment, Tetreault points to

its last sentence, which states: "The appointment of the chief

of the fire department in any town or district having a

population of five thousand or less may be for a period of three

years." G. L. c. 48, § 42, as amended through St. 1981, c. 322.

6 See, e.g., Massachusetts Coalition of Police, Local 165,
AFL-CIO v. Northborough, 416 Mass. 252, 255 (1993) (selectmen's
"failure to reappoint [police officer] is not a 'removal' . . .
and therefore a failure to reappoint a police officer . . . does
not require a hearing and determination concerning just cause to
remove"); Downing v. Lowell, 50 Mass. App. Ct. 779, 782-783
(2001) (statutory safeguards available to school principals in
event of dismissal not available where "contract simply
expire[s]. . . . A dismissal is not the same as a nonrenewal of
a contract").
12

That language does not apply to Lynnfield, the population of

which has exceeded five thousand at all relevant times. But

from it Tetreault argues that, by permitting appointment of a

small-town fire chief for a three-year term, the Legislature

must have intended for larger towns' strong chiefs to have no

limit on their terms of office. We are not persuaded. That

sentence states that small towns "may" appoint fire chiefs for

three-year terms, and does not have a mandatory effect, even as

to small-town chiefs. See Shea v. Selectmen of Ware, 34 Mass.

App. Ct. 333, 335-336 (1993) ("'may' is not an apt word to

express a positive mandate . . . [and] [t]he use of the word

. . . imports the existence of discretion" [quotation and

citation omitted]). Beyond that, it says nothing about the term

of a chief in a larger town. See Beach Assocs., Inc. v. Fauser,

9 Mass. App. Ct. 386, 389-390 (1980) (courts "construe

permissive language of a statute as mandatory only if it appears

that the Legislature intended such an interpretation").

Besides looking at the wording of the strong chief statute,

we note what it does not say. The word "tenure," or similar

words that would import lifetime appointment, do not appear in

the strong chief statute, which focuses primarily on the

authority and duties of a strong fire chief. We are not at

liberty to "add words to a statute that the Legislature did not

put there, either by inadvertent omission or by design." Thomas
13

v. Department of State Police, 61 Mass. App. Ct. 747, 753

(2004), quoting Commonwealth v. McLeod, 437 Mass. 286, 294

(2002). See Harrison v. Massachusetts Bay Transp. Auth., 101

Mass. App. Ct. 659, 670 (2022). Had the Legislature intended

for the strong chief statute to bestow lifetime appointments on

fire chiefs, "[s]o important a matter would [not] have been

passed over in silence." Thomas, supra at 754, quoting Opinion

of the Justices, 308 Mass. 601, 613 (1941). Courts will not

read a promise of lifetime employment into a statute or contract

"without the strong proof and explicit expressions of intent

usually required to show such appointment." Parker v. North

Brookfield, 68 Mass. App. Ct. 235, 239 (2007). "[A] lifetime

contract [of employment] is so extraordinary that it takes

strong proof to establish one . . . [and] particularly explicit

expressions of intent are required to bind an employer to an

employment contract of extraordinary duration." O'Brien v.

Analog Devices, Inc., 34 Mass. App. Ct. 905, 906-907 (1993).

Tetreault argues that the strong chief statute must be read

in conjunction with G. L. c. 41, § 108O, which provides that a

town may enter into an employment contract that provides a fire

chief with benefits greater than those provided to other town

employees pursuant to local bylaws or ordinances. Section 108O

specifically states that such an employment contract may set

"conditions of . . . reappointment" for the fire chief, and that
14

"[n]othing contained in this section shall grant tenure to such

[fire chief]." Thus, § 108O does not affect our interpretation

of the language of Tetreault's contract permitting the town "not

to renew" the contract as meaning something different from

"remov[al] for cause" in the strong chief statute, G. L. c. 48,

§ 42.

b. Related statutes. In construing the strong chief

statute, we also look to related statutes. Where possible, we

must harmonize statutes "to give rise to a consistent body of

law." Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994).

