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SJC-13245.
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Nathaniel Perez V Department of State Police.
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Okay, Attorney Bay, whenever you're ready.
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Thank Your Honor.
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Good morning, Your Honors.
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May it please the court, David Bay,
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on behalf of Trooper Nathaniel Perez
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sitting in the front row in the audience.
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This issue before the court today
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is whether the State Police Trooper, Nathaniel Perez,
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who is indicted and suspended without pay
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or benefits due to an indictment,
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is entitled to receive his back pay and benefits,
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when said indictment did not result in a guilty finding.
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Now pursuant to the Perry Law,
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also known as General Laws Chapter 30, Section 59,
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the position of Perez is that Section 59 of Chapter 30
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requires that he be reimbursed
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for his back pay and benefits
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during the period of time when he was suspended
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on the indictment, that was eventually dismissed.
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But that begs the question,
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if he was suspended under the Perry Law?
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Yes, Your Honor,
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and that goes to the primary issue in this case,
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whether or not the Perry Law is optional.
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And Your Honor, big picture-wise,
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if this court were to follow the state police's position
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that the Perry Law is optional, then the Perry Law,
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essentially would have no purpose at all.
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But that's not true.
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Sometimes you have a situation,
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you don't want the person at work
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and you don't want to go through a process.
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So you use the Perry Law
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and if you decide to do so without a process,
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then at the end of the day,
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if the person isn't successfully prosecuted,
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you get compensation.
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I understand, Your Honor.
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However, the Perry Law does not preclude a process.
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The Perry Law does allow for a one letter
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being provided to the employee
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to affect the suspension.
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Perry Law does not say that the agency
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is not permitted to have a hearing
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just like they did in this situation
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and then make that determination, Your Honor.
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Counsel, as I understand what you're arguing basically,
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is that, an entity could use the Perry Law,
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and maybe that's all they have is the Perry Law,
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but if an entity has other procedures,
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they then the Perry Law is not precluded.
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It's not automatically not used
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just because there are other procedures
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in place for the employee.
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Somewhat, Your Honor,
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what I'm saying is that the state police
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can not make a decision of,
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we're gonna follow the Perry Law.
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We're not gonna follow the Perry Law.
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If that were the case,
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if the state police were able to do that,
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every other agency could do that as well.
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Can you help me out as far as other agencies,
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other Perry Law alternative Universes
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and other, the state police,
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they argue have their own suspension provision.
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Do other agencies, police agencies
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or other governmental agencies
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have their own? If you know.
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Your Honor, my experience is this, they do, Your Honor,
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there is also a sister statute to the Perry Law
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that applies to local towns and counties as well.
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Did you cite to that in your brief?
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Yes, Your Honor.
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It's--
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We'll find it if you did.
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General Law Chapter 268A Section 25
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and essentially the mirror image of the Perry Law
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just applicable to town and counties.
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Thank you.
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Although, can I follow up on Justice Gaziano's question?
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'Cause so there may be a parallel to the Perry Law,
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but are there other cases
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where people have other procedures separate
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and apart from either the Perry Law or that other statute?
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Are there other agencies that have those procedures?
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Your Honor, I'm sure that there are, Your Honor,
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but I'm not saying that the Perry Law--
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Unionized employees would always have,
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anytime you have a collective bargain agreement,
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there's gonna be a termination process
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that you can't use automatically. Right?
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Is the Perry Law one of those statutes
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that overrides collective bargaining
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or does collective bargaining override the Perry Law?
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Your Honor I would suggests the Perry Law
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would override any collective bargain.
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Suggest or no. Is there?
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I don't know for a fact, Your Honor,
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but it is a statute, Your Honor, I mean it was enacted--
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Gotta remember there's state government,
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there's statutes that say when's collective bargaining
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trumps a statute and when it doesn't.
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So you need to, that's like a yes
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or it's actually not an in...
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Often it's defined by statute.
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I'm unaware of anything in the statute
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that states that it is.
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So is your argument
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the state police regulation is ultra virus?
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I'm sorry, Your Honor.
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Is your argument that the the Perry Law
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trumps the state police regulations?
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Yes, Your Honor.
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It does trump it, however it can be read
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consist the State police regulations
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Article 6 can be read consistently with the Perry Law.
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Maybe that's where I'm.
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'Cause I was wondering whether you were saying
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it was ultra virus, but tell me
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how they can be read in harmony.
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Your Honor, the Perry Law provides the may
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in the Perry Law,
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which is really what it's issue here is.
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Provides the state agency, like the state police,
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an option to suspend an employee
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who has been in fact indicted.
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It doesn't require that they suspend him,
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but they would say, if you want to suspend this employee
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who has been indicted, you may do so.
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But if you do so, you shall take these steps.
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And that is the rest of the statute.
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And it does say, provide notice,
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but it doesn't say, provide notice
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that this is pursuant to the Perry Law.
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Correct, Your Honor.
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It does provide notice, it requires that the employee
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to give prior notice and that notice be filed
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with the Secretary of State, Your Honor.
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But aren't you saying, again,
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following up on Justice Gaziano,
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that the Perry Law remedy trumps anything else.
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Meaning that, if you were fired for indictment,
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you have to get your money back.
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That's your whole argument.
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Because the Perry Law says that,
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so the Perry Law would trump all these other processes
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out there on Remedy, right?
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Yes, Your Honor.
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But in that particular situation you're talking about,
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I mean, if the person was terminated, Your Honor,
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that Perry Law would not apply.
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I mean, they would presumably been found guilty, Your Honor.
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But, you see there's a difference between the Perry Law
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and the police procedures.
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There are two big differences.
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One, the police procedures provide a hearing,
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you know, they give you a real hearing
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before they, you know, they stop paying you.
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Right.
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And the also the Perry Law provides that,
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if you're indicted and you're not convicted,
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you get your money back.
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But the police procedures do the opposite.
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They provide an alternative remedy,
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which is you get rehired, but you don't get your money back.
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So, you know, there are two different things going on here.
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And just to push the question
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and I'll turn it over to you,
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but here, this guy was given a hearing,
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the police officer was given a hearing.
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Perry Law very purpose doesn't provide a hearing.
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It just allows the governmental entity
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to get rid of someone when they've been indicted,
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and avoid all of the hearing process and arbitrators
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and everything else, right?
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Yes, Your Honor.
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However, the Perry Law does not preclude a hearing.
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And the hearing pursuant to Article 6 of the state police.
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That is the may in the Perry Law, Your Honor.
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The state police have a hearing,
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where it is determined whether or not
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the State trooper is suspended without pay
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and then that hearing decision is approved by the Colonel.
