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Supreme Court
No. 2005-14-Appeal.
(PC 03-1122)
Douglas Stewart                                                                            :
v.                                                                                         :
Sue P. Sheppard, in her capacity as Town                                                   :
Administrator of the Town of Lincoln,
Rhode Island.
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Goldberg, for the Court.  This case came before the Court on October 5,
2005, pursuant to an order directing the parties to appear and show cause why the issues
raised in this appeal should not summarily be decided.   After hearing the arguments of
counsel and reviewing the memoranda of the parties, we are satisfied that cause has not
been shown.   Therefore, we proceed to decide the case without further briefing and
argument.
Introduction
The plaintiff, Douglas Stewart (plaintiff or Stewart), is before the Court on appeal
from the grant of partial summary judgment in favor of the defendant, Sue P. Sheppard,
town administrator for the Town of Lincoln (defendant or Sheppard).   This case presents
two questions for our consideration; first, whether the position of director of finance
(finance director) in the Town of Lincoln is coterminous with the term of office of the
town administrator?   Second, if not, what are the prescribed procedures that must be
followed to remove the finance director in accordance with the Lincoln Town Charter
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(charter)?   The facts are largely undisputed.   In January 2003, the newly elected town
administrator fired both the chief of police and the finance director, without specifying
any cause.  These firings precipitated two separate lawsuits alleging wrongful termination
of employment.
The first lawsuit, Kells v. Town of Lincoln, 874 A.2d 204 (R.I. 2005), brought by
the chief of police, Robert T. Kells (Kells) and decided by this Court on June 3, 2005,
affirmed the grant of summary judgment in favor of the chief of police that permanently
enjoined Sheppard from removing Kells from office absent cause and compliance with
the removal provisions of the charter.1   In concluding that Sheppard had no authority to
unilaterally fire the chief of police, this Court navigated through several provisions of the
charter.   This appeal concerns the firing of the finance director.   Although this case and
Kells arise from similar facts and concern the removal of a municipal employee without
cause, this case raises new arguments.
Statement of the Facts and Travel of the Case
On July 31, 2001, Stewart was hired by the former Lincoln Town Administrator,
Jonathan F. Oster (Oster), as the town’s finance director.   At the general election in
1 In Kells v. Town of Lincoln, 874 A.2d 204 (R.I. 2005), the plaintiff, chief of police,
sought both injunctive and declaratory relief in an attempt to prevent his ouster from
municipal employment.   The plaintiff argued that because he was an officer, appointed
for an indefinite term, he could be removed only in accordance with the strict mandates
of Article XIV, section 14-10 of the Lincoln Town Charter. The hearing justice agreed
with the plaintiff and permanently restrained and enjoined the defendants from removing
Kells  from  office  unless  he  was  fired  for  cause  in  accordance  with  appropriate
procedures. The defendants appealed, and this Court determined that, although no longer
considered an officer of the town for purposes of section 14-10, the plaintiff was entitled
to the procedural safeguards set forth in Article VI, section 6-6(1) and section 14-11.
Similar to section  14-10, these provisions specify removal for cause and establish a
procedure for firing appointive officers or employees.   Because the police chief’s firing
was not procedurally sound, this Court affirmed the hearing justice’s ruling.
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November 2002, the voters of the Town of Lincoln elected defendant, the former town
clerk, to the position of town administrator.   Besides electing Sheppard and members of
the town council, the voters approved several amendments to the charter.   Certain of
those amendments affect the outcome in this case.   The defendant was sworn in as town
administrator on January 7, 2003, and the changing of the guard in town hall was swift
and far-reaching.   On January 8, 2003, her first day in office, defendant fired the chief of
police, Robert T. Kells, without specifying any cause.   See Kells,  874 A.2d at  208.
Shortly thereafter, on January 24, 2003, plaintiff was relieved of his duties as finance
director.
