ee aap ee spceer nanan Trial Court of Massachusetts 4e7cvo0364 The Superior Court CASE MANE eae Mare Savage et al vs. City of Springfield, Massachusetts etal Laura $ Gentile, Cletk of Courts TO. COURT NAME & ADDRESS File Copy Hampden County Superior Court 7 Hall of Justice - 60 State Street P.O. Box 559 Springfield, MA 01102 You are hereby notified that on 02/14/2017 the following entry was made on the above referenced docket: Endorsement on Motion to dismiss Amended Complaint (##16.0): ALLOWED. insofar as the amended complaint seeks order compelling enforcement, and is otherwise DENIED. See Memorandum of Decision and Order dated 2/14/17. DRTERSED | aasoowTe METER ABDETANT CLERK sesson ron 02/14/2017 Hon. Constance M Sweeney (413)738-8017CLERK'S NOTICE 4679CV00364 Trial Court of Massachusetts The Superior Court Mare Savage et al vs. City of Springfield, Massachusetts et al Laura § Gentile, Clerk of Courts "ile Copy ‘COURT NAVE 8 ADORESS Hampden County Superior Court Hall of Justice - 50 Stale Street P.O. Box 669 Springfield, MA 01102 referenced docket: Association of Firefighters (##18.0); DENIED ‘DATE ISSUED "ASSOGIATE JUSTIOES ASSISTANT CLERK ‘See Memorandum of Decision and Order dated 2/14/17. You ate hereby nolified that on 02/14/2017 the following entry was made on the above Endorsement on Motion for Judgment on the Pleadings of the Defendant [Intervener] Local 648, International 0242017 Hon. Constance if Sweeney BESSION PHONEH (413)735-6017CLERK'S NOTICE 1679Cvo00364 Marc Savage et al vs. City of Springfield, Massachusetts et al Trial Court of Massachusetts The Superior Court Laura $ Gentile, Clerk of Courts 76, File Copy ‘COURT NaaE RADDRESS Hampden County Superior Court Hall of Justice - 50 State Street P.O. Box 569 Springfield, MA 01102 You are hereby notified that on 02/14/2017 the following entry was made on the above referenced docket: Endorsement on Motion to dismiss the Plaintifis' Amended Complaint for Declaratory Relief (#19.0): DENIED. See Memorandum of Decision and Order dated 2/14/17. ‘BATEISSUED | ABEOGIATE JUSTICE ASBITANT CLERK 02/14/2017 Hon. Constance M Sweeney (413)735-6017COMMONWEALTH OF MASSACHUSETTS, HAMPDEN, ss. SUPERIOR COURT CIVIL ACTION NO. 16-364 NTY MARC SAVAGE and others! amperes nCEon BT Plaintifis SUPE LED s ges 14 20 CITY OF SPRINGFIELD and others? Ue Defendants CLERK OF and LOCAL 648, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, SPRINGFIELD ASSOCIATION OF FIRE FIGHTERS Intervener MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANTS' MOTIONS TO DISMISS AND THE INTERVENER'S MOTION FOR JUDGMENT ON THE PLEADINGS 1. Introduetion The plaintiffs, who are eleven registered voters’ in the City of Springfield, including Mare Savage, a captain in the Springfield Fire Department, brought this action pursuant to G. L.. 231A and G. L. c, 43B, § 14, seeking enforcement and a declaration of the validity of a municipal ordinance requiring that Fire Department employees be Springfield residents. That requirement is incorporated into collective bargaining agreements executed between the City of Herbert Powell, Michele Hyde, Richard 1. Greenberg, Nicole Baker, Shamone Cox, Myya T. Seago, Zaida Govan, Cynthia Tucker, William E. Blatch, and Frederick B. Lyons, Jr City of Springfield Fire Department, the Springfield Fire Chiefs Association, Joseph Conant, personally and in his capacity as Fire Commissioner of the City of Springfield Fire Department. tn accordance with G. L. c. 43B, § 14, the plaintfis have been granted leave to file this action. Mare ‘Savage also brings this action direetly under G. L. ¢. 231.Springfield and two unions: the Fire Chiefs Association of Springficld ("Fire Chiefs Association") which represents, inter alia, district chiefs, and Local 648, Association of Fire Fighters, AFL-CIO, Springfield Association of Fire Fighters ("Local 648"), representing captains and lower ranking fire fighters. Enforcement of the residency requirement would likely lead to the termination of noncompliant district chiefs and their replacement with the promotion of cligible employees such as Savage. ‘The defendants are the City of Springfield, its Fire Department, Joseph Conant, personally and in his capacity as Springfield's Fire Commissioner, and the Fire Chiefs Association, Local 648 has intervened as a defendant. The defendants and intervener challenge the enforcement of the ordinance imposing a residency requirement. Pending are (1) a motion by the City of Springfield, the Fire Department, and Conant (collectively referred to as "the municipal defendants") to dismiss the amended complaint pursuant to Mass. R. Civ. P. 12(b)(6); (2) a motion by Local 648 for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c); and (3) a motion by the Fire Chiefs Association to dismiss the amended complaint pursuant to Mass. R. Civ. P. 12(0)(6). 