June 12. 1991 Number 5

June 12. 1991 Number 5 Peter Nessen. Secretary Executive Office tor Administration and Finance State House Room 373 Boston. MA 02133 David A. Haley Personnel Administrator One Ashburton Place. Second Floor Boston. MA 02108 Dear Secretary Nessen and Mr. Haley: You have asked my opinion as to the interpretation of a provision of G.L. c. 31. § 33 (1988 ed.) that governs the calculation of seniority in connection with layoffs of firefighters. This issue has arisen because fiscal emergencies are causing several Massachusetts cities and towns to lay off firefighters. The civil service laws require layoffs to be implemented according to seniority as calculated under section 33. See G.L. c. 31. § 39. Several cities and towns therefore have sought guidance on the proper interpretation of section 33 from the Personnel Administrator, who is charged with the administrafion and enforcement of the civil service law and rules. See G.L. c. 31. § § 5(a). 77. No interpretation of section 33 can avert the layoffs of firefighters or limit their extent, but a proper interpretadon is necessary in order to determine which firefighters must be laid off Secfion 33 sets out numerous rules for calculadng the seniority of civil service employees. Various paragraphs of that secdon apply differing rules for calculating seniority to different categories of employees. These categories are primarily defined according to how the employee came to occupy his or her present civil service position. The third paragraph, for example, applies to (among others) those employees who obtained their posidons through an original or promodonal appointment, either within a city or town or from one city or town to another. The fourth paragraph applies to (among others) those employees who obtained their positions through a transfer from one city or town to another. Secdon 33 also contains a sentence that specifically governs firefighter seniority. The Legislature inserted this provision in the fourth paragraph of section 33. You have asked whether that provision applies only to employees who transferred into their current firefighter posidons as des- cribed in the fourth paragraph, or whether the provision also applies to employees who obtained their positions as described in the third paragraph or the other paragraphs of section 33. For the reasons discussed below. I conclude that the firefighter provision applies only to those firefighters who transferred into their current positions as described in the fourth paragraph of secdon 33. If the firefighter provision had been set off in a separate paragraph of sec- tion 33. 1 would conclude that it was intended to except firefighters from any other conflicting rules set forth in section 33. This would also be true if the provision for firefighters were read in isolation from the paragraph in which 104 P.D. 12 it appears. But every word or phrase of a statute must be read in context, see Attorney General v. School Committee of Essex. 387 Mass. 326. 337 (1982). and without overemphasizing its effect on the remainder of the statute. See Massachusetts Commission Against Discrimination v. Liberty Mutual Insurance Co.. 371 Mass. 186. 190-91 (1976). The applicability of a sentence of a statute may be unclear when the sentence stands alone, but more clear when the sentence is viewed in its statutory context. See. e.g.. James J. Welch & Co. V. Deputy Commissioner ol Capital Planning and Operations. 387 Mass. 662. 664 (1982). Here, the placement of the provision for firefighters in the fourth paragraph, viewed against the overall structure of section 33. indicates that the Legislature intended that provision to affect only those firefighters who otherwise fall within the terms of that paragraph. St. 1987. c. 252. which inserted the provision for firefighters into section 33. expressly stated that "[t]he fourth paragraph of section 33" was to be amended by adding the sentence concerning firefighters. It is a basic princi- ple of statutory construction that wherever possible, every word of a statute must be given some meaning: no word should be considered superfluous. Risk Management Foundation of the Harvard Medical Institutions. Inc. v. Commissioner of Insurance. 407 Mass. 498. 503 (1990): International Organization ofMasters. Mates & Pilots v. Woods Hole. Martha 's Vineyard & Nantucket Steamship Authority. 392 Mass. 811. 813 (1984). Here, the Legislature's explicit decision to place the provision for firefighters in the fourth paragraph indicates an intention to limit the effect of that provision to that paragraph, rather than to section 33 generally. The placement of the provision for firefighters at the end of a paragraph rather than as a separate paragraph is similar to the effect of punctuation in a statute. "[M]atters of punctuafion are not necessarily determinative and should not be allowed to defeat the true purpose and meaning of a statute." Globe Newspaper Co. v. Boston Retirement Board. 388 Mass. 427, 432 (1983): see Schlesinger v. Merrill Lynch. Pierce. Fenner& Smith. Inc.. 409 Mass. 514. 518 ( 1991). But where, as here, "the true purpose and meaning" of the provision at issue are unclear. "'[p]unctuation . . . may be resorted to when it tends to throw light upon the meaning of the language."' Moulton v. Brookline Rent Control Board. 385 Mass. 228. 232 (1982) (quoting Greenough v. Phoenix Insurance Co.. 206 Mass. 247. 252 (1910)). Punctua- tion and paragraphing, taken together, may also shed some light on the meaning of a statute. See Haynes v. Grasso. 353 Mass. 731. 