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But that's your argument that you're making this a hybrid.
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Why is it the majors just either or,
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you may proceed under the Perry Law.
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And just as soon as the person is indicted,
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suspend them without pay
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and then wait till the process rolls up.
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Or you may, if there's an alternative
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procedural vertical use that.
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And that's what the state police did here.
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You're merging them together.
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But where's your authority for that?
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Well, Your Honor, it's right in the Perry Law,
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the plain language of the Perry Law,
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does not allow a state agency
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to choose whether or not it follows the law.
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It allows a state agency the option
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of suspending an employee who has been indicted.
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That is where the may go.
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So may is not applicable to listen,
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the state agency can choose whether or not
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to follow the Perry law.
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That is the main difference here.
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I'm not sure I follow you.
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If the statute says that
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the employee may be suspended without pay
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under the Perry law with no process whatsoever
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other than the indictment or
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the criminal process coming down,
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and that's it, right?
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Hard stop, right?
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The person can be suspended?
[Attorney David] Yes.
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Without pay?
[Attorney David] Yes.
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And then depending, whatever happens after that,
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if they were suspended under the Perry Law
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and they're vindicated at the end, they get their back pay?
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Yes, Your Honor.
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Okay, so that's one vertical.
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But why doesn't the may refer to that
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there may be some other process,
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like in this case the state police procedures,
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where you can't read them harmoniously
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because under the state police procedure,
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you get processed, you get a hearing
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you are suspended, and then at the end,
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if you're vindicated and you're like,
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in this case reinstated, you don't get that.
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Your Honor, for two reasons, Your honor.
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The plain language or the Perry Law does not allow
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for a state agency to make a choice
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as to whether or not to follow the Perry Law.
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The way it reads does not give state agency
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like state police that option.
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But I would like to address one point you made here is that,
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Article 6 in the Perry Law
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can be read harmoniously together.
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The Perry Law does not state that a state agency
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like the state police cannot give a trooper a hearing.
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And Counsel, wouldn't it be a fair statement
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that if, say the notice had been given
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and said, this is pursuant to the Perry Law,
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but you've got Article 6 in the rules and regulations
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and could not the trooper at that point say,
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Well, I'm entitled to the process under Article 6.
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Not withstanding that you said
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you're applying the Perry Law.
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I'm sorry, Your Honor, I'm not for helping you out.
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(all laughing)
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What I'm saying is that,
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say the state police in this case made a notice
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and said, "Under the Perry Law we're suspending you."
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But now you've got all these procedures
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and arguably rights for the state police
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under their contract or under their articles here.
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The state trooper could say,
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"Yeah, you suspended me under the Perry Law,
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"but you still have to give me the process
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"that I'm entitled to in the regulations."
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Yes, Your Honor.
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Absolutely, that's an option as well.
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But what I was also trying to say is that,
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as the perry Law does not preclude a hearing,
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00:11:18.692 --> 00:11:21.900
the state police are free to codify that
269
00:11:21.900 --> 00:11:23.989
within their own internal regulations, which they have.
270
00:11:23.989 --> 00:11:26.070
And then after that hearing is--
271
00:11:26.070 --> 00:11:28.140
They don't cross reference the Perry Law
272
00:11:28.140 --> 00:11:29.370
and they don't say anything
273
00:11:29.370 --> 00:11:32.285
that they're going to give you your money back if...
274
00:11:32.285 --> 00:11:37.229
Right, they've got their own completely independent process
275
00:11:37.229 --> 00:11:40.350
that doesn't reference the Perry Law,
276
00:11:40.350 --> 00:11:43.383
that doesn't abide by the Perry Law.
277
00:11:45.330 --> 00:11:47.683
They've just created their own universe.
278
00:11:47.683 --> 00:11:49.560
They have, Your Honor, however,
279
00:11:49.560 --> 00:11:52.320
I would also suggest Your Honor,
280
00:11:52.320 --> 00:11:54.600
that their regulations can be read
281
00:11:54.600 --> 00:11:55.590
consistent with the Perry Law
282
00:11:55.590 --> 00:11:57.249
because there's nothing in the state police regulations
283
00:11:57.249 --> 00:11:59.580
that addresses one way or the other.
284
00:11:59.580 --> 00:12:01.488
What happens with an indicted employee
285
00:12:01.488 --> 00:12:03.990
who is then not found guilty.
286
00:12:03.990 --> 00:12:05.115
That's where the Perry Law comes in.
287
00:12:05.115 --> 00:12:07.941
Attorney Bay, is there anything in the legislative history
288
00:12:07.941 --> 00:12:12.240
that suggests that backs you up that saying that,
289
00:12:12.240 --> 00:12:15.286
yes, the Perry Law is meant to cover all circumstances
290
00:12:15.286 --> 00:12:18.510
and you can't just opt out of it.
291
00:12:18.510 --> 00:12:20.400
Well, that's exactly what I was trying to find,
292
00:12:20.400 --> 00:12:21.233
Your Honor.
293
00:12:21.233 --> 00:12:23.005
Something that'd say that a state agent
294
00:12:23.005 --> 00:12:24.690
can just choose not to follow it.
295
00:12:24.690 --> 00:12:25.770
It's just not out there, Your Honor.
296
00:12:25.770 --> 00:12:27.255
What about the new legislation that came up
297
00:12:27.255 --> 00:12:29.017
on the police accountability statutes?
298
00:12:29.017 --> 00:12:29.850
Yes, Your Honor.
299
00:12:29.850 --> 00:12:31.500
How does that impact your argument?
300
00:12:31.500 --> 00:12:34.230
I think you're referencing to Chapter 220C, Section 13,
301
00:12:34.230 --> 00:12:37.710
Your Honor, and again, just like with Article 6,
302
00:12:37.710 --> 00:12:39.374
the Perry Law can be read consistent
303
00:12:39.374 --> 00:12:43.354
with General Laws 22C Section 13.
304
00:12:43.354 --> 00:12:44.924
22 Section C, Section 13,
305
00:12:44.924 --> 00:12:47.400
essentially codifies Article 6.
306
00:12:47.400 --> 00:12:50.654
And in no location in 22 Section 13,
307
00:12:50.654 --> 00:12:54.390
is the situation as we have here addressed
308
00:12:54.390 --> 00:12:57.464
where an indicted employee, is then not found,
309
00:12:57.464 --> 00:12:59.688
no finding of guilty is found as that employee.
