CLIFFORD J. BROOKS & others vs. SCHOOL COMMITTEE OF GLOUCESTER.

GOODMAN, J. This is an appeal by the plaintiffs, officers and members of the Gloucester Teachers Association, from a judgment, entered on an agreed statement of facts (submitted prior to the new rules of civil procedure); the plaintiffs contend that they are entitled to reimbursement of the difference between fifty percent and seventy-five percent of certain insurance premiums. These premiums were paid during the period between September 1, 1972, and August 31, 1973, for group hospital, surgical, and medical insurance purchased by the city of Gloucester for its employees (see Municipal Light Commn. of Taunton v. State Employees' Group Ins. Commn. 344 Mass. 533 , 536 [1962]) pursuant to G. L. c. 32B, entitled "Contributory Group General or Blanket Insurance for Persons in the Service of . . . Cities . . .." Fifty percent of the applicable premiums was paid by the city (the other fifty percent having been paid by the plaintiffs) pursuant to G. L. c. 32B, Section 7, which provides that the city and its employees each pay fifty percent of the premium; and (possibly, though it is not clear) as provided in a collective bargaining agreement between the plaintiffs and the school committee. [Note 1] During this same period the city paid seventy-five percent of the comparable premiums for its firemen and policemen (who paid only twenty-five percent) under a collective bargaining agreement, effective September 1, 1972, the city having on January 20, 1972, accepted G. L. c. 32B, Section 7A, inserted by St. 1968, c. 100, Section 1 (sometimes referred to herein as the 1968 statute). This statute provided

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that a city "may . . . make payment of a subsidiary or additional rate . . . which shall result in the governmental unit making payment of more, but not less, than fifty per cent of the total monthly cost for such insurance."

The plaintiffs argue that they were entitled to have the same percentage of their premiums paid by the city as was paid for the firemen and policemen. They contend that they were entitled to the same treatment under the 1968 statute which, they argue, continues the uniformity in G. L. c. 32B, Section 7, and was "clarified" by the provision added by St. 1973, c. 789, Section 1. [Note 2]

However, we are rather persuaded by a different analysis. Section 7, which provides uniformly for payments by insured employees of fifty percent of their premiums, was adopted in 1955 (St. 1955, c. 760), long before the adoption of G. L. c. 149, Sections 178G-178N, which provided for collective bargaining by municipal employees "with respect to wages, hours, and other conditions of employment" (G. L. c. 149, Section 178I), [Note 3] a phrase which includes the payment of insurance premiums. See Kerrigan v. Boston, 361 Mass. 24 , 26-28 (1972), and cases cited. The collective bargaining statute was passed in 1965 (St. 1965, c. 763, Section 2), and we believe it should be construed in harmony with the 1968 statute. Mendes v. Taunton, 365 Mass. 109 , 114 (1974). Thus construed, the former permits collective bargaining by the city (or other governmental unit) about the payment of insurance premiums with different employee associations and thus with possibly different results, unless such bargaining is inhibited, as it would be, by a clear requirement of uniformity in Section 7A. [Note 4] We find no such

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requirement expressly constraining the flexibility and scope of collective bargaining; indeed, the plaintiffs concede that "the 1968 version of Section 7A was silent on the question presented in this case."

Further, by the 1973 statute (see fn. 2), the Legislature seems to have placed the added sentence requiring uniformity in juxtaposition to the earlier provision to indicate a contrast. This would appear to be the conventional function of "however" in a statute. The implication is that the 1973 Legislature read the 1968 statute as permitting inequality, which it then decided to alter as a matter of policy. This conforms to the common sense insight that an amendment to a statute presumably intends a change. Marshfield v. Springfield, 337 Mass. 633 , 637-638 (1958). Sands, Sutherland Statutory Construction, Section 22.30 (4th ed. 1972). The amendment here is quite different from the "clarification" in Turnpike Realty Co. Inc. v. Dedham, 362 Mass. 221 , 228 (1972), cert. den. 409 U.S. 1108 (1973), where additional specific language was added by an amendment out of an abundance of caution to "clarify" general language and where there were no countervailing considerations to interpreting that general language to include the amendment. Contrast also Fitz-Inn Auto Parks Inc. v. Commissioner of Labor and Indus. 350 Mass. 39 , 42 (1965).

In support of their contention that the 1968 statute requires uniformity the plaintiffs rely primarily on a memorandum attached to their brief (dated March 29, 1968, the date the 1968 statute was approved), issued by the executive secretary of the Group Insurance Commission, [Note 5] and

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directed to "mayors, county commissioners, city and town managers, boards of selectmen, and district commissioners." It was accompanied by a copy of the 1968 statute and set out what purported to be its explanation, including a statement that the statute required uniformity. The plaintiffs argue that this represents an administrative interpretation which must be given great weight. We do not pass on the defendant's objection that it was not made part of the evidentiary record -- in this case the agreed statement of facts. See Finlay v. Eastern Racing Assn. Inc. 308 Mass. 20 , 27 (1941); Paananen v. Rhodes, 1 Mass. App. Ct. 12 , 15 (1975), and cases cited. But see Palmer v. Selectmen of Marblehead, 368 Mass. 620 , 629 (1975), in which the court considered regulations of the State Board of Higher Education and a "recruitment brochure," neither of which was included in the "agreement as to evidence," but were attached as appendices to the brief amicus curiae of the State Police Association; no objection, however, was apparently made as to their use.

As appears from the statutes (see fn. 5) the commission was not involved with the allocation of insurance premiums. It had no administrative responsibility in that regard. Contrast Board of Educ. v. Assessor of Worcester, 368 Mass. 511 , 516-517 (1975). Further, the application of the 1968 statute was ultimately made at the local level, and the manner in which it was generally interpreted during the five years between 1968 and 1973 by cities, towns,

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and other local units would be the relevant administrative gloss.

The plaintiffs have also directed our attention to four other memoranda by the executive secretary of the Group Insurance Commission, addressed to the Joint Committee on Insurance of the Legislature, as illuminating the meaning of the 1968 statute. All of them are contained in the records of the Joint Committee on Insurance; each of the four is filed with the bill with reference to which it was submitted. We need not decide whether these memoranda are properly before us, since they do not change the result. Indeed, the memorandum, dated February 6, 1968, with reference to the bill which became the 1968 statute, supports our interpretation. It characterized the proposed legislation as allowing for "adjustments [which] would be caused by medicare premium rate changes as well as collective bargaining agreements" (emphasis supplied). [Note 6]

Accordingly, we decline to supply in the 1968 statute the clause added by the 1973 statute. See Boylston Water Dist. v. Tahanto Regional Sch. Dist. 353 Mass. 81 , 84 (1967), quoting from Mitchell v. Mitchell, 312 Mass. 154 , 161 (1942). We affirm the judgment, the form of which has not been questioned.

Judgment affirmed.