NOLAN J. WILLIAMS vs. BOARD OF SELECTMEN OF WELLFLEET (and two companion cases [Note 1])

WILKINS, J. On May 6, 1974, pursuant to G. L. c. 41, Section 131 (1994 ed.), the voters of Wellfleet acted affirmatively on the following question: "Shall the members of the Wellfleet Police Department who have served continuously for five years or more be granted tenure pursuant to [G. L. c. 41, Sections 126-132]?"

On May 6, 1974, the plaintiff Nolan J. Williams was not a member of the Wellfleet police department. The selectmen appointed Williams to be a full-time patrolman on December 4, 1986, and periodically reappointed him so that he completed his fifth consecutive year of service in December, 1991. In the summer of 1992, the selectmen voted "not to reappoint" Williams to the police department. Williams contends that he acquired tenure in 1991 as a consequence of the 1974 vote concerning tenure in the police department. The selectmen argue that the 1974 vote only had retroactive application. They grant that, at the time of the 1974 vote, no Wellfleet police officer had served for at least five years and hence agreed that, on their theory, no police officer acquired or could acquire tenure as a result of the 1974 vote.

The form of the 1974 ballot question was prescribed by G. L. c. 41, Section 131. Thus we should provide a Statewide answer to the consequences of affirmative votes on that question. We, therefore, disregard circumstances peculiar to Wellfleet. We do not rely on the fact that, following the 1974 vote, town officials appear to have assumed that police officers became tenured as they completed five years of consecutive service. We also do not consider the fact that, if the selectmen's interpretation of the effect of the 1974 vote is correct, that vote was a nullity, a useless exercise, because no police officer then serving was affected by the vote.

We conclude that the 1974 vote was prospective in that, whenever subsequent to the vote a Wellfleet police officer served consecutively for five years, he or she automatically acquired tenure. The Civil Service Commission arrived at this conclusion on the ground that a contrary interpretation "would have the effect of establishing two classes of police officers in the Town, those who had served for five years" at

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the time of a vote, and "those who subsequently completed five years of service but were ineligible for tenure." The commission doubted that the Legislature intended that a town should be obliged periodically to "readopt" the ballot question. There is force to that practical argument. The answer, of course, must be found in the Legislature's intention. [Note 2]

The ballot question prescribed by G. L. c. 41, Section 131, is ambiguous as to whether its purpose is (a) to grant tenure only to certain current police officers or (b) to establish a personnel rule applicable to future as well as present members of the police department. In the context of the pattern of G. L. c. 41, Sections 126-132 (1994 ed.), concerning tenure for certain municipal officials, Section 131 appears to contemplate that an affirmative vote has a prospective effect. Under G. L. c. 41, Section 129 (1994 ed.), a named individual may be granted tenure by town vote, [Note 3] if the selectmen approve and the person has served for at least five consecutive years (see G. L. c. 41, Section 127 [1994 ed.]). Alternatively, a department head may apply "for tenure for members of his department who have served for five consecutive years or more" by filing an application with the town clerk. G. L. c. 41, Section 131. If the selectmen approve, the following question is placed on the ballot: "Shall members of (name of department) who have served continuously for five years or more be granted tenure

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pursuant to [G. L. c. 41, Sections 126-132]?" The general nature of the Section 131 question, as opposed to the person-specific question provided in Section 129 (quoted in note 3 above), suggests an intention to prescribe a tenure principle universally applicable to the subject department. We share the Civil Service Commission's reluctance to conclude that the Legislature intended to burden a municipality that wants to have a universal tenure rule by requiring it to return to the voters periodically with the same ballot question.

Finally, we find support for our view in the provision of Section 131 that describes the consequences of an affirmative vote on the ballot question: "If a majority of the votes cast in response to the question is in favor of granting tenure, any member of such department who has served continuously for five years shall thereupon have tenure in said department" (emphasis added). By its place in the sentence (and not right after the introductory "if" clause), the word "thereupon" refers to the time at which five years passes and not to the time of the vote.

The judgment in each case is vacated. New judgments shall be entered consistent with this opinion declaring, as appropriate, that (1) Nolan J. Williams acquired tenure as a police officer in Wellfleet, (2) the May 6, 1974, vote provides for tenure for police officers who shall have served continuously for five years as of a date subsequent to May 6, 1974, and (3) the decision of the Civil Service Commission that it had jurisdiction over the proceeding before it, because Nolan J. Williams was a tenured police officer, is affirmed.

So ordered.