310
00:12:59.688 --> 00:13:02.140
That's evidence that the legislature
311
00:13:03.259 --> 00:13:06.021
it recognizes that their independent entity
312
00:13:06.021 --> 00:13:07.740
robbed essentially.
313
00:13:07.740 --> 00:13:10.769
No, they can be read harmoniously together.
314
00:13:10.769 --> 00:13:13.800
The trial court judge noted that
315
00:13:13.800 --> 00:13:17.496
since it wasn't addressed in the new 22C Section 13,
316
00:13:17.496 --> 00:13:20.040
that it should be held against us.
317
00:13:20.040 --> 00:13:22.614
However, it's just not simply mentioned.
318
00:13:22.614 --> 00:13:25.380
And I see that as the legislature saying, Okay,
319
00:13:25.380 --> 00:13:27.002
well we don't have to address a situation
320
00:13:27.002 --> 00:13:30.750
where the indicted employee is not found guilty
321
00:13:30.750 --> 00:13:32.275
because we already have the Perry Law here.
322
00:13:32.275 --> 00:13:34.230
So why would we address it again?
323
00:13:34.230 --> 00:13:36.090
Listen another Lowy,
324
00:13:36.090 --> 00:13:39.360
why don't you address what's going to be
325
00:13:39.360 --> 00:13:40.890
the state police argument.
326
00:13:40.890 --> 00:13:44.509
Which is that the rule 62 comes from
327
00:13:44.509 --> 00:13:49.509
the enabling statute 22C Section 3, that's its source.
328
00:13:51.389 --> 00:13:54.321
And that when you look at the Perry Law, the may is,
329
00:13:54.321 --> 00:13:57.240
is as Justice George has suggested,
330
00:13:57.240 --> 00:13:58.890
they may use it or they may not use it,
331
00:13:58.890 --> 00:14:02.973
but if they do use it, a suspension under this section,
332
00:14:04.260 --> 00:14:05.850
the section meaning the Perry Law,
333
00:14:05.850 --> 00:14:07.930
any person, so suspended meaning,
334
00:14:07.930 --> 00:14:10.770
so suspended under the Perry Law,
335
00:14:10.770 --> 00:14:13.645
any such suspension, they're going to say,
336
00:14:13.645 --> 00:14:17.970
that clearly indicates that the reimbursement,
337
00:14:17.970 --> 00:14:22.174
if the criminal prosecution doesn't go anywhere
338
00:14:22.174 --> 00:14:25.500
is under the Perry Law.
339
00:14:25.500 --> 00:14:27.210
And they're going to argue that,
340
00:14:27.210 --> 00:14:31.140
if the suspension isn't under the Perry Law,
341
00:14:31.140 --> 00:14:33.287
then there is no reimbursement.
342
00:14:33.287 --> 00:14:36.682
Yes, Your Honor, that goes back to the primary issue here
343
00:14:36.682 --> 00:14:38.460
is whether or not the state police
344
00:14:38.460 --> 00:14:39.480
have that option to do that.
345
00:14:39.480 --> 00:14:42.450
And yes, 22C Section 3 provides the Cornel
346
00:14:42.450 --> 00:14:43.721
with that power to create these rules
347
00:14:43.721 --> 00:14:45.250
and internal rules and regulations.
348
00:14:45.250 --> 00:14:47.174
But those internal rules and regulations
349
00:14:47.174 --> 00:14:50.497
must be compliant with existing law such as the Perry Law
350
00:14:50.497 --> 00:14:52.200
there's on the books.
351
00:14:52.200 --> 00:14:54.360
For instance, the Colonel can't go
352
00:14:54.360 --> 00:14:57.510
start making internal regulations within state police
353
00:14:57.510 --> 00:15:00.570
that conflict with other other laws out there, Your Honor.
354
00:15:00.570 --> 00:15:01.613
just like--
355
00:15:01.613 --> 00:15:04.410
But they're gonna say that the regulations
356
00:15:04.410 --> 00:15:06.720
comes from the enabling statute
357
00:15:06.720 --> 00:15:10.800
so that the regulation doesn't trump the Perry Law,
358
00:15:10.800 --> 00:15:12.394
the source of the regulation.
359
00:15:12.394 --> 00:15:17.394
The delegation is from 22C Section 3.
360
00:15:17.474 --> 00:15:18.510
Yes, Your Honor
361
00:15:18.510 --> 00:15:19.710
I agree with you, Your Honor,
362
00:15:19.710 --> 00:15:21.835
but I would suggest that just simply
363
00:15:21.835 --> 00:15:24.120
the fact that the Colonel has that power,
364
00:15:24.120 --> 00:15:28.106
the Colonel cannot create internal procedures and policies
365
00:15:28.106 --> 00:15:30.303
that conflict with the existing law.
366
00:15:32.130 --> 00:15:33.810
Can I ask one follow-up question?
367
00:15:33.810 --> 00:15:34.950
Shift to your question?
368
00:15:34.950 --> 00:15:37.143
Which is the legislative history.
369
00:15:38.130 --> 00:15:43.130
The Perry Law is passed, what's the origin of it?
370
00:15:43.500 --> 00:15:44.759
It has to do with a firing
371
00:15:44.759 --> 00:15:47.550
of a high-level government official, right?
372
00:15:47.550 --> 00:15:48.383
Yes, your Honor.
373
00:15:48.383 --> 00:15:50.524
It was the first handle.
374
00:15:50.524 --> 00:15:54.151
It was put forth by the Duxbury representative,
375
00:15:54.151 --> 00:15:59.151
I believe his name was Joseph Perry or Justin Perry.
376
00:15:59.340 --> 00:16:00.173
And it was a situation
377
00:16:00.173 --> 00:16:02.728
where they had the commissioner of
378
00:16:02.728 --> 00:16:06.777
I think the commissioner of public waterways
379
00:16:06.777 --> 00:16:08.489
was under indictment.
380
00:16:08.489 --> 00:16:11.690
And he was still operating in his official capacity.
381
00:16:11.690 --> 00:16:15.648
And the Globe article that I identified from 1962,
382
00:16:15.648 --> 00:16:17.222
that's as part of my addendum,
383
00:16:17.222 --> 00:16:19.276
identifies that that is one of the reasons
384
00:16:19.276 --> 00:16:22.500
why that Perry Law was being put forth.
385
00:16:22.500 --> 00:16:24.300
So does it have a distinct purpose,
386
00:16:24.300 --> 00:16:27.420
which is you've gotta sort of a high-level
387
00:16:27.420 --> 00:16:29.808
government official and you want to get him or her
388
00:16:29.808 --> 00:16:33.834
out of the job immediately without any process
389
00:16:33.834 --> 00:16:35.643
besides a notice.
