DENNIS CONNORS & others [Note 1] vs. CITY OF BOSTON & others [Note 2]

MARSHALL, J We decide in this case whether an executive order signed by the mayor of the city of Boston extending group health insurance benefits to the domestic partners of city employees is inconsistent with certain provisions of State law and for that reason violates the Home Rule Amendment, art. 89, s. 6, of the Amendments to the Massachusetts Constitution, and G. L. c. 43B, s. 13 [Note 3]. We conclude that it is, and that an interlocutory order to that effect entered by a judge in the Superior Court is correct.

I

On August 4, 1998, Mayor Thomas M. Menino signed an executive order extending group health insurance benefits to registered domestic partners [Note 4] of city employees and their dependents. The executive order went into effect on November

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1, 1998. On November 10, 1998, the plaintiffs, Boston residents, commenced this action pursuant to G. L. c. 40, s. 53, challenging the validity of the executive order. They alleged, in broad terms, and without reference to any particular statute or constitutional provision, that the executive order is inconsistent with the authority granted to the city by the Legislature to provide health insurance to city employees [Note 5]. The plaintiffs sought a preliminary injunction to enjoin the implementation of the executive order, on which a hearing was held on December 2, 1998. The Gay & Lesbian Advocates & Defenders (GLAD), Kay Schmidt, a city employee, and Diane Pullen, Schmidt's registered domestic partner, filed a motion to intervene as defendants. On December 11, 1998, the judge allowed GLAD, Schmidt, and Pullen to intervene [Note 6], but limited GLAD's participation to the representation of Schmidt and Pullen's interests [Note 7].

On December 11, 1998, the judge ruled that the executive order is inconsistent with provisions of G. L. c. 32B, s. 2 (b) and 15 (b) [Note 8], and granted the plaintiffs' request for a preliminary

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injunction. Concluding that "the issue raised in this case presents a current and important question of law not previously decided by a Massachusetts appellate court," the judge, pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), reported the following question to the Appeals Court:

"Whether the Executive Order signed by Mayor Thomas M. Menino on August 4, 1998, extending health benefits coverage to domestic partners of Boston city employees, and their dependents, is inconsistent with G. L. c. 32B, s. 2(b) and 15(b), and, therefore, in violation of s. 6 of the Home Amendment Rule and G. L. c. 43B, s. 13 [Note 9]."

The judge stayed his order granting the preliminary injunction until his report was docketed in the Appeals Court. A single justice of the Appeals Court continued the stay pending appeal because "the question reported . . . presents a meritorious issue on appeal" and "the equities weigh heavily in favor of a stay pending appeal." We granted the defendants' application for direct appellate review.

II

We consider whether the judge was correct to conclude that

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the executive order is inconsistent with certain provisions of G.L. c. 32B. Article 89, s. 6, of the Amendments to the Massachusetts Constitution, the Home Rule Amendment, provides:

"Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight, and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to section three."

The Home Rule Procedures Act, G. L. c. 43B, s. 13, contains virtually identical language. Thus, under the home rule provisions, the city may undertake any action that is not "inconsistent" with State laws or the Constitution [Note 10]. Massachusetts has the "strongest type of home rule," Bloom v. Worcester, 363 Mass. 136, 143 n.4 (1973), citing 1965 Senate Doc. No. 950 at 65-66, and municipal action is presumed to be valid. Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 744 (1993). Cf. Wendell v. Attorney Gen., 394 Mass. 518, 524 (1985). The analysis whether local action is inconsistent with a State statute is analogous to the analysis whether Federal law preempts State action, Bloom v. Worcester, supra at 151; the touchstone of the analysis is whether the State Legislature intended to preempt the city's authority to act. Id. at 155.

Recently, in Boston Gas Co. v. Somerville, 420 Mass. 702, 704 (1995), we summarized the appropriate analysis for resolving this question: We look "to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the

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Legislature intended to preempt the subject. Bloom v. Worcester, [supra at] 155-156. Moreover, in some circumstances we can infer that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute's purpose. Wendell v. Attorney Gen., [supra at 527-528]." Boston Gas Co. v. Somerville, supra. We have also indicated that the invalidation of a local regulation requires a "sharp conflict" between it and the State legislation, which "appears when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law." School Comm. of Boston v. Boston, 383 Mass. 693, 701 (1981), quoting Grace v. Brookline, 379 Mass. 43, 54 (1979).

