STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPERIOR COURT
KENT COUNTY

GIRARD BOUCHARD, IN HIS CAPACITY AS

PRESIDENT OF THE BOARD OF DIRECTORS
OF THE CENTRAL COVENTRY FIRE DISTRICT,
Plaintiff

K.B. NO. 2012-1150

vs.
CENTRAL COVENTRY FIRE DISTRICT,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF CENTRAL COVENTRY FIRE
DISTRICTS REQUEST FOR DECLARATORY RELIEF
Central Coventry Fire District (CCFD) seeks the following declarations from the
Court:
DECLARATIONS SOUGHT1
1. The two CBAs negotiated between the Union and the State Receiver are not binding
on CCFD. [See: Exhibit 1, CCFDs First Amended Complaint, Count I.]
2. The taxpayers of CCFD are not required to fund, through the raising of taxes,
otherwise valid collective bargaining agreements entered into by the Board of
Directors. [See: Exhibit 1, Count II.]
3. The taxpayers of CCFD have the right to the determine whether, and if so,
the methods, means, processes and personnel by which, fire prevention, fire
suppression and/or EMS services are to be provided in CCFD. [See: Exhibit 1, Count
II.]

The original questions have been re-phrased as a matter of convenience. As originally

written they were:
1. What is the obligation of the Board of Directors as to the terms of either of the
two (2) CBAs negotiated between the Union and the State Receiver?
2. Must the taxpayers of the CCFD fund, through the raising of taxes, the valid
collective bargaining agreements entered into by the Board of Directors?
3. Does the Charter, by virtue of the taxing authority, give the taxpayers the right to
determine the mechanism of how fire suppression and EMS services are provided
to the CCFD?

BACKGROUND
CCFD is a quasi-governmental entity created by the General Assembly through a
legislative charter in 1959. CCFD provides fire protection, emergency medical assistance,
and other services within a geographical region in the Town of Coventry. [See: Exhibit 2,
Charter and By-Laws.]
On October 15, 2012, CCFDs then-current Board of Directors filed a petition for
judicial receivership in the instant case. On October 16, 2012, the Superior Court appointed
Richard J. Land, Esq. (Attorney Land) as the Temporary Special Master in the Judicial
Receivership and on November 13, 2012, Attorney Land was appointed as the Permanent
Special Master. Per Order of this Court dated November 13, 2013, appointing the Permanent
Special Master, the Court imposed a stay applicable to all of CCFDs creditors. [See: Exhibit
3, Order Appointing Permanent Special Master, paragraph 13, November 12, 2013.]
On or about May 6, 2014 the General Assembly amended R.I.G.L. 45-9-1 et seq.
(the so-called Fiscal Stability Act or FSA) to include fire districts and CCFD became the
subject of a State-directed receivership under the FSA (State Receivership). Steven T.
Hartford (Receiver Hartford) was appointed the Receiver over the affairs of CCFD at that
time. On December 23, 2014, Receiver Hartford filed a Chapter 9 Bankruptcy Petition (Case
1:14-bk-12785, the Chapter 9 Case) thus putting CCFD into bankruptcy. On or about
January 5, 2015, Mark A. Pfeiffer (Receiver Pfeiffer) was appointed successor Receiver.
As part of the bankruptcy process, a pleading was filed by Receiver Pfeiffer (though
never heard by the Bankruptcy Court) to reject the collective bargaining agreement (CBA)
that was in place between CCFD (by and through a former Board of Directors) and the IAFF,