390
00:16:36.874 --> 00:16:41.874
So it has a sort of a distinct aspect to it.
391
00:16:45.254 --> 00:16:46.620
Do you agree with that or?
392
00:16:46.620 --> 00:16:48.600
Your Honor, that's why it was initially created.
393
00:16:48.600 --> 00:16:53.600
I mean that is how the court has treated it as well.
394
00:16:53.730 --> 00:16:54.563
I think the language is the,
395
00:16:54.563 --> 00:16:56.312
to deal with the untenable situation,
396
00:16:56.312 --> 00:17:01.312
where you have someone in a position of a public employment
397
00:17:02.880 --> 00:17:03.713
who is also performing
398
00:17:03.713 --> 00:17:05.490
their duties but also being indicted.
399
00:17:05.490 --> 00:17:07.650
They wanted an opportunity to have that person
400
00:17:07.650 --> 00:17:09.084
not be in their official capacity anymore.
401
00:17:09.084 --> 00:17:11.084
That is the purpose of it, Your Honor.
402
00:17:11.084 --> 00:17:12.569
But it also, Your honor,
403
00:17:12.569 --> 00:17:15.510
in that same vein as the court has addressed this
404
00:17:15.510 --> 00:17:17.202
and as this court specifically has addressed it,
405
00:17:17.202 --> 00:17:20.190
is that the converse should also be true,
406
00:17:20.190 --> 00:17:21.420
a fundamental fairness.
407
00:17:21.420 --> 00:17:25.290
If this individual is indicted and they're suspended,
408
00:17:25.290 --> 00:17:26.340
if they're not found guilty,
409
00:17:26.340 --> 00:17:27.840
then they should receive their back pay
410
00:17:27.840 --> 00:17:29.785
and their back benefits.
411
00:17:29.785 --> 00:17:31.460
But Your Honor, I think the really,
412
00:17:31.460 --> 00:17:33.161
the central argument here though, Your Honor,
413
00:17:33.161 --> 00:17:35.730
I need to keep going back to it because--
414
00:17:35.730 --> 00:17:37.143
Wait a minute, I'm sorry.
415
00:17:38.220 --> 00:17:40.681
When I hear I need to go back to it,
416
00:17:40.681 --> 00:17:43.558
and we past time, we're gonna, I'm ask you to stop.
417
00:17:43.558 --> 00:17:44.457
] I'm sorry,I didn't even realize that.
418
00:17:44.457 --> 00:17:46.410
No, no, no problem. Thank you.
419
00:17:46.410 --> 00:17:47.873
Thank you very much Your Honors.
420
00:17:50.130 --> 00:17:52.113
And I'll ask Attorney Brunelli.
421
00:17:55.649 --> 00:17:57.510
Good morning. May it please the court.
422
00:17:57.510 --> 00:17:58.650
My name is Dan Brunelli.
423
00:17:58.650 --> 00:18:01.451
I am Staff Counsel for the Department of State Police.
424
00:18:01.451 --> 00:18:03.419
The decision of the spirit court judge
425
00:18:03.419 --> 00:18:07.080
to award summary judgment to the department,
426
00:18:07.080 --> 00:18:10.080
should be affirmed as there was no error of law.
427
00:18:10.080 --> 00:18:14.550
It's a department's position that Chapter 30, Section 59
428
00:18:14.550 --> 00:18:17.700
is a discretionary statutory tool
429
00:18:17.700 --> 00:18:21.578
or remedy that state agencies can use
430
00:18:21.578 --> 00:18:24.300
based on the plain language of the statute,
431
00:18:24.300 --> 00:18:25.468
the legislative history,
432
00:18:25.468 --> 00:18:27.575
and then subsequent legislative enactments.
433
00:18:27.575 --> 00:18:29.678
Can you help us out as far as other state agencies
434
00:18:29.678 --> 00:18:32.767
who else have inner logs to the Perry Law?
435
00:18:32.767 --> 00:18:36.780
I was unable in the case law
436
00:18:36.780 --> 00:18:39.360
to find any equivalent state agency.
437
00:18:39.360 --> 00:18:43.646
You have the case law talking about removal
438
00:18:43.646 --> 00:18:45.510
through civil service
439
00:18:45.510 --> 00:18:47.970
after a suspension of the Perry Law is done.
440
00:18:47.970 --> 00:18:50.040
But beyond the Department of State Police,
441
00:18:50.040 --> 00:18:53.940
I was unable to find any case law of other state agencies
442
00:18:53.940 --> 00:18:58.470
that have a temporary removal statute
443
00:18:58.470 --> 00:19:00.461
as a result of an indictment or misconduct.
444
00:19:00.461 --> 00:19:05.461
I would note that while the Article 6 is dated 2001,
445
00:19:07.050 --> 00:19:10.980
there is case law from the 70s and the 1940s
446
00:19:10.980 --> 00:19:14.970
that relate to the department's removal statutes
447
00:19:14.970 --> 00:19:16.350
and trial board statutes,
448
00:19:16.350 --> 00:19:20.190
specifically O'Hara versus the Commissioner Public Safety
449
00:19:20.190 --> 00:19:25.020
from 1971 in which talks about removal because of misconduct
450
00:19:25.020 --> 00:19:27.930
or crimes or violations of rules
451
00:19:27.930 --> 00:19:31.190
and regulations and also Concannon versus--
452
00:19:31.190 --> 00:19:34.980
So the executive branch doesn't have any processes
453
00:19:34.980 --> 00:19:38.070
for terminating non-union employees.
454
00:19:38.070 --> 00:19:40.210
They don't have their own internal procedures.
455
00:19:40.210 --> 00:19:42.319
Well, I think there's a difference
456
00:19:42.319 --> 00:19:44.125
for the Department of State Police,
457
00:19:44.125 --> 00:19:48.750
there's a difference between temporary removal from--
458
00:19:48.750 --> 00:19:50.580
I understand the state police process,
459
00:19:50.580 --> 00:19:53.473
but if I work in health and human services
460
00:19:53.473 --> 00:19:55.830
and I am an executive employee,
461
00:19:55.830 --> 00:19:58.530
I'm not in a union and I get terminated.
462
00:19:58.530 --> 00:20:00.156
There are no internal procedures
463
00:20:00.156 --> 00:20:02.927
that you're aware of for those.
464
00:20:02.927 --> 00:20:05.910
And I mean we've got all of government out there,
465
00:20:05.910 --> 00:20:07.443
most of the state,
466
00:20:08.610 --> 00:20:12.876
a lot of them are in unions and unions have processes.