The plaintiff’s firing was not as abrupt as that of the chief of police - defendant
initially met with plaintiff and informed him that she intended to advertise the position of
finance director and accept applications.   At this meeting plaintiff was not relieved of his
duties, and the record discloses that he remained in office on the payroll.   The plaintiff
submitted an application and continued to serve as finance director for a period of weeks,
without interruption or interference.
On January 24, 2003, defendant again met with plaintiff and notified him that he
was fired, that the discharge was effective immediately, and that his replacement already
had been selected.   At no point was plaintiff afforded the opportunity to submit his
resignation, nor did defendant disclose why he was removed from office.
On March  6,  2003, plaintiff filed a verified complaint seeking injunctive and
equitable  relief.    Specifically,  plaintiff  requested  that  defendant  be  enjoined  and
restrained from preventing him from performing his duties and that he be reinstated to
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this position forthwith.   The complaint also included a prayer for compensatory and
punitive damages for the alleged wrongful firing.
The defendant filed an answer and counterclaim, seeking a declaratory judgment
that plaintiff was not legally entitled to serve as finance director because he was not a
qualified elector of the town.
At  the  preliminary  injunction  hearing,  both  parties  stipulated  to  an  agreed
statement of facts and submitted memoranda to support their respective positions.   On
February 2, 2004, the hearing justice denied injunctive relief, finding that plaintiff failed
to demonstrate that he would suffer irreparable harm if not immediately returned to
office.   However, plaintiff’s claims for compensatory and punitive damages remained
pending.
The defendant moved for summary judgment on the remaining issues.  To support
her motion, defendant relied on Article VII of the charter, entitled “DEPARTMENT OF
FINANCE.”   The defendant argued that because section 7-12 provides that there shall be
2 Because several Lincoln Town Charter provisions will be discussed throughout this
opinion, we provide them here for reference purposes.
Article VI, section 6-6(1), of the Lincoln Town Charter provides:
The town administrator shall:                                                                   “[A]ppoint and, when necessary for the
good of the services, remove all officers and employees of the town except
as otherwise provided by this Charter, and except as he may authorize the
head of a department or office to appoint and remove subordinates in such
department or office[.]”
Article VII, section 7-1 provides:
“There shall be a department of finance, the head of which shall be
the director of finance, who shall be the town administrator or a person
appointed by him.   Further organization of this department shall be as
stated in this Charter and by ordinances enacted by the town council, to
the end that the essential processes in the finances of the town, namely,
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a director of finance, “who shall be the town administrator or a person appointed by
him[,]”  the  office  immediately  was  vacated  upon  the  election  of  a  new  town
control and accounts, purchasing, assessment of property, collection of
taxes and other revenues and payments may be properly administered.”
Article XIV, section 14-10 provides:
“Officers of the town appointed for an indefinite term may be
removed by the office or agency which appointed them.    If any such
officer appointed for an indefinite term refuses to resign when asked for
his resignation by the proper authority, the town administrator if his office
made the original appointment or nomination, or any member of the town
council if the town council made the original appointment, may prefer
charges  against  said  officer  before  the  town  council,  requesting  his
removal.  The council after giving written notice of said request and of the
time and place of the hearing delivered to said officer or mailed by
certified mail to said officer at his last known address, together with a
copy of said charges at least ten (10) days prior to the date of the hearing,
may after hearing on said charges remove said officer by affirmative vote
of a majority of the entire town council.   Said hearing shall be public if
said officer so requests by a written demand filed with the town council
two (2) days prior to the date of the hearing.”
Article XIV, section 14-11 provides in pertinent part:
“The jurisdiction of the town council shall extend to all cases of
appeals from dismissals, suspensions, demotions or transfer[s] or lay-offs
of appointive officers and employees of the town, whether in the classified
service or not, except those in the school department working in an
administrative,  supervisory  or  teaching  capacity,  and  except  those
provided for otherwise in this Charter in section 14-10. * * * In the event
that  any  person  is  dismissed,  suspended,  demoted  or  transferred  as
provided herein, he may appeal in writing to the town council within ten
(10) days from such dismissal, suspension, demotion, transfer or lay-off.