Local 3372 (Union).2

During the pendency of the Chapter 9 Case, and before a hearing was held on the
motion to reject the existing CBA, Receiver Pfeiffer and the Union negotiated two (2)
collective bargaining agreements: the first is titled, CCFD CBA FY 2015 with Exhibits A,
B, C, D, F [See: Exhibit 5, 2015 CBA] and was effective from April 19, 2015 August 31,
2015; the second, titled, CCFD CBA FY 2016-2020 with Exhibits A, B, C, D, F [See:
Exhibit 6, 2015-2020 CBA] was ostensibly effective September 1, 2015 August 31, 2020.
A joint motion to approve the CBAs was filed by Receiver Pfeiffer and counsel for the
Union, however, neither agreement was approved by the Bankruptcy Court. The Bankruptcy
Court instructed that the approval of the CBAs was to be considered as part of the approval
and confirmation for the 5-Year Plan (Plan).
On September 17, 2015, Acting Director of the Department of Revenue, David M.
Sullivan (Director Sullivan) submitted a letter to the Receiver Pfeiffer informing him that
the State Receivership was to terminate on September 30, 2015. [See: Exhibit 7, Director
Sullivans Letter dated September 17, 2015.] On September 18, 2015, Receiver Pfeiffer filed
a Motion to Dismiss the Chapter 9 Case (along with all pending motions), and effectively
returned control of CCFD to the (present) Board of Directors (Board) as of October 1,
2015. The Board however did not take over CCFD in a vacuum CCFD was, immediately
prior to the State Receivership and subsequent Chapter 9 Case, subject to the instant state
court receivership. Thus, the case was transmitted back to the Superior Court.

There was a CBA between CCFD and the Union that was executed on July 24, 2011, with
an effective date of April 1, 2012 to March 31, 2015. [See: Exhibit 4, 2012-2015 CBA.]
Notwithstanding the State Receivers Petition to Reject the 2012-2015 CBA, it expired by its
terms on March 31, 2015 anyway.
2

On November 25, 2015, Judge Stern ruled (sua sponte) that the Superior Court has,
jurisdiction over the instant matter under 8-2-13 and 8-2-14 [and that] the Court will
not apply any receivership laws or entertain any motions brought pursuant to same. [See:
Exhibit 8, Decision and Order, dated November 25, 2015.]
The issues raised by CCFD relative to the relationship between the Board and the
Union, given the context of the now-terminated State Receivership, now must be addressed
by the Court as an actual case and controversy exists, particularly to instruct on what is that
relationship and who or what determines how, and whether, the fire suppression and EMS
service operations (including appropriation of monies by the taxpayers towards those
operations) should continue.
STANDARD OF REVIEW
A declaratory judgment is neither an action at law nor a suit in equity but a novel
statutory proceeding . . . . Northern Trust Co. v. Zoning Bd. of Review of Town of Westerly,
899 A.2d 517, 520, n.6 (R.I. 2006) (quoting Newport Amusement Co. v. Maher, 92 R.I. 51,
53, 166 A.2d 216, 217 (1960)). The purpose of the Uniform Declaratory Judgments Act
(UDJA) is to allow the trial justice to facilitate the termination of controversies. Bradford
Assocs. v. R.I. Div. of Purchases, 772 A.2d 485, 489 (R.I. 2001) (citations omitted). Thus, the
UDJA grants broad jurisdiction to the Superior Court to declare rights, status, and other legal
relations whether or not further relief is or could be claimed. Section 9-30-1; see also Sullivan
v. Chafee, 703 A.2d 748, 751 (R.I. 1997) (stating that trial courts decision to grant or to deny
declaratory relief under the [UDJA] is purely discretionary[]). Our Supreme Court has also
taught that [o]ne manner by which a determination of a management right may be available
to a city or town is through declaratory relief. Town of North Kingstown v. International

Association of Firefighters, Local 1651 AFL-CIO, 107 A.3d 304, 319 n.14 (R.I. 2015).
The UDJA gives a broad grant of jurisdiction to the Superior Court to determine the
rights of any person that may arise under a statute not in its appellate capacity but as a part of
its original jurisdiction. Canario v. Culhane, 752 A.2d 476, 479 (R.I. 2000) (citing Roch v.
Harrahy, 419 A.2d 827, 830 (R.I. 1980)). Thus, the Courts discretion concerning whether to
entertain the action itself [] is [] limited. Tucker Estates Charlestown, LLC at 3 (citing Perron
v. Treasurer of Woonsocket, 121 R.I. 781, 786, 403 A.2d 252, 255 (1979)). That said, it is
axiomatic that [a] declaratory-judgment action may not be used for the determination of
abstract questions or the rendering of advisory opinions, nor does it license litigants to fish in
judicial ponds for legal advice. Sullivan, 703 A.2d at 751 (internal citation and quotations
omitted). Nonetheless, the mere fact that a court is being asked to render an advisory opinion
does not automatically preclude a declaratory judgment in all situations. Id. at 752.
In a declaratory judgment action, the first order of business for the trial justice is to
determine whether a party has standing to sue. A standing inquiry focuses on the party who is
advancing the claim rather than on the issue the party seeks to have adjudicated. Bowen v.
Mollis, 945 A.2d 314, 317 (R.I. 2008). The requisite standing to prosecute a claim for relief
exists when the plaintiff has alleged that the challenged action has caused him [or her] injury
in fact, economic or otherwise[.] Id. (quoting Rhode Island Ophthalmological Society v.
Cannon, 113 R.I. 16, 22, 317 A.2d 124, 128 (1974)). Similarly, standing in a taxpayers suit is
established by ascertaining whether the person whose standing is challenged alleges that the
action in dispute will cause him or her an injury in fact, economic or otherwise. Rosen v.
Restrepo, 119 R.I. 398, 401, 380 A.2d 960, 962 (1977).