First, we make note of the weak chief statute, G. L. c. 48,

§ 42A. As mentioned above, that statute provides that in a town

that has accepted it and that is not subject to the civil

service statute, the weak chief serves "at [the] pleasure" of

the selectmen. Contrary to Tetreault's argument, that language

in the weak chief statute does not require us to interpret the

strong chief statute to confer a lifetime appointment. See

Camargo's Case, 479 Mass. 492, 499-501 (2018) (definition of

"employee" in independent contractor statute did not apply to

worker's compensation statute, where statutes serve "different,

albeit related, purposes"). See also 2B N.J. Singer & J.D.

Shambie Singer, Statutes and Statutory Construction § 51.3 (7th

ed. 2012) (similarly construing statutes that relate to same

class of persons).
15

Second, in interpreting the strong chief statute, we

consider G. L. c. 48, § 58, inserted by St. 1916, c. 291. It

provides that in towns accepting its provisions, fire chiefs

"shall hold [their] office[s] continuously during good behavior

unless incapacitated by physical or mental disability to perform

the duties of [their] positions." The town has not accepted the

provisions of G. L. c. 48, § 58, and so, although Tetreault

cites to it in his brief, it does not apply to him. In fact,

that statute shows that the Legislature knew how to craft

language granting fire chiefs lifetime appointments, and

therefore the omission of similar language from the strong chief

statute was not an oversight.

Third, the tenure act, G. L. c. 41, § 127, inserted by St.

1973, c. 170, permits incumbents of most municipal appointive

offices, including fire chiefs, to apply for tenure after "at

least five consecutive years" of service. The tenure

application is subject to approval by vote of the board of

selectmen, and then by the town electorate. See G. L. c. 41,

§§ 129, 131. Although Tetreault cites to those statutes, they

do not apply to him, as he neither served five years nor applied

for tenure. Cf. Williams v. Selectmen of Wellfleet, 421 Mass.

438, 440-441 (1995) (construing G. L. c. 41, § 131, and

affirmative vote on town's ballot question to provide tenure to

its police officers with more than five years of service). The
16

language of those statutes, providing the board and the town

voters with a mechanism for granting tenure to most town

officers after five years, cuts against reading a lifetime

appointment into the strong chief statute.

Fourth, we note that the civil service statute, G. L.

c. 31, § 41, inserted by St. 1978, c. 393, § 11, provides that

employees who are subject to its protection "shall not be

discharged [or] removed" without just cause, notice, and a full

hearing. See, e.g., Brookline v. Alston, 487 Mass. 278, 292

(2021). That statute defines discharge to include "involuntary

separation" from employment. G. L. c. 31, § 1. Although

Tetreault cites to the civil service statute, as noted above, it

does not apply to the town's fire department. See note 1,

supra. From the language of the civil service statute, it is

apparent that the Legislature knew how to broadly define

discharge to encompass an involuntary separation from

employment, and therefore when it wrote the strong chief statute

to require hearings for the narrower category of chiefs "removed

for cause," G. L. c. 48, § 42, it did so intentionally.

Finally, an analogous statute applicable to police chiefs

sheds light on the Legislature's intent in the strong fire chief

statute. General Laws c. 41, § 21A, inserted by St. 1985, c.