The crux of this dispute is accordingly the Legislature's intent in enacting the provisions of G. L. c. 32B. The plaintiffs argue that s. 15 (b), the substance of which was first enacted in 1967, was intended to preclude a city from providing group health insurance benefits to persons other than those specifically designated by definition in s. 2 (b): city employees and their dependents, defined as spouses, children under nineteen years of age, and children over nineteen years who are unable to provide for themselves. The defendants and amici respond that the Legislature did not intend to address domestic partners at all within the ambit of G. L. c. 32B, and that a governmental unit is free to appropriate and expend public funds to pay for group health insurance premiums for them. They do not suggest that s. 2 (b)'s provision for "spouses" includes domestic partners [Note 11], or that domestic partners are otherwise "dependents." Rather, they argue, the statue simply does not pertain at all to the extension of group health insurance benefits to domestic partners [Note 12].

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A

We look first to see whether there was an "express legislative intent to forbid local activity on the same subject." Boston Gas Co. v. Newton, 425 Mass. 697, 699 (1997), citing Boston Gas Co. v. Somerville, supra at 703. Our examination of G. L. c. 32B, as well as the relevant legislative history, leads us to conclude that the Legislature clearly evinced its intent that G. L. c. 32B provide the exclusive manner in which the city may appropriate and expend funds for group health insurance for its employees (those individuals "in the service" of the city, G. L. c. 32B, s. 2 [d]), and all persons whose claim to group benefits (paid for by the city) arises because of their relationship with a city employee, i.e., "dependents [Note 13]." The Legislature has defined precisely those who may be included in the category of "dependents." Cities and other governmental units are not free to expand the category.

General Laws c. 32B is "a comprehensive statute empowering municipalities to provide group insurance (medical and certain other (overages) to their employees and their employees' dependents." Watertown Firefighters, Local 1347 v. Watertown, 376 Mass. 706, 710 (1978). See Kusy v. Millbury, 417 Mass. 765, 768 (1994), citing Teamsters, Chaulieurs, Warehousemen & Helpers Union, Local No. 59 v. Chatham, 404 Mass. 365, 367 (1989). General Laws c. 32B is a "local option" statute: it does not take effect until a governmental unit accepts it. See Kusy v. Millbury, supra at 768 n.4. Once accepted, however, it provides the exclusive mechanisms by which and to whom the city may provide group health insurance. See G. L. c. 32B, s. 15 (b); Watertown Firefighters, Local 1347 v. Watertown, supra at 712. Section 15 (b) provides explicitly that the city may not "appropriate or expend public funds" for the payment of group health insurance premiums for its active or retired employees,

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or their dependents, "unless such insurance is procured pursuant to the provisions of this chapter [Note 14]."

The defendants argue that the limitation imposed by s. 15 (b) applies only to those defined in the statute - employees and their spouses, children under nineteen years and certain children over nineteen years - leaving the city free to expend public funds to pay for group health insurance for other persons not mentioned in the statute. They view the requirements of G. L. c. 32B as a "floor," as opposed to a "ceiling." But the insurance plan at issue provides health coverage for named insureds (employees) and those who, because they are "dependent" on them, have an insurable interest through them [Note 15]. Domestic partners and their dependents fall outside the statutory definition of those who may claim an insurable interest through the employee, and are therefore precluded from obtaining coverage.

The defendants' construction of s. 15 is further belied by its legislative history. The Third Report of the Special Commission on Implementation of the Municipal Home Rule Amendment to the State Constitution (Home Rule Report), filed with the legislation introducing s. 15, 1967 Senate Doc. 1174, begins by stating:

"In the interest of further containing the cost of insurance programs, municipalities may not provide a level of benefits greater than that afforded by their county and the county may not exceed the State's level of benefits."

Id. at 2 [Note 16]. See Kerrigan v. Boston, 361 Mass. 24, 31 (1972) ("purpose and policy" of s. 15 [b] is to contain cost of insurance programs so that "municipalities may not provide a level

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of benefits greater than that afforded by their county and the county may not exceed the State's level of benefits"). We read the term "level of benefits" to include the definition of household members eligible for group health coverage through the employee. Health insurance benefits are an important component of an employee's compensation. See Commonwealth v. Massachusetts Org. of State Eng'rs & Scientists, 423 Mass. 667, 670 (1996). Whether a group health insurance plan covers a particular category of household members as "dependents" may be, and often is, as important to an employee as the risks that are covered [Note 17]."