The purpose of declaratory judgment actions is to render disputes concerning the

legal rights and duties of parties justiciable without proof of a wrong committed by one party
against another, and thus facilitate the termination of controversies. 1 Anderson, Actions for
Declaratory Judgments 4 (2nd ed. 1951). Theroux v. Bay Assoc., Inc., 114 R.I. 746, 748,
339 A.2d 266, 267 (1975); Portsmouth Hosp. v. Indemnity Ins. Co., 109 N.H. 53, 242 A.2d
398 (1968); Davis v. State, 183 Md. 385, 37 A.2d 880 (1944). In light of their highly
remedial nature then declaratory judgment statutes should be liberally construed; they should
not be interpreted in a narrow or technical sense. Sherwood Medical Indus. Inc. v. Deknatel,
Inc., 512 F.2d 724 (8th Cir. 1975); Beacon Constr. Co. v. Matco Elec. Co., 521 F.2d 392 (2nd
Cir. 1975); Beaudoin v. State, 113 N.H. 559, 311 A.2d 310 (1973). Naturally, there remains
the prerequisite that the party seeking declaratory relief present the court with an actual
controversy. Malinou v. Powers, 114 R.I. 399, 404, 333 A.2d 420, 423 (1975); Goodyear
Loan Co. v. Little, 107 R.I. 629, 269 A.2d 542 (1970); Lamb v. Perry, 101 R.I. 538, 225
A.2d 521 (1967). Trial justices may not dispense with the traditional rules prohibiting them
from rendering advisory opinions or adjudicating hypothetical issues. Lamb v. Perry, supra.
DISCUSSION OF DECLARATIONS SOUGHT
A. The two CBAs negotiated between the Union and the State Receiver are not
binding on CCFD.
CCFD seeks a declaration that the Board need not comply with the terms of either of
the CBAs negotiated and executed between Receiver Pfeiffer and the Union because both of
them are void as an operation of law.3

For purposes of addressing this question, both CBAs are considered together, although, the
2015 CBA expired August 31, 2015 and is for that reason unenforceable, see Providence
Teachers v. Providence School Board, 689 A.2d 388, 393 n.2 (R.I. 1997) (an expired
contract has by its own terms released all its parties from their respective contractual
3

Indeed, the Board was left with two (2) CBAs that were not negotiated by them; the
financial obligations created by them were not approved by the voters of CCFD; the CBAs
were not approved by the Bankruptcy Court which had jurisdiction over their adoption
during the pendency of the Chapter 9 case; and, neither CBA was supported by Receiver
Pfeiffer or Director Sullivan. In addition, neither CBA could be (fully) funded now, given
CCFDs most recently adopted budget, which was for a six-month period.4
This inquiry must be made with the specific reservation of rights5 CCFD noted in its
communication to the Unions counsel concerning submission of contract proposals on
November 17, 2015. [See: Exhibit 9, Proposals submitted to Attorney Wiens with cover
letter and explanation (proposed contract document omitted).]6
There can be no disputing that both of the CBAs executed by the State Receiver were
entered into under the aegis of the authority granted to the State Receiver by and through the
FSA. The Supreme Court has ruled on the constitutionality of the FSA in at least two (2)
cases to date: Moreau v. Flanders, 15 A.3d 565 (R.I. 2011) and Shine v. Moreau, 119 A.3d 1