467
00:20:12.876 --> 00:20:15.090
Again, I'm gonna ask you the same question
468
00:20:15.090 --> 00:20:19.402
I asked Mr. Bay, which is does the union trump,
469
00:20:19.402 --> 00:20:21.330
do we know whether
470
00:20:21.330 --> 00:20:24.060
collective bargaining trump's the Perry Law
471
00:20:24.060 --> 00:20:25.920
or the Perry Law trump's collective bargaining?
472
00:20:25.920 --> 00:20:27.810
Is that one of those statutes that addressed?
473
00:20:27.810 --> 00:20:30.450
So what I would say on the case law
474
00:20:30.450 --> 00:20:34.410
is that prior, this court has found that
475
00:20:34.410 --> 00:20:37.140
it's a temporary removal statute,
476
00:20:37.140 --> 00:20:39.480
that it's not a termination statute.
477
00:20:39.480 --> 00:20:41.910
If an individual is convicted
478
00:20:41.910 --> 00:20:44.744
and then wants to return to service
479
00:20:44.744 --> 00:20:48.180
or if they're not convicted a state agency
480
00:20:48.180 --> 00:20:50.160
or the functional municipal
481
00:20:50.160 --> 00:20:52.650
equivalent under 268A, section 25,
482
00:20:52.650 --> 00:20:54.120
which is the same language,
483
00:20:54.120 --> 00:20:56.610
they can still go through their normal processes.
484
00:20:56.610 --> 00:21:00.450
And specifically that is the case of Brighton strike
485
00:21:00.450 --> 00:21:02.040
that Commissioners of Civil Service
486
00:21:02.040 --> 00:21:04.470
versus municipal court of Brighton District Court.
487
00:21:04.470 --> 00:21:05.303
What's the site for that?
488
00:21:05.303 --> 00:21:07.084
I don't have it in front of me, I apologize.
489
00:21:07.084 --> 00:21:08.850
Is that an appellate position?
490
00:21:08.850 --> 00:21:09.837
That's brittle, you said?
491
00:21:09.837 --> 00:21:12.300
No, that is the Commissioners of Civil Service
492
00:21:12.300 --> 00:21:15.240
versus the Municipal Court of Brighton District.
493
00:21:15.240 --> 00:21:16.844
And in that particular case,
494
00:21:16.844 --> 00:21:19.413
the Boston Police Commissioner,
495
00:21:19.413 --> 00:21:24.413
temporarily removed an individual from at office
496
00:21:24.780 --> 00:21:26.852
as law enforcement officer for the City of Boston
497
00:21:26.852 --> 00:21:28.500
because he was indicted.
498
00:21:28.500 --> 00:21:30.540
That was done pursuant to the municipal
499
00:21:30.540 --> 00:21:33.480
equivalent to 68A section 25.
500
00:21:33.480 --> 00:21:34.788
Is this an appeals court decision?
501
00:21:34.788 --> 00:21:36.180
I believe so, yes.
502
00:21:36.180 --> 00:21:37.290
I vaguely remember this.
503
00:21:37.290 --> 00:21:38.996
And then he was found not guilty.
504
00:21:38.996 --> 00:21:41.107
The commissioner at that point said,
505
00:21:41.107 --> 00:21:42.967
"Well, even though you're not found guilty
506
00:21:42.967 --> 00:21:45.810
"based on the evidence I'm moving to discharge you."
507
00:21:45.810 --> 00:21:48.960
They went through the civil service process of Chapter 31
508
00:21:48.960 --> 00:21:50.560
and the court upheld that
509
00:21:50.560 --> 00:21:52.564
even though he was found not guilty,
510
00:21:52.564 --> 00:21:54.780
they could still discharge
511
00:21:54.780 --> 00:21:57.150
because of the civil service jurisdiction.
512
00:21:57.150 --> 00:21:58.838
The civil service could just discharge him
513
00:21:58.838 --> 00:22:01.380
despite the fact that he was found not guilty.
514
00:22:01.380 --> 00:22:03.270
So there are removal statutes.
515
00:22:03.270 --> 00:22:05.380
I think the key distinction here is that it's not a--
516
00:22:05.380 --> 00:22:07.170
Can I just push you then?
517
00:22:07.170 --> 00:22:09.103
'Cause again, the civil service laws
518
00:22:09.103 --> 00:22:12.180
in some respects apply to a huge number
519
00:22:12.180 --> 00:22:14.340
of executive branch employees.
520
00:22:14.340 --> 00:22:16.980
So, does that Brighton case
521
00:22:16.980 --> 00:22:19.020
say then that the civil service law,
522
00:22:19.020 --> 00:22:20.580
you can go the civil service route
523
00:22:20.580 --> 00:22:22.375
or you can go the Perry route?
524
00:22:22.375 --> 00:22:24.510
No, there are two distinct things.
525
00:22:24.510 --> 00:22:27.090
I think if someone is being suspended under the Perry Law,
526
00:22:27.090 --> 00:22:28.770
based on the plain language of the statute,
527
00:22:28.770 --> 00:22:31.352
there's no review of that decision.
528
00:22:31.352 --> 00:22:33.330
The first paragraph says,
529
00:22:33.330 --> 00:22:35.520
again, there's the discretionary may,
530
00:22:35.520 --> 00:22:37.320
but then when it talks about notice,
531
00:22:37.320 --> 00:22:40.890
it said notice shall be given via letter
532
00:22:40.890 --> 00:22:43.860
and also service to the Secretary of State
533
00:22:43.860 --> 00:22:46.128
and the suspension becomes automatic.
534
00:22:46.128 --> 00:22:47.520
That's all it takes.
535
00:22:47.520 --> 00:22:48.496
Is there an indictment,
536
00:22:48.496 --> 00:22:51.300
an invocation that we're going to use the Perry Law?
537
00:22:51.300 --> 00:22:53.280
Here's a notice that we're using the Perry Law.
538
00:22:53.280 --> 00:22:54.591
But it doesn't say they have to,
539
00:22:54.591 --> 00:22:58.110
the statute doesn't say that the notice
540
00:22:58.110 --> 00:23:01.590
requires the invocation of the Perry Law.
541
00:23:01.590 --> 00:23:06.590
I would say read together with all five paragraphs
542
00:23:06.634 --> 00:23:08.070
where they're talking,
543
00:23:08.070 --> 00:23:09.915
they may suspend under the statute.
544
00:23:09.915 --> 00:23:13.770
Notice of said suspension has to be given.