210, provides that a police chief "shall not be removed from

such position until a hearing is held by the appointing
17

authority," and, "[f]or the purpose of this section only[,]

failure of reappointment shall be deemed to be a removal." The

language of that statute shows that the Legislature understood

the difference between removal and failure of reappointment, and

it chose to treat police chiefs differently from how it treated

fire chiefs in the strong chief statute.

c. Purpose of strong chief statute. In construing the

strong chief statute, we also consider its purpose. Tetreault

suggests that its purpose was to protect fire chiefs from

"political machinations" and to allow them independence in the

discharge of their duties. He argues that this purpose would be

undermined by our interpretation. We disagree. The removal for

cause and due process provisions of the strong chief statute

grant fire chiefs significant protection from "political

pressure and arbitrary separation" (citation omitted).7 School

7 To the extent that Tetreault contends that based on the
strong chief statute he had a constitutionally protected
property interest in his fire chief position, he makes the claim
only perfunctorily. This perfunctory treatment does not rise to
the level of adequate appellate argument, and we do not "pass
upon" the issue. See Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019). We note that because the
town did not violate the strong chief statute, no constitutional
violation resulted. See Smith v. Commissioner of Mental
Retardation, 409 Mass. 545, 549 (1991) ("State statute that
merely condition[s] an employee's removal on compliance with
certain specified procedures, does not establish a
constitutionally protected property interest in the position"
[quotation and citation omitted]).
18

Comm. of Brockton v. Civil Serv. Comm'n, 43 Mass. App. Ct. 486,

488 (1997).

Even if the strong chief statute could be interpreted to

provide fire chiefs with lifetime tenure -- a doubtful

proposition -- Tetreault waived any such statutory right by

entering into the employment contract. When he did so, he knew

that the contract had language and terms that conflicted with

what he professes was his belief about the meaning of the strong

chief statute. As we have said, however, nothing would prohibit

a fire chief from entering into an employment contract on terms

that differ from the strong chief statute, and G. L. c. 41,

§ 108O, expressly permits that course of action. Contrast

Parker v. EnerNOC, Inc., 484 Mass. 128, 133 (2020) (Wage Act,

G. L. c. 149, §§ 148, 148A, & 150, "forbids 'special contracts'

between an employer and employee that purport to exempt the

employer from the requirements of the act").

3. Town charter and personnel bylaws. For similar

reasons, we do not construe the language of the town charter to

confer lifetime tenure on Tetreault. Section 5-1(b) of the

charter authorized the board to appoint certain officers,

including all department heads and the fire chief, for

"indefinite terms." We defer to the town's reasonable

interpretation of its own charter. See Atkinson, 34 Mass. App.

Ct. at 666. The town construed indefinite terms to mean terms
19

that were not made definite by the charter, rather than as

conferring lifetime tenure on the many appointees to whom that

section applied. In any event, the town and Tetreault then

entered into the employment contract, which permitted either

party to decline to renew it upon proper notice. General Laws

c. 41, § 108O, provides that a fire chief's employment contract

"shall prevail over any conflicting provision of any local

personnel by-law, ordinance, rule or regulation."8

Nor do we construe the language of either the town charter

or the personnel bylaws to preclude the board from declining to

renew Tetreault's contract. Section 5-5-1 of the charter

provided that in order to "rescind" an appointment, the board

must give notice to the appointee of the reasons for removal and

the opportunity for a public hearing. Section 62-57(B) of the

personnel bylaws provided that employees may not be "discharged"

without written notice of the reasons and an opportunity to

rebut them. We defer to the town's reasonable interpretations

of its charter, see Atkinson, 34 Mass. App. Ct. at 666, and its

bylaws, see Styller v. Zoning Bd. of Appeals of Lynnfield, 487

Mass. 588, 600 (2021). Under those interpretations, just as the

8 We do not pause to consider whether the language of the
contract also prevails over that of the charter. In a
postargument filing, the parties agreed that "whether an
employment contract trumps a municipal charter . . . is not an
issue in this case."
20

town did not "remove" Tetreault within the meaning of the strong

chief statute, so too it did not "rescind" his appointment

within the meaning of the charter or "discharge" him within the

meaning of the bylaws.

Conclusion. The judgment is reversed. The case is

remanded to the Superior Court where a new judgment shall enter

declaring that the town did not violate the strong chief

statute, the town charter, or the town's personnel bylaws by

electing in 2018 not to renew Tetreault's contract.

So ordered.