obligations). Furthermore, while the Board is generally operating under the terms of the
2016-2020 CBA for practical purposes, it has subsequently learned that the Receiver Pfeiffer
did not implement all of the terms and conditions of said CBA, even though it became
operative by its terms while the State Receivership was still open.
4
It is anticipated that the Board will present another six-month budget proposal to the voters
and in fact adjourned the last Special Meeting to March 17, 2016 specifically for that
purpose.
5
Preliminarily, and consistent with R.I.G.L. 28-9.1-17, CCFD proposed the deletion of any
and all provisions in any existing collective bargaining agreement with the Union, or any
collective bargaining agreement purporting to exist, it being the intention of CCFD to
discontinue any and all contractual provisions that may exist or purport to exist between it
and the Union.
6
Additionally, the Court should be aware that CCFD has submitted Arbitrator Selection
Form(s) to the AAA, without prejudice to its right(s) to raise the issue of non-arbitrability
(procedural and substantive) vis--vis the Unions failure to comply with R.I.G.L. 28-9.1-8,
and any other applicable statute as well as pending the outcome of the instant declaratory
judgment requests.
7

(R.I. 2015). Particularly in the Moreau case, the Court noted, Although the powers of the
receiver are broad and sweeping, they nonetheless are contained and channeled Moreau,
119 A.2d at 577. Furthermore, the Court noted that, The powers delegated to the receiver
are properly cabined because they are to be carried out with due regard for the needs of the
citizens of the state and of the city or town, ... as will best preserve the safety and welfare of
citizens of the state and their property, and the access of the state and its municipalities to
capital markets, all to the public benefit and good. Section 45-9-1. Id. The Court reasoned
that since the FSA only temporarily usurped the powers of the elected officials, the FSA was
constitutional.
Under the FSA, the State Receiver has the authority to enter into collective bargaining
agreements; however, No collective bargaining agreement shall be approved unless the
receiver provides written certification to the director of revenue that after an evaluation
of all pertinent financial information reasonably available, the fire districts financial
resources and revenues are, and will continue to be, adequate to support such collective
bargaining agreement without a detrimental impact on the provision of municipal or fire
district services. ... R.I.G.L. 45-9-9. More importantly in this case, since the negotiations
between the Union and the State Receiver took place during the pendency of the Chapter 9
bankruptcy case, those CBAs were subject to approval by the Bankruptcy Judge as part of
Receiver Pfeiffers 5-Year Plan.
When Director Sullivan terminated the State Receivership in his September 17, 2015
letter, he acknowledged that, without those [2% per year] tax increases, the Plan cannot be
successfully implemented. This is tantamount to an admission that CCFDs financial
resources are not (or will not) be adequate to support such collective bargaining agreement(s)

without a detrimental impact to the district. This was not the only acknowledgment of the
difficulties encountered by Receiver Pfeiffer in trying to restore CCFD to fiscal stability. For
example, Director Sullivan additionally noted:

[Receiver Pfeiffers] efforts have mostly resulted in the completion of a

Disclosure Statement and Plan of Debt Adjustment. ... [Exhibit 7, page 1,
emphasis added.]

[T]he Plan, if submitted to and approved by the Bankruptcy Court, could

successfully restructure CCFDs financial affairs and restore the District to
fiscal stability but for the fact that the Plan continues to be vigorously opposed
by the Board and the Town.7 [Exhibit 7, page 1, emphasis in original.]

[Y]ou negotiated with the union in good faith and reached an agreement
(which is subject to Bankruptcy Court approval) on a new [CBA]. [Exhibit
7, page 2, emphasis added.]

[S]trong opposition to the Plan exists. [Exhibit 7, page 2.]

[T]here is no authority under the [FSA] to impose [a] tax increase in years
two through five of the Plan. ... [Exhibit 7, page 2.]

I have concluded that the best course of action is to have the Chapter 9
petition dismissed so that CCFDs fiscal issues can be addressed and a
solution crafted by the Board and the taxpayers. ... [Exhibit 7, page 4.]