2. Background ‘The Springfield Residency Ordinances Since 1976, Springfield ordinances have imposed a residency requirement on at Ieast some of its employees, Except for the period of 1991-1995, the residency requirement applied to all city employees. During 1991-1995, the residency requirement applicable to Springfield Fire Department employees covered only the fire chief and the deputy fire chief. Apart from thatlimitation and insignificant variations, the amended ordinances have mandated that all city employees reside in Springfield and execute annual residency certifications, with noncompliance resulting in termination of employment.* On March 17, 1995, Springfield's residency ordinance was replaced with a requirement that all city employees, including the Fire Department's district chiefs, first employed on or after March 17, 1995, be and remain Springfield residents. § 3.08.010. Employees promoted on or afler March 17, 1995, had a one year grace period to become residents, the failure of which "shall be determined to be voluntary termination of employment."_§ 3.08.020. The ordinance further required employees to execute annual certificates of residency, such that any employee not certifying Springfield resideney "shall" cease to be an employee of the City. Section 3.08.040 of the 1995 ordinance states that, ""To the extent permissible by law, no collective bargaining agreement hereafter entered into by the city of Springfield shall contain any provision contrary to the provisions hercof, nor shall the absence of any provision with respect to the residency of any person hired after the date of such contract be deemed to prevent enforcement of this section." ‘The 1995 ordinance barred waivers of the residency requirement. It also mandated the As of August 10, 1976, the City of Springfield imposed a residency requirement for its fire fighters in Chapter 2, § 2-17 of the Revised Ordinances, providing that aterm and condition of employment ofall eity employees was that they become city residents within two years following the date of the employee's hire, promotion (or reappointment. Section 2-17 further provided that any employee wio thereafter moved out of Springfield would become disqualified as an employee and stricken from the payroll, and that each employee must certify annually his or her residency status. §§ 2-17 and 2-18. Effective June 6, 1978, Springfield’ residency requirement in Chapter 2, §§ 2-17 et seq. was amended in ‘ways immaterial to this action. In 1986, Springfield adopted a new revision and codification ofthe ordinances, but that version is not before me. Effective November 11, 1991, the Springfield residency ordinance was expressly made applicable to the fire chief and deputies, but was silent with respect to district chiefs (and itis unclear whether there were district chiefs at that time), and provided that Title 3 of the Revised Ordinances of the City of Springfield, 1986, as amended, was repealed in its entioty and that a new Chapter 3.08 was added. Pursuant to Chapter 3.08.010, "The head, deputy and assistant of any department of the city as well as any employee promoted to said positions shall, subject to fa one year grace period] 2s a term and condition of employment, maintain domicile inthe city..." 3 It } |creation of a seven member Residency Compliance Commis n to investigate, conduct hearings, make findings and to advise department heads regarding the termination of noncompliant employees. § 3.08.080. The 1995 version also established a Residency Compliance Unit tasked with investigating suspected violations of the residency requirement. §3.08.090. The 1995 residency ordinance provided that, "Should the terms of a collective bargaining agreement conflict with this chapter, the terms of the collective bargaining agreement shall prevail. (Prior code § 2-25)." In November of 2003 and May of 2009, Springfield amended its residency requirement in minor ways. In the current 2009 version, the residency requirement appears in Article Il, §§ 73-8 et seq. Sections 73-8 and 73-9 track exactly what had been §§ 3.08.10 and 3.08.020 of the 1995 ordinance. Like the 1995 version, the 2009 resideney ordinance calls for the establishment of a Residency Compliance Commission and a Residency Compliance Unit, although neither was ever operational. The only significant difference between the 1995 and current versions of the ordinance is that the current version is more lenient, as it provides for a waiver. "The provisions of this article may be waived by the Mayor with respect to any particular person or position, other than those for which residency is required by law, upon written determination that the taxpayers and residents of the City of Springfield would be better served through the hiring, appointment or promotion of a nonresident of the City of Springfield to a position. § 73-13. ‘The amended complaint is silent as to whether any Springfield mayor has issued written determinations to waive the residency requirements with respect to district chiefs. b. The Collective Bargaining Agreements The ordinances imposing the residency requirement have been incorporated by reference into the collective bargaining agreements executed between the City of Springfield and the twounions covering most fire fighters. Since July 1, 2000, the City of Springfield and the Fire Chiefs Association, to