545
00:23:13.770 --> 00:23:16.380
And that the second and third paragraph,
546
00:23:16.380 --> 00:23:18.840
when they're talking of the ramifications of that,
547
00:23:18.840 --> 00:23:20.479
they say anyone so suspended,
548
00:23:20.479 --> 00:23:23.820
a suspension under the statute.
549
00:23:23.820 --> 00:23:25.920
And I think when you have that language,
550
00:23:25.920 --> 00:23:28.080
it means that it was a discretionary tool
551
00:23:28.080 --> 00:23:31.521
that state agencies could use but not do not have to use.
552
00:23:31.521 --> 00:23:33.570
I think we're in a very different position
553
00:23:33.570 --> 00:23:35.900
if the legislature said anyone suspended
554
00:23:35.900 --> 00:23:38.130
as a result of an indictment
555
00:23:38.130 --> 00:23:39.930
should be given these rights.
556
00:23:39.930 --> 00:23:40.763
They don't say that.
557
00:23:40.763 --> 00:23:42.287
They say anyone suspended under this section,
558
00:23:42.287 --> 00:23:44.310
which I think based on the plain language
559
00:23:44.310 --> 00:23:46.012
is a crucial, crucial distinction.
560
00:23:46.012 --> 00:23:47.373
Can I ask you about that then
561
00:23:47.373 --> 00:23:51.900
because the last paragraph of the Perry Law
562
00:23:51.900 --> 00:23:56.900
does not say suspended under this section
563
00:23:57.030 --> 00:23:59.880
or so suspended as the other paragraphs do.
564
00:23:59.880 --> 00:24:01.542
Instead it just says,
565
00:24:01.542 --> 00:24:03.247
"If the criminal proceeding
566
00:24:03.247 --> 00:24:06.847
"against this person suspended are terminated,
567
00:24:06.847 --> 00:24:09.346
"he shall receive all compensation."
568
00:24:09.346 --> 00:24:12.270
And I acknowledge that, but I think it does have,
569
00:24:12.270 --> 00:24:14.010
as a trial court judge pointed out,
570
00:24:14.010 --> 00:24:15.990
it has to be read harmoniously together.
571
00:24:15.990 --> 00:24:18.330
Right, and I guess my question for you is,
572
00:24:18.330 --> 00:24:20.730
if it's read harmoniously with the rest
573
00:24:20.730 --> 00:24:21.563
and the rest said,
574
00:24:21.563 --> 00:24:23.910
so suspended under this section
575
00:24:23.910 --> 00:24:24.983
and this one doesn't,
576
00:24:24.983 --> 00:24:28.860
usually that means something in statutory construction.
577
00:24:28.860 --> 00:24:30.690
Usually in statutory construction
578
00:24:30.690 --> 00:24:34.219
where the legislature has chosen in other versions
579
00:24:34.219 --> 00:24:37.793
to note the suspension under this section
580
00:24:37.793 --> 00:24:41.490
and doesn't specifically under this last paragraph,
581
00:24:41.490 --> 00:24:42.702
it means something.
582
00:24:42.702 --> 00:24:47.160
I would agree if the 30, Section 59
583
00:24:47.160 --> 00:24:49.140
contained multiple avenues,
584
00:24:49.140 --> 00:24:51.330
multiple types of suspension,
585
00:24:51.330 --> 00:24:54.321
but where Section 59 relates specifically
586
00:24:54.321 --> 00:24:57.630
to a invoking the Perry Law
587
00:24:57.630 --> 00:24:59.520
to suspend someone without pay that,
588
00:24:59.520 --> 00:25:01.358
so that suspended in the last paragraph
589
00:25:01.358 --> 00:25:02.790
still has to be read
590
00:25:02.790 --> 00:25:05.310
and relates back to the third paragraph,
591
00:25:05.310 --> 00:25:07.650
the second paragraph and the first paragraph
592
00:25:07.650 --> 00:25:09.450
where it talks about so suspended.
593
00:25:09.450 --> 00:25:12.527
Where there's only that portion of the statute,
594
00:25:12.527 --> 00:25:15.240
there's no other alternatives under 59.
595
00:25:15.240 --> 00:25:17.844
It's one procedure that it read
596
00:25:17.844 --> 00:25:20.670
a suspension under the statute
597
00:25:20.670 --> 00:25:22.530
has to receive their back pay.
598
00:25:22.530 --> 00:25:24.061
Not anyone suspended because of an indictment
599
00:25:24.061 --> 00:25:24.894
receives back pay.
600
00:25:24.894 --> 00:25:25.920
[Justice Wendlandt] Even though
601
00:25:25.920 --> 00:25:27.444
that's literally what it says.
602
00:25:27.444 --> 00:25:32.280
Because of the narrowness of the statute.
603
00:25:32.280 --> 00:25:33.969
I would say that it has to be read that way.
604
00:25:33.969 --> 00:25:38.198
Counsel then would you disagree with your brother's view
605
00:25:38.198 --> 00:25:43.106
that if a suspension were imposed under the Perry Law
606
00:25:43.106 --> 00:25:47.028
that the person that was being suspended
607
00:25:47.028 --> 00:25:51.480
could then invoke the procedures of another vertical
608
00:25:51.480 --> 00:25:52.800
to get a hearing?
609
00:25:52.800 --> 00:25:56.460
I would argue, no, because it would be futile.
610
00:25:56.460 --> 00:25:58.830
There's no exception under the Perry Law.
611
00:25:58.830 --> 00:26:00.300
There's no right of a hearing.
612
00:26:00.300 --> 00:26:03.120
There's no right of appeal to the trial court
613
00:26:03.120 --> 00:26:05.460
or the direct appeal to the appeals court.
614
00:26:05.460 --> 00:26:07.940
If you are indicted and you are suspended
615
00:26:07.940 --> 00:26:09.202
under the Perry Law,
616
00:26:09.202 --> 00:26:12.090
it's indefinite until that indictment is removed.
617
00:26:12.090 --> 00:26:16.290
Right, but the suspension could be removed
618
00:26:16.290 --> 00:26:18.270
before the indictment's cleared up
619
00:26:18.270 --> 00:26:21.240
if it's going under the state police procedures,
620
00:26:21.240 --> 00:26:22.073
couldn't it?
621
00:26:22.073 --> 00:26:25.740
If it's under the Perry Law, it's not.
622
00:26:25.740 --> 00:26:27.930
I would suggest based on the plain language
623
00:26:27.930 --> 00:26:29.727
that if you are invoking the Perry Law,
624
00:26:29.727 --> 00:26:31.980
that suspension without pay
625
00:26:31.980 --> 00:26:35.520
is in force until that indictment is cleared.