It is, or ought to be, abundantly clear that Director Sullivan intended to terminate
and did in fact terminate the State Receivership before the Plan could be confirmed and
before the CBAs could be approved. Given Director Sullivans statements, it is reasonable to
expect that the decision to terminate the State Receivership was due to the likelihood of not
being able to obtain Bankruptcy approval of the CBAs, or of the Plan in general. In any
event, the Bankruptcy Court did not approve either CBA and there is nothing in Director
Sullivans letter signaling compliance with R.I.G.L. 45-9-9, certifying that either CBA

The Bankruptcy Court ruled that the Board of Directors had no standing in the Chapter 9
Case; the Town of Coventry took its own position in opposition to the Plan.

would be able to be funded without detrimental impact on the district. If anything, the
opposite is true.
Despite all of this, the Board has started the negotiation (and interest arbitration)
process for a new CBA for the 2015-2016 and 2016-2017 years. Also, while the most recent
budget is for six-months, it does provide for the continued delivery of fire suppression and
EMS services, using the 2016-2020 CBA as a guide.
Accordingly, CCFD seeks a declaration that the Board need not comply with the
terms of either of the CBAs negotiated and executed between Receiver Pfeiffer and the
Union because both of them are void as an operation of law.
B. The taxpayers of CCFD are not required to fund, through the raising of taxes,
otherwise valid collective bargaining agreements entered into by the Board of
Directors.
CCFD seeks a declaration that the taxpayers are not required by state law to fund
collective bargaining agreements for fire suppression and EMS services and by extension,
that the Board of Directors are limited in their authority to execute multi-year collective
bargaining agreements.
1. Notwithstanding the unique facts and circumstances placed on CCFD from
the FSA experience, well-established law limits the powers of CCFD Board of
Directors to one-year contracts.
There is a well-established body of law pertaining to contracts with a governmental
authority. [A]ny contract made by a governmental authority involving the performance of a
governmental function that extends beyond the unexpired terms of the governmental officials
executing the contract is void because such an agreement improperly ties the hands of
subsequent officials. Rhode Island Student Loan Authority v. NELS, Inc., 550 A.2d 624,626
(R.I. 1988) (emphasis added); Vieira v. Jamestown Bridge Commission, 91 RI. 350, 163 A.2d

10

18 (1960); Parent v. Woonsocket Housing Authority, 87 R.I. 444, 143 A.2d 146 (1958); see
generally Casa DiMario, Inc. v. Richardson, 763 A.2d 607, 610 (R.I. 2000) (citing Parent and
noting that the town council did not have authority to bind future town councils by promising
not to enforce yet-to-be enacted ordinances.)
Section 3(b) of CCFDs Charter limits the Directors terms as well as the
electors power to appropriate funds to a period of one year:
Commencing in 2007 and continuing annually thereafter, the district
shall hold an annual meeting in a public place on the second
Monday in September, at 7:00 P.M. at such place within the District
as the Board shall determine, for the purposes of: (1) electing a
Board of Directors; (2) authorizing the assessment of all the taxable
personal and real property of the District; (3) authorizing the
collection of taxes, as further set forth in Section 6 hereunder; (4)
authorizing an annual budget to provide for the purchase and
maintenance of equipment, apparatus, real and personal property,
the payment of wages and salaries, and for such other expenditures
deemed necessary by the qualified voters of the District; and (5) For
such other lawful purposes deemed necessary and proper by either
the Board of Directors or qualified voters of the district.
Thus, there is an inherent limit to the power of the Board, within the Charter itself
that only allows contracts of one (1) year. The limitation works two ways: the Directors do
not have the authority to bind CCFD beyond one year; and, the taxpayers, in any event, have
no obligation (or, more to the point, authority) to fund any such multi-year contract beyond
one year.
a. The qualified voters of CCFD have never approved either of the CBAs
negotiated between the Union and the State Receiver, or the funding of
them.

Even if the Union could establish that their contract could be extended beyond
one year under the collective bargaining laws of our state, the Union would face another,
and even more insuperable obstacle: the failure of the appropriating authority that is, the

11

qualified voters of CCFD to approve either of the CBAs negotiated by and with the
State Receiver. Absent such an approval, either contract is essentially an executory contract
from one annual (or semi-annual) appropriation to another, by the qualified voters. Therefore
any contractual relationship is between the Union and CCFD must be and remains subject to
the appropriation and concurrent approval of the voters, and is renewable on an annual
basis if and only if the voters of CCFD continue to decide to fund it.
Nowhere is this more apparent than in CCFDs charter itself, which provides
unambiguously in Section 3 of the Charter that the District, shall hold an annual meeting
for the purpose of authorizing an annual budget to provide for the ... payment of wages
and salaries, and for such other expenditures deemed necessary by the qualified voters of the
District.
This Court is well aware of the history of CCFD when voters between 2012 2013
chose three times not to fund the then-existing CBA, and for that, they can be held
no more legally responsible than the authority from whom their appropriation power is
derived that is, the General Assembly.
C. The taxpayers of CCFD have the right to the determine whether, and if so,
the methods, means, processes and personnel by which, fire prevention, fire
suppression and/or EMS services are to be provided in CCFD.
CCFD seeks a declaration that the taxpayers have the sole and final determination of
how fire suppression and EMS services are provided to CCFD, including whether said
services are to be provided by employees, independent contractors (i.e. call-pay personnel),
vendors, or volunteers.
Just recently, our Supreme Court held that it is well-established that there are certain
managerial decisions, which lie at the core of entrepreneurial control over an organization.