which district chiefs are members, have had a collective bargaining agreement in effect which contains the following residency provision at Art. 22,01: “Tis acknowledged and accepted as a term and condition of employment that all members of the bargaining unit shall comply with the Residency Requirements as set forth in the Revised Ordinances of the City of Springfield, [Chapter 2, Section] 2-17 et sseq., as amended, which Ordinance is hereby incorporated by reference and made part of this Agreement as if set forth in its entirety." Although Chapter 2, § 2-17, was the number of the residency ordinance from 1976 until 1986, see fr. 4 supra, the City of Springfield's Law Department issued an opinion in 2008 that this reference made the then current residency ordinance part of the collective bargaining agreement between the City of Springfield and the Fire Chiefs Association The Fire Chiefs Association's collective bargaining agreement exempts from the residency requirement employees hired before 1978. Article 22.02 of that agreement further provides, "The parties agreed to refer [the residency requirement] to a Joint Labor-Management Committee for review and discussior ‘The Fire Chiefs Association's agreement lays out a grievance procedure in which "An employee or the Association may file a grievance in the event of any dispute concerning solely the interpretation or application of this Agreement." Art. 3.01, Because Savage is not a member of the Fire Chiefs Association, he cannot file a grievance under that agreement. ‘The Fire Chiefs Association's collective bargaining agreement executed in 2000 has been amended to cover the three year period ending on June 30, 2012, and clarifies that it will remain in effect "during the period of negotiations until signing of a new Agreement or until ten day termination notice is given..." Art. 31.01.Savage's union, Local 648, and the City of Springfield have a collective bargaining agreement which has been in effect since July 1, 2013.’ With respect to the residency requirement, it reads: “Subject to the provisions of [G. L. c. 31, § 58°], all members of the bargaining unit . hired subsequent to August 20, 1979, shall be subject to whatever residency requirement the City may impose upon its employees generally." ‘Art. 10.02. The agreement further states, "The parties agree during the term of this Agreement [that] the issue of Residency will be the subject of joint labor management committee.” Art, 10.03. The Local 648 collective bargaining agreement at Art. 7.03 provides that "all matters and issues concerning the . .. conditions of employment between the City of Springfield and the Employees governed by the terms hereof are, and shall be governed exclusively by and limited to the terms and provisions of this Agreement, it being ‘understood and agreed that during the course of the negotiations preceding the execution of this Agreement, all matters and issues of interest to the parties here [have] been fully considered, negotiated, and are set forth herein.” The parties agreed that no other agreement, understanding, or alteration of the terms or provisions of their agreement would bind the parties unless it is mutually executed in writing, Arts, 7.01. The agreement confirms that any failure by either party to insist upon performance of the terms or conditions of the agreement "shall not be considered a waiver" of the right of either party to future performance. Art. 7.02 “The agreement states that it is in effect until midnight on June 30, 2016, and thereafter shall automatically renew for yearly terms unless either party gives notice of termination. No party has submitted a copy of any collective bargaining agreements between the City of Springfield and Local 648 in effect prior to 2013, “The Civil Service Laws, at G. L. c. 31, § 58, provides in pertinent part thet with respect to original appointments, "any person who receives an appointment to the. fire force ofa city ... shall within nine months after his ‘appointment establish his residence within such city... or at any other place in the commonwealth that is ‘within ten miles ofthe perimeter of such city ... ; provided, however, that a city... may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 1 SOE.Under the collective bargaining agreement, Savage, as an employee and member of Local 648, "may file a grievance in the event of any dispute concerning solely the interpretation [or] application of this Agreement" within 12 days after the occurrence of the basis of the grievance or of the employee's knowledge of it. Art, 22. That grievance procedure can be pursued through several steps all the way to arbitration, in which case the arbitrator has no power to alter, amend, add to or detract from the language of the collective bargaining agreement. Art. 22.04. ¢. The City's Failure to Enforce the Residency Requirement Within the Springfield Fire Department are Fire Commissioner Conant, a deputy chief, a fire marshal, eight district chiefs, captains, and lower ranking fire fighters. ‘The amended complaint does not identify which district chiefs