626
00:26:35.520 --> 00:26:36.990
But you're saying then that the procedures
627
00:26:36.990 --> 00:26:39.121
the state police have for suspension
628
00:26:39.121 --> 00:26:41.473
or termination would not apply at all?
629
00:26:41.473 --> 00:26:43.533
Correct, and I just to be clear,
630
00:26:45.000 --> 00:26:46.980
there's two distinct for the Department of the State police.
631
00:26:46.980 --> 00:26:47.887
There's two distinct things here.
632
00:26:47.887 --> 00:26:49.590
There's the duty status,
633
00:26:49.590 --> 00:26:51.840
which we use in this case,
634
00:26:51.840 --> 00:26:54.913
which is we say because of maybe an internal event
635
00:26:54.913 --> 00:26:59.340
like an internal affairs investigation or an external event,
636
00:26:59.340 --> 00:27:01.848
criminal complaint issued arrest or indictment.
637
00:27:01.848 --> 00:27:04.808
We have a question of whether you should be fit for duty
638
00:27:04.808 --> 00:27:07.446
and carry on the responsibilities
639
00:27:07.446 --> 00:27:09.180
of a law enforcement officer.
640
00:27:09.180 --> 00:27:10.920
Therefore, we have this procedure
641
00:27:10.920 --> 00:27:12.616
where you get a pre-deprivation hearing,
642
00:27:12.616 --> 00:27:14.880
you can make your case.
643
00:27:14.880 --> 00:27:18.990
The board has discretion of four choices, full duty,
644
00:27:18.990 --> 00:27:19.920
restricted duties,
645
00:27:19.920 --> 00:27:22.260
suspended with pay or suspended without pay.
646
00:27:22.260 --> 00:27:23.940
And there's also a right of appeal
647
00:27:23.940 --> 00:27:25.552
that is different than termination,
648
00:27:25.552 --> 00:27:28.620
where termination happens or discipline happens
649
00:27:28.620 --> 00:27:30.330
as a different part of Article 6.
650
00:27:30.330 --> 00:27:31.467
That's the trial board process.
651
00:27:31.467 --> 00:27:33.210
And under the statute though,
652
00:27:33.210 --> 00:27:37.410
there's nothing in the statute that says that the employer
653
00:27:37.410 --> 00:27:39.693
cannot change his or her mind
654
00:27:39.693 --> 00:27:43.863
about the suspension pending indictment.
655
00:27:44.730 --> 00:27:47.430
Under the plain language. Yes, I would agree with that.
656
00:27:47.430 --> 00:27:48.840
Can you address the impact
657
00:27:48.840 --> 00:27:51.000
of the new police accountability legislation
658
00:27:51.000 --> 00:27:52.170
on legislative intent?
659
00:27:52.170 --> 00:27:55.440
So I would say that if the court accepts
660
00:27:55.440 --> 00:27:56.370
my brother's arguments
661
00:27:56.370 --> 00:27:58.756
that they can be viewed together going forward,
662
00:27:58.756 --> 00:28:01.020
I would suggest there is conflict
663
00:28:01.020 --> 00:28:05.250
now based on 22C Section 13 part B,
664
00:28:05.250 --> 00:28:09.660
in that the legislature essentially codified Article 6.
665
00:28:09.660 --> 00:28:12.637
And it says, "If you are indicted,
666
00:28:12.637 --> 00:28:14.167
"criminal complaint issued against you,
667
00:28:14.167 --> 00:28:17.857
"if you're referred to a prosecution agency
668
00:28:17.857 --> 00:28:21.008
"for an investigation or other means,
669
00:28:21.008 --> 00:28:24.510
"Colonel can suspend you without pay."
670
00:28:24.510 --> 00:28:26.160
Prior to doing that,
671
00:28:26.160 --> 00:28:29.610
you have to get a hearing similar to Article 6.
672
00:28:29.610 --> 00:28:31.320
The legislature sought it fit
673
00:28:31.320 --> 00:28:33.630
to include that for the first year,
674
00:28:33.630 --> 00:28:34.830
if you're suspended without pay,
675
00:28:34.830 --> 00:28:37.211
you cannot appeal that to the Civil Service Commission
676
00:28:37.211 --> 00:28:40.860
under Chapter 31, Sections 41 through 45.
677
00:28:40.860 --> 00:28:43.170
However you can appeal it,
678
00:28:43.170 --> 00:28:46.286
pursuant to mass General Law at 22C, Section 43,
679
00:28:46.286 --> 00:28:48.157
which says, "Anyone that's aggrieved
680
00:28:48.157 --> 00:28:49.567
"by the order of a colonel
681
00:28:49.567 --> 00:28:51.397
"has a right to another agency hearing.
682
00:28:51.397 --> 00:28:52.747
"If you're still aggrieved
683
00:28:52.747 --> 00:28:54.397
"by that secondary agency hearing
684
00:28:54.397 --> 00:28:55.867
"by the Department of State Police,
685
00:28:55.867 --> 00:28:57.727
"you can appeal that to the superior court
686
00:28:57.727 --> 00:28:58.990
"under 30A review."
687
00:28:58.990 --> 00:29:00.756
They included that in the statute
688
00:29:00.756 --> 00:29:02.631
and then they also included the final part
689
00:29:02.631 --> 00:29:05.824
that says, "If you're still suspended after a year
690
00:29:05.824 --> 00:29:09.097
"and there's been a material change in circumstances,
691
00:29:09.097 --> 00:29:10.744
"you can petition the Colonel again,
692
00:29:10.744 --> 00:29:13.252
"ask for another hearing after that year,
693
00:29:13.252 --> 00:29:16.057
"if you were still suspended without pay,
694
00:29:16.057 --> 00:29:17.077
"you can then appeal
695
00:29:17.077 --> 00:29:18.727
"to the Civil Service Commission
696
00:29:18.727 --> 00:29:22.147
"pursuant to Sections 41 through 45 of Chapter 31."
697
00:29:22.147 --> 00:29:25.530
So I would suggest that there is conflict going forward
698
00:29:25.530 --> 00:29:27.780
where you have the legislature
699
00:29:27.780 --> 00:29:30.120
defining specific requirements
700
00:29:30.120 --> 00:29:32.100
for the Department of State Police.
701
00:29:32.100 --> 00:29:33.060
If they want to suspend
702
00:29:33.060 --> 00:29:35.670
someone without pay pursuant to an indictment.
703
00:29:35.670 --> 00:29:39.150
And then none of that is mentioned under the Perry Law.