12

Ford Motor Co. v. National Labor Relations Board, 441 U.S. 488, 498, 99 S.Ct. 1842, 60
L.Ed.2d 420 (1979) (quoting Fibreboard Paper Products Corp., 379 U.S. at 223 (Stewart, J.,
concurring)). With respect to these decisions, a union should [not] be able to dictate to the
[employer] because such matters [are] strictly within the province of management.
Barrington School Committee, 120 R.I. at 479, 388 A.2d at 1375. Accordingly, the choice
itself of whether or not to implement a particular management decision is not subject to
mandatory bargaining and need not be submitted to arbitration. See: Providence Hospital v.
National Labor Relations Board, 93 F.3d 1012, 1018 (1st Cir. 1996). This holds true
notwithstanding the fact that such a decision may have effects--sometimes profound effects-upon th[e] [terms and] conditions of employment. Id. Nevertheless, we reiterate that when,
as here, the problem involved concerns both a question of management and a term or
condition of employment, it is the duty of the [employer] to negotiate with the [individuals]
involved. Barrington School Committee, 120 R.I. at 479-80, 388 A.2d at 1375. That duty,
however, is limited to the obligation to negotiate over the effects of the decision that is within
the prerogative of management. Town of North Kingstown v. International Association of
Firefighters, Local 1651 AFL-CIO, 107 A.3d 304, 313-14 (R.I. 2015); see also Town of
North Providence v. Drezek, C.A. PC2009-5835 (Superior Court of R.I., June 29, 2010)
(Stern, J.) (the Town is correct that setting the size of its total workforce is an inherent right
of management); Local 2334 of International Association of Firefighters v. Town of North
Providence, C.A. PC2009-6883 (Superior Court of R.I., Dec. 31, 2009) (Lanphear, J.) (The
decision to close a fire station to make more profitable use of the station facility and thereby
achieve economic savings is fundamental to the basic direction of the enterprise. Disposing
of or repurposing the Fire Departments property is an executive-level decision at the core of

13

entrepreneurial control. It is a managerial decision about how to deploy the Fire

Departments resources in the most efficient manner that has minor, incidental effects on the
terms and conditions of firefighter employment. The Towns decision was based on
considerations relating to the essence of the firefighting mission, not on a desire to eliminate
firefighter jobs.). In accordance with the foregoing case law, CCFD has the inherent
managerial right to determine whether, and if so, the methods, means, processes and
personnel by which, fire prevention, fire suppression and/or EMS services are to be provided
in CCFD.
Moreover, in matters of taxation, the R.I. Constitution clearly and expressly gives the
General Assembly the exclusive power to tax:
[t]he general assembly shall, from time to time, provide for making
new valuations of property, for the assessment of taxes, in such
manner as it may deem best. R.I. Const. art. 6, sec. 12.
The Supreme Court has noted that:
We have interpreted this constitutional provision to mean that the
power to tax is vested exclusively in the Legislature. Ewing v. Tax
Assessors of Jamestown, 104 R.I. 630, 634, 247 A.2d 850, 853 (1968).
That is, the Legislature decides what will be taxed, and the property
may not be taxed unless the Legislature has passed a statute clearly
subjecting it to taxation. Newport Gas Light Co. v. Norberg, 114 R.I.
696, 699, 338 A.2d 536, 538 (1975). Inn Group Associates v. Booth,
593 A.2d 49, 52 (R.I. 1991).
The power to tax is vested primarily in the state, and may be lawfully
exercised by the subordinate political bodies of the state only in so far
as and in the manner in which said power is delegated to them by the
Legislature. In re Warwick Financial Council, 39 R.I. 1, 12-13, 97 A.
21, 25 (1916).
The General Assembly delegated the power to tax to the people of CCFD. The
General Assembly specified the way by which they could levy, assess and collect taxes from
themselves from within the jurisdictional boundaries of the district. The people not the