are not Springfield residents or when they were originally appointed to the Springfield Fire Department, but states that the district chiefs’ promotions occurred between 2004 and 2015. ‘Savage sat for promotional exams for the positions of district chief and deputy chief, passed both, and ranks on the district chief list. Tf there were a district chief opening, Savage would be eligible for promotion to that position. ‘The City of Springfield has for many years failed to enforce its residency ordinance. On October 24, 2014, Savage requested clarification regarding the residency requirement from the then Springfield Fire Department Deputy Chief of Administration and asked that the City determine the residency of the district chiefs and others in that department. In response, Savage received a legal opinion from the Senior Legal Counsel of the Law Department of the City of Springfield, dated six years earlier, November 14, 2008, affirming the validity and enforceability of the residency requirement "as an authorized, constitutional and valid exercise of Springfield'shome rule authority to legislate on local matters" which does not conflict with any state statute, (On November 11, 2015, Savage sent a letter to Commissioner Conant asking him to enforce the residency ordinance; Savage attached the 2008 letter from the City of Springfield Law Department explaining the ordinance's validity. Conant has authority to discharge members. of the Fire Department and he is responsible for enforcing the rules of the Fire Department, including Article 17, which mandates the enforcement of municipal ordinances. Neither Conant nor any other city employee has taken steps to enforce the residency requirement or to respond to Savage's November 2015 letter. ‘The plaintiffs claim that Savage is harmed because he would be eligible for promotion to the position of district chief were it not for the City’s failure to enforce the residency requirement, ‘The plaintiffs allege that as registered voters of Springfield, they are harmed by the defendants! inaction, witich undermines what they see as the purpose of the residency requirement, to encourage the inclusion of Springfield residents in their executive branch of government. In their amended complaint, verified by Savage, the plaintiffs seek (1) a declaration that the residency requirements in Art. I, § 73-8 of Springfield's ordinances and in § 2-17 of the predecessor ordinances are valid, operative and enforceable; and (2) an order that the defendants enforce the resideney requirement in Springfield's ordinances. 3. Standard of Review ‘The three pending motions all seek dismissal of the amended complaint, Local 648s motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) challenges the legal sufficiency of the complaint and, accordingly, is subject to the same standard as the two motionsto dismiss brought under Mass. R. Civ. P. 12(b)(6), by the municipal defendants and the Fire Chiefs Association. See Welch v. Sudbury Youth Soccer Association, Inc., 453 Mass. 352, 353 (2009). Accepting the factual allegations of the amended complaint as true and disregarding its Tegal conclusions, see General Convention of New Jerusalem v. Mackenzie, 449 Mass. 832, 838 (2007), the court's task is to determine whether the amended complaint sets forth allegations “plausibly suggesting (not merely consistent with) an entitlement to relief." Jannachino v. Ford Motor Co., 451 Mass. 623, 636 (2008). 4, Relief Available Under G. L. ¢. 43A, § 14(2), and G. L. ¢. 231A, §2 As ten or more registered voters, the plaintiffS brought this action pursuant to G. L. 43A, § 14(2), part of the Home Rule Procedures Act, G. L. c. 43B, which authorizes municipalities to adopt ordinances which are not inconsistent with state laws. G. L. c. 43B, § 13. Section 14(2), entitled Enforcement of this Chapter, states that a "petition for declaratory relief under [G. L. ¢. 231A] may be brought on behalf of the public .. . by leave of court, by ten or more registered voters of the city... .." Section 14(2) is aimed at protecting and enforcing the Home Rule Amendment, such that ten or more registered voters may seek a declaration under G.L.¢, 231A as to the validity of a municipal ordinance which may conflict with a state statute, see Bloom v. City of Worcester, 363 Mass. 136, 144 (1973) (seeking declaration of validity of municipal ordinance which created and empowered human rights commission; at issue was whether ordinance conflicted with statute on subject of human rights), or the validity of a state statute which purportedly oversteps municipal authority, see Doris v. Police Comm'r of Boston, 374 Mass. 443, 446 (1978) (plaintiff sought declaration that statute imposing residencyrequirement on police conflicted with Home Rule Amendment because municipal employee residency questions are best left to municipalities). None of the moving parties directly challenge the plaintiffs’ assertion that the residency ordinance is the produet of Springfield's valid legislative authority. The municipal defendants unequivocally concede its validity, the Fire Chiefs Association does not address the issue, and Local 648 acknowledges that the City’s adoption of the residency ordinance may have been a lawful exercise of the City’s authority. The moving parties all argue, nonetheless, that the court cannot award any of the relief sought because there is no actual controversy. Although the municipal defendants reason that no controversy exists as between it and the plaintiffs because it does not deny the validity of the ordinance, all of the moving parties contend in overlapping arguments that (a) mandamus or certiorari relief is not available as pled by the plaintiffs, and (b) trative remedies must be exhausted before an. this is essentially a labor dispute in which admin actual controversy exists. Neither G. L. ¢. 