735 (1968). Because the scope of the firefighter provision is not clear, the insertion of that provision into an existing paragraph rather than as a separate P.D. 12 105 paragraph is entitled to some weight. Moreover, in two respects, the special provision for firefighters constitutes an exception to the general approach of section 33, suggesting that the pro- vision should be applied narrowly rather than to the entire section. First, as noted above, section 33 generally makes the choice of the applicable seniority rule turn on how the employee came to occupy his or her current position (i.e., through an original or promotional appointment, a transfer, reinstatement, etc.) rather than on what kinds of duties the position involves. The firefighter provision, however, makes the seniority rule turn on the fact that the employee is a firefighter rather than some other type of employee, and not on how the employee came to occupy his or her position. Second, section 33 generally permits the employee, once specified con- ditions are met, to include periods of prior civil service employment and/or absence from the payroll in calculating length of service in the current posi- tion. The firefighter provision, in contrast, bars those firefighters to whom it applies from including any prior service in other civil service positions in calculating their length of service for the purpose of a reduction in rank or force. In these two ways, therefore, the firefighter provision is an exception to the general approach of section 33. The Supreme Judicial Court has held that "'[e]xceptions to a general law, whether statutory or consfitutional, should be strictly construed.'" Commonwealth v. Germano, 379 Mass. 268, 272 (1979) {quoting Commonwealth v. Yee, 361 Mass. 533, 537 (1972); cifing Baker Transport, Inc. v. State Tax Commission, 371 Mass. 872, 877 (1977)). A strict construction of the firefighter provision requires applying it only to the paragraph in which it appears.' I have also considered the Legislature's approach to an earlier amend- ment to section 33. When in 1982 the Legislature amended section 33 to add a provision creating a special rule for layoffs after reemployment, the Legislature chose to set this rule off in a new and separate paragraph (the sixth paragraph) at the end of section 33. See St. 1982, c. 571. This suggests It might also be suggested that the firefighter provision should apply only within the fourth paragraph because of the rule of statutory construction that the effect of a modifying clause, provison, or exception is confined to the last antecedent unless there is something in the subject matter or dominant purpose that requires a different interpretation. E.g.. Moullon. 385 Mass. at 230-3 1 ( 1982). This is, however, in part a rule of grammatical construction. See id. It thus has diminished force where, as here, the exception being construed is not a clause within a sentence but instead is set off in a separate, grammatically complete sentence. 106 P.D. 12 that when the Legislature creates a special rule for the calculation of seniority for layoff purposes and intends that rule to be an exception to the entire remainder of section 33, the Legislature places the special rule in a separate paragraph. The Legislature's 1987 decision to place the firefighter provision in the fourth paragraph thus suggests that the Legislature did not intend the provision to apply generally to section 33. Cf. Commonwealth v. Galvin, 388 Mass. 326, 328-30 (1983) (construing statutory provision in light of overall structure of statute). This interpretation leads to a reasonable result. See School Committee of Greenfield v. Greenneld Education Association. 385 Mass. 70, 79-80 (1982) (noting that imprecise statute should be given reasonable construction). One of the apparent purposes of section 33 is to reward service with a par- ticular employer.- Under the interpretation reached here, firefighters who transfer from one city or town to another may not include prior service when determining seniority for purposes of reductions in rank or force, but those employees who become firefighters through an original or pro- motional appointment or a transfer within a city or town may include prior service, as a reward for continuing service to the city or town. This inter- pretation seems most consistent with the policies embodied in section 33.3 The Legislature could certainly have reached a different conclusion as to the appropriate rule for calculating firefighter seniority. The Legislature could have determined, for example, that the controlling factor for all firefighters should be the length of service to a particular city or town s fire ~ This is reflected in the different rules stated in the third and fourth paragraphs regarding how long employees who receive different types of original or promotional appointments or transfers must serve in their new positions before being permitted to count their prior service. On the municipal level, employees who receive appointments or transfers within the same department of a city or town are treated most favorably; employees who request and obtain transfers from one city or town to another are treated least favorably. ' I recognize that, based on the conclusion I reach here, an employee who became a firefigher through an original orpromotional appointment from a position in one city or town to a firefighter position in another city or town would, in accordance with the third paragraph of section 33. be permitted to include the prior service in calculating seniority as a firefighter. This may appear to be in tension with the rule slated in paragraph four for employees who transfer from a fircfighting position in one city or town to a firefighting position in another city or town. The Legislature may have concluded, however, that the original and pro- motion appointments just referred to were sufficiently rare so as not to warrant special attention in section 33.Seegenera//yCommonwea///jv, Henry sDrvwa/ZCo.. 366 Mass. 539. 546 (1974) (holding that Legislature may proceed one step at a time, addressing those problems it deems most acute). It is plain that the Legisla- ture adopted a step-by-step approach to the problem of civil service employment changes from one city or town to another. The Legislature chose to establish a special rule for firefighters who changed their employ- ment in this fashion, rather than for all civil service employees in the public safety field or for all civil service employees of cities and towns. P.D. 12 107 department, rather than the combined length of service to all departments of a city or town. Alternatively, the Legislature coiild have concluded that firefighting is a unique occupation involving critical skills affecting the public safety, and therefore that total length of service as a firefighter should be the sole criterion for determining firefighters' seniority. But the context, history, and structure of section 33 indicate that the Legislature chose a third option: to make service to a particular fire deparment determinative only in the limited instances described by paragraph four of section 33. For these reasons, I conclude that the special provision for firefighters in the final sentence ofthe fourth paragraph of section 33 applies only to those firefighters who are otherwise within the terms of that paragraph. Sincerely, SCOTT HARSHBARGER STATE LIBRARY OF MASSACHUSETTS 3 6855 0000 5255