Unless such appeal has been withdrawn, the council within ten (10) days
from  the  filing  of  such  appeal,  shall  give  the  dismissed,  suspended,
demoted or transferred person, or person laid-off and the department head,
board or other agency involved, the opportunity to be heard at a hearing
before said council.    After such hearing, which shall be public at the
option of the person making the appeal, the action of the council shall be
final and binding, and shall not be subject to appeal or further revision
except as may be otherwise specifically provided by law.   The review
afforded herein shall be deemed to be alternative to and/or in addition to
that granted by general and special state laws to certain classes of town
employees.”
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administrator.   According to defendant, she succeeded to the position of finance director
when she took office on January 7, 2003, and therefore plaintiff’s firing on January 24,
2003, could not have been wrongful because the position had been vacated by operation
of law.
The plaintiff also sought summary judgment, arguing that defendant failed to
comply with the dismissal provisions of the charter as set forth in Article XIV, section
14-10.   Specifically, plaintiff argued that he was an officer “appointed for an indefinite
term” and that he could be removed only by voluntarily submitting his resignation if
requested, or, if defendant preferred charges against him to the town council, requesting
his removal from office.   Because he was denied these procedural protections, plaintiff
argued that his termination was wrongful.
These cross-motions for partial summary judgment came before a magistrate
judge on July 20, 2004.   In arguing against defendant’s motion for summary judgment,
plaintiff contended that Article XVII, section 17-3(3) had been amended by the voters at
the November 2002 election and, as a result, the finance director held one of only two
appointed positions that were classified as officers of the town.   The plaintiff alleged that
as an officer of the town, he was entitled to the protections afforded by section 14-10,
which mandated that he could be removed only for cause.    The plaintiff essentially
asserted the same arguments in support of his motion for summary judgment that had
been argued in opposition to defendant’s motion.
The  hearing  justice  rejected  plaintiff’s  contentions  and  granted  summary
judgment in favor of the defendant, finding that plaintiff no longer was the finance
director - because as of January 7, 2003, the day Sheppard assumed office, the office was
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vacant.   The hearing justice reasoned that the charter “explicitly states that the Lincoln
Finance Director shall be the Town Administrator or a person appointed by him[.]”
Accordingly, the hearing justice found that, upon being sworn in as the new town
administrator, defendant assumed the position of finance director by operation of law.
The  hearing  justice  granted  summary  judgment  in  favor  of  defendant  and  denied
plaintiff’s motion.3  The plaintiff timely appealed.
Standard of Review
We consistently have declared that “[s]ummary judgment is an extreme remedy
and should be granted only when ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.’”   Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005).                                 “In passing on a grant of
summary judgment by a justice of the Superior Court, this Court conducts a de novo
review.”  United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I. 2003).  In
this case, both parties moved for summary judgment on plaintiff’s entitlement to remain
as finance director and jointly filed an agreed statement of facts.   Consequently, with
respect to this issue, the parties have conceded that there are no genuine issues of material
3 On appeal, defendant argues that plaintiff is precluded from arguing anything that was
offered to support his motion for summary judgment because that motion was denied by
the hearing justice and is not properly before the Court.   We reject this contention.   The
record discloses that both parties sought summary judgment and the legal arguments
made by plaintiff in favor of summary judgment involved the same legal issues as were
addressed in this argument.
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fact and this Court’s de novo review will focus on whether defendant was entitled to
judgment as a matter of law.4
Analysis
On appeal, plaintiff takes exception to the hearing justice’s finding that the
position  of  finance  director  is  coterminous  with  that  of  the  town  administrator.