14

District itself always held the power to tax. The Charter of CCFD makes this clear:
Sec. 7. TAXING AUTHORITY - TAX ASSESSOR (a) Said qualified
voters at any of their legal meetings shall have the power to order such
taxes and provide for the assessing and collecting of the same on the
taxable inhabitants and property in said district as they shall deem
necessary for purchasing fire engines, and all other implements and
apparatus for the extinguishing of fire; for the purchase of land and
buildings for keeping same; for the purchasing, installation, operation
and maintenance of a suitable alarm system; for making cisterns and
reservoirs; for paying the salaries of district officers and employees
P.L. 2006 ch. 405 section 7.
Thus only the voters of CCFD can impose a tax upon themselves. Further, as fire
protection and EMS service are quintessentially governmental functions8, the General
Assemblys delegation of the taxing power to the people to have or have no fire
suppression and EMS services cannot give rise to or be circumvented by a civil action
against the people of the District for breach of contract or any other type of equitable relief
deriving from the peoples failure to appropriate funds. In CCFD, the legislature, exercising
the taxing and police power authority of our state, delegated those powers to the qualified
voters of the district. If they choose not to have fire taxes, and thus not to have a fire
department, or any other means of providing fire suppression and EMS services, then such
is their right. See generally Greenwood Volunteer Fire Co. v. Dearden, 64 R.I. 368, 37172 (1940) (it is a well-recognized principle of the law of municipal corporations that they

When a municipality enters into a lease for the use of property exclusively for fire protection
and rescue services, it is performing a governmental function. See: Buckhout v. City of
Newport, 68 RI. 280, 285, 27 A.2d 317, 320 (1942) ([t]here can be no question that a city is
acting in its governmental capacity when it purchases and uses land ... for fire protection
purposes); Flynn v. King, 433 A.2d 172, 175 (R.I. 1981) ([f]ire protection is a
governmental function that substantially affects every resident and property owner); Nunes
v. Town of Bristol, 102 R.I. 729, 734, 232 A.2d 775, 778 (1967) (a municipality when
engaged in the construction or expansion of a fire station, is performing in a governmental
capacity).
8

15

are not obligated to furnish fire protection to its citizens); see also Doherty v. Oakland
Beach Volunteer Fire Co., 70 R.I. 446, 450 (1944) (the correct rule is that a volunteer fire
association is not a branch or department of the town but an independent corporation
voluntarily assuming to perform certain functions which the town itself might have
performed). Any attempt to prosecute a civil action for remedies within the judicial branch
of government, against the people for failing to have either (taxes or a fire department),
is no more appropriate than an action against the General Assembly itself, for failure to
directly appropriate money to CCFD to have a fire department.9 Additionally, if the
qualified voters decide to fund other means of providing fire suppression and EMS services
than by having employees, they are free to do so as well. There is no can be legal mechanism
to force the qualified voters to raise taxes for services they do not want, nor can financial
liability attach should the taxpayers refuse to exercise their taxing authority in the first place.
To hold otherwise, one would need to turn the relationship between the judiciary, the
legislature and the people upside down: the judicial branch would supervise the continuity of
legislative appropriations through its adjudicative powers, deciding which appropriations must
be continued as a matter of law. The R.I. Constitution proscribes this, placing appropriating
power in the hands of the General Assembly implicitly, if not explicitly.10

As noted previously in Sullivan et. als. April 4, 2013 submission to this Court, it is only
when the General Assembly, as the authority delegating the power to appropriate,
specifically provides that a body politic must appropriate funding (notwithstanding the
appropriating authoritys failure or refusal to do so), that the result is any different. See e.g.
Exeter-W. Greenwich Regl Sch. Dist. v. Exeter-W. Greenwich Teachers Assn, 489 A.2d
1010, 1016 (R.I. 1985).
10
For example, under Article 6 section 11 of the Constitution provides:
Section 11. Vote required to pass local or private appropriations. -- The assent of twothirds of the members elected to each house of the general assembly shall be required to
every bill appropriating the public money or property for local or private purposes.
9