The Home Rule Report goes on to state that the legislation was "designed to clarify" that "Chapter 32B remains in effect as a uniform state-wide system for the purchase of group life and health insurance" and that "local governments not presently providing these benefits for their employees may only be allowed to do so in the future by acceptance of Chapter 32B" (emphasis added). 1967 Senate Doc. No. 1174 at 2. The report also states that the "purpose of this Chapter is to provide local governments with a volume of purchasing power sufficient to assure that their employees will receive the highest possible level of benefits at the lowest possible net cost." Id. at 4. To this end, says the report, the statute "provides for the exclusive purchase of group term insurance, the style of insurance affording this feature" (emphasis added). The report recognizes that municipalities are not required to provide life and health insurance for their employees, but, "if they desire to do so the intention is it be done only under the provisions of this Chapter." Id. To that end, St. 1967, c. 373, which inserted s. 15 in G. L. c. 32B, is entitled "An Act providing that political subdivisions of the commonwealth shall not establish any system of group insurance for their employees except that provided by general laws. "

Where the Legislature has used such explicit language prohibiting the city from providing group health insurance

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except as prescribed by the statute, and where the legislative history makes clear that it intended to do so, we conclude that there was an "express legislative intent to forbid local activity on the same subject," Boston Gas Co. v. Newton, 425 Mass. 697, 699 (1997), quoting Boston Gas Co. v. Somerville, 420 Mass. 702, 704 (1995), rendering the ordinance in "sharp conflict" with State legislation. School Comm. of Boston v. Boston, supra [Note 18].

B

The city nevertheless urges us to conclude that the Boston ordinance is not inconsistent with State law because the purpose of G. L. c. 32B can be well served in the face of the ordinance, and that State and local law can "coexist." It argues that, by extending health care insurance benefits to a greater number of household members, the city will increase the volume of its purchasing power and assure that its employees "will receive the highest possible level of benefits at the lowest possible cost." See 1967 Senate Doc. No. 1174 at 4. This is, indeed,

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among the purposes of the statute. Equally important to the Legislature, however, was its objective that the plans of group life and health insurance adopted by each governmental unit be uniform. An overriding concern was to effectuate cost containment by preventing one governmental unit from providing different (and potentially more costly) levels of benefits than another. See Home Rule Third Report, 1967 Senate Doc. No. 1174 [Note 19]. The legislation accordingly provides that municipalities must achieve cost containment by adhering exclusively to the provisions of G. L. c. 32B, including s. 2 (b)'s limitation on covered dependents [Note 20]. Uniformity of coverage (persons and risks) was one mechanism selected by the Legislature to control escalating cost disparities among governmental units. That purpose would not be served if each could expand the definition of covered dependents.

When the Legislature enacted G. L. c. 32B in 1955, St. 1955, c. 760, it defined the term "[d]ependents" in a manner consistent with the then-prevalent view of persons for whom the benefi-

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ciary (the employee) likely had an obligation to provide support, and who reasonably could be viewed as relying on the beneficiary for support. See, e.g., Report of the Special Commission on Insurance, 1954 Senate Doc. No. 640 at 13 (term "dependents" and "wives and children" used interchangeably). The Legislature's definition of dependent in this context has changed but once, in 1960, to include certain children over the age of nineteen years. St. 1960, c. 214, s. 1. We recognize that the category of covered dependents of city employees, as defined by the Legislature in 1955 and 1960, no longer fully reflects all household members for whom city employees are likely to have continuing obligations to provide support. A "family" may no longer be constituted simply of a wage-earning father, his dependent wife, and the couple's children [Note 21]. We also recognize that the categories of household members who may rely on a wage earner for support have broadened over time. An increasing number of parents, for example, rely on their children for support, see generally Neal, Chapman, Ingersoll-Dayton, & EmIen, Balancing Work and Caregiving for Children, Adults, and Elders 144 (1993); Geriatric Cases: The Aging of America Is Making 'Elder Care' A Big Workplace Issue, Wall St. J., Feb. 16, 1994, at Al, while many more grandchildren live with and rely on their grandparents. More Grandparents Return to Parenting, Boston Sunday Globe, Sept. 13, 1998, at 17 [Note 22]. Adjustments in the legislation to reflect these new social and economic reali-

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ties must come from the Legislature, whether it does so by expanding the statutory definition of "dependent" or by authorizing governmental units to define for themselves the term "dependent [Note 23]." Our decision is mandated only because, in the context of group health insurance provided by governmental units for their employees, the Legislature has defined precisely the scope of the term dependent to exclude all but spouses, unmarried children under nineteen years of age, and older children in limited circumstances. G. L. c. 32B, s. 2 (b). Had the mayor sought to extend group health insurance benefits to other categories of household member beyond those defined by the Legislature, our conclusion would be the same. We recognize that some household members of some of Boston's employees may be without a critical social necessity, health insurance. That is a reality that must be addressed by the Legislature.

C

The mayor's executive order extending health insurance benefits to Boston employees' domestic partners and their dependents is inconsistent with G. L. c. 32B, s. 2 (b) and 15 (b), thereby violating the Home Rule Amendment, art. 89, s. 6, of the Amendments to the Massachusetts Constitution, and the Home Rule Procedures Act, G. L. c. 43B, s. 13. The judge's order enjoining the implementation of the executive order is affirmed.

Justice Fried participated in the deliberation on this case, but resigned before the opinion was issued.