Specifically, Stewart argues that the hearing justice misapplied Article VII, section 7-1 of
the charter to the facts of this case.   In addressing these contentions, we do not write on a
clean slate.
“[W]hen construing a municipal charter, the usual rules of statutory construction
apply.”   Providence Teachers Union Local No. 958 v. Napolitano, 554 A.2d 641, 643
(R.I. 1989) (citing Coventry School Committee v. Richtarik, 122 R.I. 707, 713, 411 A.2d
912, 915 (1980)).                                                                                    “It is the accepted rule that the provisions of city charters should be
construed so as to give, so far as possible, reasonable meaning and effect to all parts of
the section in question.”   Carter v. City of Pawtucket, 115 R.I. 134, 138, 341 A.2d 53, 56
(1975).   However, “when the language of the statute is clear and unambiguous, the court
must  interpret  it  literally,  giving  the  words  of  the  statute  their  plain  and  ordinary
meanings.”                                                                                           Labor Ready Northeast, Inc. v. McConaghy, 849 A.2d 340, 345 (R.I. 2004).
Section 7-1 of the charter provides in relevant part that:
“There shall be a department of finance, the head of
which shall be the director of finance, who shall be the
town administrator or a person appointed by him.”
4 There was a third motion for summary judgment argued before the hearing justice
concerning   defendant’s   counterclaim  to  recover   damages   earned   by   plaintiff
from July 31,  2001, to December  31,  2002, on the ground that plaintiff was not a
qualified elector of the town and therefore served in violation of the charter’s residency
requirement.   The motion for summary judgment was denied and this issue is not before
the Court.
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We note that this section, entitled “Organization,” does not specifically address
the issue of removal and contains very general guidelines about creating and structuring
the department of finance, including the position of director.   Nothing in Article VII
provides for removing the finance director or any other employee, nor are we satisfied
that simply because section 7-1 permits the town administrator to serve as the finance
director, the position is coterminous with that of the town administrator.   We reach this
conclusion by a careful examination of the charter as amended, and in light of our
holding in Kells.
The authority of the town administrator to fire an employee is expressly limited
by Article VI, section 6-6(1) of the charter, which provides that the administrator shall,
“when necessary for the good of the services, remove all officers and employees of the
town except as otherwise provided.”     In accordance with our established precedent, the
phrase  “for the good of the services” is an implicit limitation on the administrator’s
power to dismiss and requires a showing of cause.  Kells, 874 A.2d at 212 (citing Aniello
v. Marcello, 91 R.I. 198, 207, 162 A.2d 270, 274 (1960)).5   As we noted in Kells, this
language entitles the employee “to a specification of charges, due notice of a hearing, and
an opportunity to be heard and offer evidence in defense or explanation.”   Id. (quoting
Davis v. Cousineau, 97 R.I. 85, 90, 196 A.2d 153, 156 (1963)).
Accordingly, we are satisfied that section 7-1 of the charter is not a removal
provision and that defendant’s argument that the finance director’s tenure is coterminous
5 We need not address the nature of the finance director as a political appointee or as a
policymaker in the town administration, who arguably would be terminated without
cause, because this issue was not preserved for appeal.   See Montaquila v. St. Cyr, 433
A.2d 206 (R.I. 1981).
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with the town administrator is without merit.    Section  7-1 simply provides that the
administrator  may  decide  to  serve  as  the  finance  director  as  well  as  the  town
administrator, but is not required to do so.   In this instance, Sheppard did not elect to do
so.   The fact that Sheppard may wear two hats does not mean that she may unilaterally
clean out the closet.
Because the drafters have included an article pertaining to personnel matters,
specifically addressing the removal of both town officers and employees, we are not
satisfied that it was the drafters’ intention to have section 7-1 govern the removal of the
finance director when there exists explicit statutory guidance to the contrary.   Such a
conclusion is unreasonable and not supported by the record.