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1. All powers not textually committed under R.I.s Constitution are now reserved
to the people of R.I., whose failure to appropriate cannot give rise to civil
liability.
In 2004 pursuant to Article XIV section 1 the people of Rhode Island amended their
Constitution so as to eliminate Article VI section 10 in its entirety. This was significant,
since that provision had been the textual underpinning of more than 100 years of
jurisprudence declaring the General Assembly to be the repository of all sovereign power
not textually committed elsewhere:
Unlike the United States Congress, the Rhode Island General
Assembly does not look to our State Constitution for grants of
power. In re Advisory Opinion to the House of Representatives, 485
A.2d at 553; Payne & Butler, 31 R.I. at 316, 77 A. at 154.
Accordingly, this court has consistently adhered to the view that the
General Assembly possessed all of the powers inhering in
sovereignty other than those which the constitution textually
commits to the other branches of our state government and that
those that are not so committed . . . are powers reserved to the
general assembly. Nugent v. City of East Providence, 103 R.I. 518,
52526, 238 A.2d 758, 762 (1968). In re Advisory Opinion to the
Governor, 732 A.2d 55, 62-63 (R.I. 1999) (commonly referred to as
the Ethics Commission case).
The elimination of Article VI section 10, by the people in 2004 meant that Rhode
Island government was no longer that of a quintessential system of parliamentary
supremacy. Id. at 64. The power once possessed by the General Assembly, to the extent it
has not been delegated, textually, to the executive and judicial branches of our state
government, now resides in the people of Rhode Island. This notion is supported not only
by a plain reading of the Ethics Commission case, supra, but also by a plain reading of
the constitution itself. Article I section 24 provides unequivocally:
Section 24. Rights not enumerated -- State rights not dependent on
federal rights. -- The enumeration of the foregoing rights shall not be
construed to impair or deny others retained by the people. The rights
guaranteed by this Constitution are not dependent on those guaranteed

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by the Constitution of the United States.

This constitutional shift of power to the people of Rhode Island is important. In
every approval (or rejection) of a budget proposal, the people of CCFD have exercised the
power delegated to them by the General Assembly under the charter [P.L. 2006 ch. 405,
supra] on whether to appropriate and tax themselves, or not. The powers retained by the
people since 2004 before CCFDs Charter was created reinforces the notion that the
peoples refusal to appropriate money for a body politic (CCFD) created for their own
public safety is their right under CCFDs Charter. The same is true when the people
exercise their right to fund a particular expense through appropriations, including such
expense(s) associated with the delivery of fire suppression and EMS Services. Whether
deciding or refusing to appropriate, is an exercise of their Constitutional rights under
Article I section 24 that is, the rights retained by the people. As such, it is
constitutionally inappropriate for this Court, or any court to impose any civil liability upon
the people of CCFD for exercising either the right to tax, or not, as delegated by the
General Assembly, or their retained rights under Article 1 section 24, when they
refused to appropriate funds for CCFD.
CONCULSION
For the reasons set for above, the CCFD respectfully requests judgment enter on each
of the declarations sought.

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CENTRAL COVENTRY FIRE DISTRICT

BOARD OF DIRECTORS
By its Attorney and Solicitor,
/s/ David M. DAgostino, Esq.
David M. DAgostino, Esq. #6288
Nicholas Gorham, Esq. #4136
GORHAM & GORHAM, INC.
25 Danielson Pike
North Scituate, RI 02857
(401) 647-1400 Telephone
(401) 647-1446 Facsimile
daviddagostino@gorhamlaw.com

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CERTIFICATION
I hereby certify that on January 8, 2016:
I filed and served this document through the electronic filing system on the
following parties: All parties.
The document electronically filed and served is available for viewing and/or
downloading from the Rhode Island Judiciarys Electronic Filing System.
_ I served this document through the electronic filing system on the following
parties:
The document electronically served is available for viewing and/or
downloading from the Rhode Island Judiciarys Electronic Filing System.
_ I mailed or hand-delivered this document to the attorney for the opposing
party or the opposing party if self-represented whose name is
_____________________________________________ at the following
address
______________________________________________________________.
/s/ David M. DAgostino

Server/CCFD/Bouchard v. CCFD/Memo in Support for Request for Declaratory Relief [01-08-16]

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