43A, § 14(2), nor G. L. ¢. 231A, § 2, authorizes orders compelling enforcement of ordinances. See G. L. c. 43A, § 14(2); G. L. c. 231A, § 2. Consequently, the plaintiffs have not properly pled in their amended complaint a legal basis for obtaining an order that the City of Springfield enforce the residency ordinance,’ and, insofar as the amended "Where no other adequate remedy exists, relief in the nature of mandamus can be petitioned to compel performances from a public official who has declined to act. See Town of Reading v. Attorney General, 362 Mass. 266, 269 (1972); Police Comm'r of Boston v. Ciccolo, 356 Mass, 555, 557-558 (1969). Pursuant to G. L. ¢. 249, § 3, mandamus “is appropriate to compel a public official to perform an act which the official has a legal duty to perform, Stated negatively, a court may not compel performance ofa diseretionary act... and, even ifthe act sought to be compelled is ministerial in nature, relief in the nature of mandamus is extraordinary and may not be granted except to prevent a failure of justice in instances where there is no ather adequate remedy. . ‘Mandamus relief is not a matter of right but of sound judicial discretion.” 10complaint seeks such an order, it is dismissed. All that remains for consideration of the amended complaint is the plaintiff! request for a declaration that the Springfield residency requirement ordinance is valid and enforceable, “In order to bring an action for declaratory relief under G. L. ©. 231A, §§ 1 and 2, there must be both an actual controversy and legal standing." Mass. Assoc, of Independent Insurance Agents and Brokers, Inc., v. Comm'r of Ins., 373 Mass. 290, 292 (1977). 5. The Municipal Defendants’ Motion to Dismiss The municipal defendants’ argument that no actual controversy exists because they concede the validity of the ordinance ignores the fact that the unions’ position on the validity of the ordinance is less clear. In any event, the municipal defendants' principal argument is that either Savage or the parties to the collective bargaining agreements must pursue some form of administrative relief, either in lieu of or before judicial relief may be sought. ‘The municipal defendants do not argue that Savage could have pursued any specific grievance procedure under the collective bargaining agreement between his union, Local 648, and the City of Springfield." Instead, they argue that Savage could have sought redress for Local 648's breach of the duty of fair representation, by not investigating and processing Savage's complaint to a union representative that the residency requirement was not being enforced. Lutherans Serv. Ass'n of New England, Inc. v. Metro, Dist. Comm'n, 397 Mass. 341, 344-345 (1986). Relief in the nature of mandamus does not le to compel a municipal officer to exercise his or her diseretion or judgment in & particular way. Urban Transport, Inc. v. Mayor of Baston, 373 Mass. 693, 698 (1977). ‘Assuming forthe sake of argument only, without deciding, that enforcement ofan unambiguous municipal ‘ordinance which is nt inconsistent with any other laws or collective bargaining agreements does not involve the ‘exereise of discretion oF judgment and that no other adequate remedies ae available, mandamus relief, if sought, ‘could be a proper vehicle to seek an order compelling enforcement ofthe ordinance. See Liuheran Serv. Ass'n of New England, Inc. v. Metro. Dist. Comm'n, 397 Mass. 344-345. "Local 648's argument that Savage could have filed a grievance is addressed below. reFrom that speculative premise, the municipal defendants assert that this dispute must be resolved by proceedings before the Commonwealth of Massachusetts Department of Labor Relations and/or its Joint Labor-Management Committee. The Department of Labor Relations handles most cases of claimed breaches of a union's duty fairly to represent employees in the enforcement of the union agreement. See Leahy v. Local 1526, American Fed. of State, County and Municipal Employees, 399 Mass. 341, 346-349 (1987). Although Savage may potentially have a claim against Local 648 for breach of the duty of fair representation, he has not asserted it in this action, ‘The municipal defendants have not shown that Savage must make that complaint rather than the one lodged here, secking a declaration of the validity of the ordinance, which is not a subject properly before the Department of Labor Relations. Contrast Lee v. Labor Rels. Comm'n, 21 Mass. App. Ct. 166, 167 (1985); Bloom v. City of Wore., 363 Mass. at 137-138. The municipal defendants cannot prevail on a motion to dismiss a claim which was never pled Nor have the municipal defendants shown that other nonjudicial administrative mechanisms were available and should have been used to resolve this dispute. First, they argue that Savage's claim that the City of Springfield has failed to enforce its ordinance should be brought to the Civil Service Commission, because Springficld Fire Department employees! promotions are subject to the Civil Service Law, G. L. ¢. 