704
00:29:39.150 --> 00:29:40.740
So if we invoke the Perry Law,
705
00:29:40.740 --> 00:29:45.740
which is notice, automatic no hearing going forward
706
00:29:46.110 --> 00:29:48.150
until the indictment is reviewed,
707
00:29:48.150 --> 00:29:52.740
you're then in conflict with Section 13 of Section B.
708
00:29:52.740 --> 00:29:55.020
And so where you have that tension
709
00:29:55.020 --> 00:29:57.210
and where the legislature sought it fit,
710
00:29:57.210 --> 00:30:00.249
not to mention Chapter 30, Section 49,
711
00:30:00.249 --> 00:30:03.663
when it wrote the new Section of Chapter 13.
712
00:30:04.530 --> 00:30:06.890
The conclusion from that I would suggest you can draw
713
00:30:06.890 --> 00:30:09.300
is that the Perry Law is discretionary.
714
00:30:09.300 --> 00:30:11.040
That it's a remedy that it can be used,
715
00:30:11.040 --> 00:30:12.390
but it's not automatic.
716
00:30:12.390 --> 00:30:14.149
Otherwise it would've repealed the Perry Law
717
00:30:14.149 --> 00:30:16.230
because it would've been inconsistent
718
00:30:16.230 --> 00:30:18.063
since there's no right to a hearing.
719
00:30:19.440 --> 00:30:21.330
It would repeal the Perry Law to the department.
720
00:30:21.330 --> 00:30:25.260
I would say it would not repeal the Perry law in whole.
721
00:30:25.260 --> 00:30:28.500
It would just say that if you're using 13B,
722
00:30:28.500 --> 00:30:29.790
you're not using the Perry Law,
723
00:30:29.790 --> 00:30:31.710
you're using the department's procedures
724
00:30:31.710 --> 00:30:33.330
that has been laid out by the legislature
725
00:30:33.330 --> 00:30:35.580
that was codified in Article 6.
726
00:30:35.580 --> 00:30:36.450
And you're not using the Perry Law in that situation.
727
00:30:36.450 --> 00:30:39.450
Counsel, I have a question about paragraph 3
728
00:30:39.450 --> 00:30:40.283
of the statute.
729
00:30:40.283 --> 00:30:42.337
It says, "A suspension under this section
730
00:30:42.337 --> 00:30:44.617
"shall not in any way
731
00:30:44.617 --> 00:30:47.857
"be used to prejudice the rights of the suspended person
732
00:30:47.857 --> 00:30:49.349
"either civilly or criminally."
733
00:30:49.349 --> 00:30:50.907
What do you think that means?
734
00:30:50.907 --> 00:30:54.045
I would say that based, there's again,
735
00:30:54.045 --> 00:30:56.174
I didn't see any case law earlier to that,
736
00:30:56.174 --> 00:30:58.395
but the fact that they were removed from service
737
00:30:58.395 --> 00:31:01.020
cannot be used in the criminal prosecution
738
00:31:01.020 --> 00:31:01.853
against them.
739
00:31:01.853 --> 00:31:04.050
But what about the civil part.
740
00:31:04.050 --> 00:31:07.260
That a judge or if there's a civil litigation
741
00:31:07.260 --> 00:31:11.070
related to the position of that,
742
00:31:11.070 --> 00:31:13.770
that the judge or jury could not draw a negative inference
743
00:31:13.770 --> 00:31:14.880
that they were suspended pursuant to the Perry Law.
744
00:31:14.880 --> 00:31:15.733
But you would say
745
00:31:15.733 --> 00:31:17.161
it'd have to be a a court case.
746
00:31:17.161 --> 00:31:18.481
Correct, that's how I would feel.
747
00:31:18.481 --> 00:31:21.150
Not, it wouldn't be the regulations
748
00:31:21.150 --> 00:31:23.685
or any new process system
749
00:31:23.685 --> 00:31:25.593
that's been set up internally in the department.
750
00:31:25.593 --> 00:31:26.892
No, I would say civilly or criminally
751
00:31:26.892 --> 00:31:29.340
would be that you couldn't relate
752
00:31:29.340 --> 00:31:31.881
to specifically a court process.
753
00:31:31.881 --> 00:31:35.456
And then the final point that I would like to make is that
754
00:31:35.456 --> 00:31:38.460
well, that the case law is limited on this,
755
00:31:38.460 --> 00:31:41.100
I would suggest, well, it's not exactly similar.
756
00:31:41.100 --> 00:31:43.830
The case at this court decided last year of more
757
00:31:43.830 --> 00:31:46.500
versus the executive office of the trial court
758
00:31:46.500 --> 00:31:51.500
has some precedent in this type of case,
759
00:31:51.780 --> 00:31:54.600
where you have this court found in that case,
760
00:31:54.600 --> 00:31:56.980
that the trial court administrator pursuant to
761
00:31:57.886 --> 00:32:00.774
219, 211B or 219B,
762
00:32:00.774 --> 00:32:03.660
whatever their enabling statute was,
763
00:32:03.660 --> 00:32:07.410
the trial court could promulgate regulations
764
00:32:07.410 --> 00:32:11.190
related to the removal of trial court employees.
765
00:32:11.190 --> 00:32:12.180
In that particular case,
766
00:32:12.180 --> 00:32:13.020
this court found that,
767
00:32:13.020 --> 00:32:15.750
because they had promulgated regulations to that statute
768
00:32:15.750 --> 00:32:18.679
that warranted a removal without pay,
769
00:32:18.679 --> 00:32:21.265
with no avenue for back pay.
770
00:32:21.265 --> 00:32:23.901
That that was fine based on the enabling statute.
771
00:32:23.901 --> 00:32:26.516
And I would suggest it's a similar position here
772
00:32:26.516 --> 00:32:29.034
where the state police has its own enabling statute
773
00:32:29.034 --> 00:32:32.280
where it's promulgated regulations that include
774
00:32:32.280 --> 00:32:35.310
that the step process of a notice predation hearing
775
00:32:35.310 --> 00:32:38.226
and then a writer review it is permissible
776
00:32:38.226 --> 00:32:40.320
under that enabling statute in the Perry Law
777
00:32:40.320 --> 00:32:41.253
is discretionary.
778
00:32:43.170 --> 00:32:45.870
Seeing no further questions, I would rest on my brief.
779
00:49:33.567 --> 00:49:36.990
SCJ-13269
780
00:49:36.990 --> 00:49:41.990
Le Fort Enterprises, Inc V Lantern 18, LLC and others.