31, ef seq. The Civil Service Commission conducts investigations upon written request by an aggrieved person or by ten. persons registered to vote in the Commonwealth, and hears and decides appeals by a person 12aggrieved by an administrator's (here, the City's) failure to act. G.L. c. 31, §2. ‘To have status as an aggrieved person, an employee must allege that the administrator's action or inaction violated G. L. c. 31 and thereby harmed the person's employment status. G. L. ¢.31, § 2." The Civil Service Law does not recognize or impose upon administrators an obligation that fire fighters seeking a promotion reside in the municipality of employment. Instead, the Civil Service Law only requires that “any person who receives an [original] appointment to the ... fire force of a city ... shall within nine months after his appointment establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town; provided, however, that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150.” G.L.c.31, § 58 (emphasis added). The resideney requirement in G. L. c. 31, § 58, is not as strict as that in the Springfield ordinance, which requires fire department employees to live in the city, not within ten miles of it. ‘Therefore, the amended complaint does not and cannot assert a violation of G.L. e. 31, and Savage does not qualify as an aggrieved person under the Civil Service Law so as to have an administrative remedy through Civil Service Commission proceedings. See G. L. c. 31, §§ 2, 58. Even assuming for the sake of argument only that Savage had but failed to exhaust administrative remedies for purposes of this action, the municipal defendants’ motion still would “The administrator is defined in G. L. ¢. 31, § 1, as the "personnel administrator ofthe human resources division within the executive office for administration and finance.” "General Laws ¢. 31, §2, reads: "No person shall be deemed to be aggrieved under the provisions of this section unless such person has made specific allegations in writing that a decision, action, or failure to act on the part of the administrator ‘was in violation of this chapter, the rules or basic merit principles promulgated thereunder, and such allegations shall show that such person's rights were abridged, denied, or prejudiced in such a manner as to ‘cause actual harm to the person's employment status.” 13fall lat. General Laws c. 231A, § 3, provides in part that, "The failure to exhaust administrative relief prior to bringing an action under section one shall not bar the bringing of such action if the petition for declaratory relief is accompanied by an affidavit stating that the practice or procedure set forth pursuant to the provisions of section two is known to exist by the agency or official therein described and that reliance on administrative relief would be futile." | ‘Savage filed an affidavit in support of the amended complaint meeting these requirements. In his affidavit, Savage explained why resort to administrative relief from either | Local 648 or the municipal defendants would be futile. Savage stated in his affidavit that he informed Local 648 of the unenforcement of the residency ordinance, asked Local 648 to take action on it, but was informed by Local 648's attomey in a September 2015 meeting that the union could not file a grievance against the district chiefs because they belonged to different union, and that Local 648 had no means to seek redress on behalf of Savage. Savage's affidavit satisfies the requirements of G. L. ¢. 231A, § 3, in affirming that Local 648 and the City of Springfield knew of the complained of practice and that reliance on administrative relief would be futile. Accordingly, the municipal defendants have not established | that the amended complaint must be dismissed at this juncture for failure to exhaust administrative remedies before seeking judicial relief. See G. L.c. 231A, § "The municipal defendants also posit that labor agencies, not the court, have the expertise to determine whether a conflict exists between Springfield's residency ordinance and several state statutes such as G.L.c. 48, § SRE (allowing fire department members to reside ouside of municipality they serve), G. L.c.41, § 9A (authorizing car fre dpreenmenbenee iin 1 eof muni ih ml fen, bet along to enact ordinances and execute collective bargaining agreements to require fie department tmployees to reside in employer municipal), and G. Lc. 150E,§ 1a) (roving that public employees’ colective ‘bargaining agreement terms prevail if they conflict with local ordinance). The municipal defendants’ view is directly undercut by the statutory foundation for this lawsuit, G. Le, 43B, § 14(2), which allows petitions for relief in court to sor out potential conicts between ordinances and statutes. See also Bloom v. Cty of Worc., 363 Mas. at 144 146. Fire Chiefs Association's Motion to Dismiss Amended Complaint The Fire Chiefs Association moves for dismissal of the plaintiffs’ amended complaint, notwithstanding its apparent concession, at the end of its brief, that the City ean choose to enforce the ordinance and terminate noncompliant employees. Its arguments for dismissal hinge upon its assertion that the ordinanee’s applicability and enforceability are in dispute and must be resolved through collective bargaining rather than in court. Specifically, the Fire Chiefs Association maintains that the City of Springfield was required to have resubmitted the residency issue to the collective bargaining process because: (1) the ordinance had been rescinded between 1991 and 1995, and (2) the City of Springfield failed to enforce the ordinance for many years. ‘The Fire Chiefs Association further contends that Savage lacks standing to bring this lawsuit because he is not a party to the collective bargaining agreement between the City of Springfield and the Fire Chief’ Association, None of these arguments succeeds. ‘The Springfield ordinance's lack of a residency requirement for district chiefs during a four year period over twenty years ago has no effect on this action, Since 1995, the residency ordinances have not significantly changed except to become more lenient with the mayor's authority to waive the requirement in certain circumstances. The provisions of the Fire Chiefs Association's collective bargaining agreement executed in 2000, where no new agreement has been reached and no termination notice given, remain binding and leave no doubt that the agreement's terms, including the residency requirement, were agreed upon by the parties after negotiation. See Preamble of Agreement Between City of Springfield and Fire Chiefs Association (purpose of agreement is to set forth conditions of employment to be observed by parties); Art. 31.01 (agreement shall remain in 15effect until parties sign new contract or give termination notice). Nor does the City's failure to enforce the residency requirement obligate it to renegotiate that provision before commencing enforcement. Noncompliance or the lack of enforcement ofa residency ordinance does not render it inoperative. See Brockton Police Association v. City of Brockton, 57 Mass. App. Ct. at 674 ¢ validity or effect of an ordinance does not depend on the lack of success of enforcement or the diligence of city officials"); Doris v. Police Comm'r of Boston, 374 Mass. 443, 449 (1978) ("It would indeed be a most serious consequence if we were to conclude that the inattention or inactivity of government officials could render a [residency requirement] statute unenforceable and thus deprive the public of the benefits or protections bestowed by the Legislature") Where, as here, there is no inconsistency between the ordinance and the terms of a negotiated and executed collective bargaining agreement, the lack of enforcement does not impair the validity of the requirement or evidence a dispute which must be resolved through collective bargaining. Sce Brockton Police Association v. City of Brockton, 57 Mass. App. Ct. at 674- 676 (rejecting police union's claim that city's enforcement of residency requirement would constitute a changed policy which must be subject of bargaining in union contract, where (a) ordinance, not union agreement, established residency requirement; (b) nonenforcement did not invalidate ordinance; and (c) the parties to union agreement reached an agreement on residency requirement such that union could not claim that police members were not bound by residency requirement in union agreement). In this context, the Fire Chiefs Association's bare claim that it disputes the applicability and enforceability of its collective bargaining agreement is an insufficient basis to bar the claim 16{for a declaration on the validity of the residency ordinance. ‘This is particularly true where Savage is not a party to the same collective bargaining agreement and the members of the Fire Chiefs Association have or will have administrative remedies at their disposal, should the plaintiffs properly seek enforcement and should it be ordered. Discharged employees could challenge the terminations through the grievance procedure laid out in their collective bargaining agreement, Moreover, at any time, the Fire Chiefs Association is free to request that the residency provisions be subject to renewed bargaining toward a new agreement, or to terminate the agreement. Its failure to do so raises doubts about its claim that a real dispute exists over the applicability of the collective bargaining agreement. For all these reasons, the Fire Chiefs Association's motion to dismiss must be denied. 7. Local 648's Motion for Judgment on the Pleadings In its motion for judgment on the pleadings, Local 648 argues that this dispute should be resolved administratively, through arbitration, rather than in court proceedings. Local 648's reasoning is that (1) Section 3.08,070 of the 1995 ordinance states that the collective bargaining ‘agreement terms prevail over those of an ordinance, and (2) the issue of residency is a matter of “ongoing collective bargaining between the City and the Fire Chiefs Association, based on Art. 22.02 of their agreement, which states in its entirety that "The parties agreed to refer to a Joint Labor-Management Committee for review and discussion.” Neither of these points have support. First, Local 648's reading of the 1995 residency "Local 648 also argues that district chief’ are exempt from the residency ordinance. For tis, it misplaces reliance upon two inapposite authorities: an ordinance concerning water departwyent employees and a stature ‘concerning school teachers. 7‘ordinance as stating that the collective bargaining terms prevail over those of the ordinance ignores the express condition of the ordinance it cites. Section 3.08.070 states, "Should the terms of a collective bargaining agreement conflict with this chapter, the terms of the collective bargaining agreement shall prevail." (Emphasis supplied). Here, there is no conflict between the residency ordinance and the Fire Chiefs Association's collective bargaining agreement, as they are harmonious. Therefore, there is no dispute between these provisions which must be resolved through arbitration or another non-judicial dispute resolution process. Faring no better is Local 648's second argument, that questions about the residency requirement should not be resolved judicially because the requirement is a matter of ongoing collective bargaining between the City and the Fire Chiefs Association. For this argument, Local 648 relies upon Article 22.02 of that agreement, which states in its entirety that "The parties agreed to refer to a Joint Labor-Management Committee for review and discussion.” Review and discussion are not the equivalent of collective bargaining, which occurs when ‘one party to a collective bargaining agreement requests that both parties engage in negotiations with respect to terms or conditions of employment, More importantly, Art. 31.01 of the same agreement provides that “This Agreement shall be effective when executed and shall remain in effect until June 30, 2003 . . . On request of either party, negotiations for a new agreement shall begin on or after October 1, 2002. This Agreement shall remain in full force and be effective during the period of negotiations until signing of a new Agreement or until ten day termination notice is given. ..." Art. 30.01, Review and discussion before the Joint Labor-Management Committee does not undermine the effectiveness of the agreement, including the residency provision. As noted above, until either party to the collective bargaining agreement terminates it or signs a new one,the currently operative collective bargaining agreement setting forth the parties’ negotiated and unambiguous terms conceming the residency requirement cannot be sidestepped. See Art. 30.01. At the motion hearing, I asked Local 648 to cite case law showing that Savage could pursue a remedy under Local 648's collective bargaining agreement, Local 648 responded that Savage can seek a remedy under the collective bargaining agreement if he alleges harm from a nonresident being promoted over him, even if the promotion is to a position in a different bargaining unit. For that argument, Local 648 cited City of Springfield v. Local Union NO. 648, Int'l Assoc'n of Fire Fighters, 79 Mass. App. Ct. 905, 906 (2011). According to Local 648, in that decision, the court determined that the collective bargaining agreement (which is the same in the present case) "explicitly allows a grievance, and hence the right to arbitration ‘pertaining to any matters related to the Employee-Employer relationship.” Jd. at 906. Local 648 misreads the case. Init, the court determined that the grievance procedure pertaining to any matters related to the employee-employer relationship was based on language in Art. 22.05 of the union agreement, which did not concern an employee's grievance, but the union's grievance. That the scope of a union grievance may be broad does not enlarge the scope of an employee's grievance under the union agreement. ORDER For all the foregoing reasons, it is hereby ORDERED that: (1) the Motion to Dismiss Amended Complaint (#16) is ALLOWED insofar as the amended complaint seeks an order compelling enforcement, and is otherwise DENIED: (2) the Motion for Judgment on the Pleadings of the Defendant [Intervener] Local 648, Intemational Association of Firefighters (#18) is DENIED; and 19.(3) the Motion of the Defendant Fire Chiefs Association of Springfield to Dismiss the Plaintiffs’ Amended Complaint for Declaratory Relief (#19) is DENIED. Iustice of the Superior Dated: February 14, 2017 20