Again, as we held in Kells, 874 A.2d at 213, Article XIV sets forth the removal
procedures for officers and employees of the town and the level of protection afforded an
individual varies, depending on whether he or she is considered an “officer.”  Whether an
employee is an officer of the town as set forth in Article XVII, section 17-3(3), was
radically altered by the voters at the 2002 election, and only two appointed officials now
fall  within  that  category                                                                    -  the  town  clerk  and  the  finance  director.    Before  the
amendment, section 17-3(3) provided:
“The term of office of all officers, members of boards,
commissions and committees of the town appointed with
the approval of or appointed or elected by the town council
shall be concurrent with the term of the town council unless
otherwise provided in this Charter.”
This language was repealed in its entirety, and section  17-3(3) as amended,
provides:
“The term ‘officer or officers’ as used in this Charter shall
refer only to the town administrator, members of the town
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council, the town clerk and the finance director.    This
section shall control the use of the term ‘officer(s)’ as to
any  other  usage  in  this  Charter  that  is  inconsistent
herewith.”
The clear import of this amendment was to delete the coterminous language
governing appointed positions and specifically limit those officials who are officers “as to
any other usage” in the charter, including section 14-10.   In Kells, the town argued (1)
that because the chief of police did not fall within section 17-3(3) as amended, he was no
longer an officer of the town and (2) that the term “officer” related “only to the town
administrator, members of the town council, the town clerk, and the finance director.”
Kells, 874 A.2d at 213.   This Court agreed with the town’s contentions and held that the
phrase “officers appointed for an indefinite term” as set forth in section 14-10 excluded
all employees with the exception of those employees who fall “within the short list of
positions enumerated in section 17-3(3).”   Kells, 874 A.2d at 213. Thus, in light of the
amendment to section 17-3(3) and our holding in Kells, we are satisfied that the finance
director is an officer of the town entitled to the protections of section 14-10 of the charter.
However, defendant seeks to distance herself from the contentions she raised in
Kells.   Although not challenging plaintiff’s status as an “officer of the town,” defendant
nonetheless argues that the finance director is not appointed “for an indefinite term” and
therefore falls outside the purview of section 14-10.   The defendant points to charter
provisions establishing the positions of town clerk, chief of police, public health director,
and public welfare director, which specifically provide that these officers serve for an
indefinite term, in contrast to the position of finance director.   But, as we noted in Kells,
after the 2002 amendment to section 17-3(3), except for the town clerk, none of these
positions is on the short list of officers entitled to the protections of section 14-10 because
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they no longer are officers.   We concluded that, although Kells served for an indefinite
term, he no longer was considered an officer “as to any other usage in [the] Charter that is
inconsistent herewith.”  Section 17-3(3); see Kells, 874 A.2d at 213.
In light of our previous holding in Kells, there is a finite group of town officials
who qualify as officers of the town: members of the town council, the town administrator,
the town clerk, and the finance director.   Kells, 874 A.2d at 213; section 17-3(3).   Out of
this group, only the town clerk is explicitly appointed for an indefinite term.6  Were we to
accept defendant’s interpretation, the town clerk would be the only “officer” to whom
section 14-10 would apply.  Such an awkward result defies reason.  If the drafters wanted
section 14-10 to apply to only the town clerk, this feat could have been accomplished in
one sentence, rather than by an interpretive game of connect the dots.                           “Instead, this
Court looks to mechanisms within the [c]harter that clearly create and protect the rights”
of town employees.  Kells, 874 A.2d at 212.
By specific charter amendment, the position of finance director was classified as
an officer and that amendment controls the use of the term  “officer” throughout the
charter, including section 14-10.   As previously noted, the 2002 amendment replaced the
charter’s  coterminous  provisions  and  in  its  stead  listed  those  positions  that  would
thereafter be considered “officers” in the town.   One of the effects of this amendment,
whether intended or otherwise, was to delineate the specific town employees entitled to
the removal protections of section 14-10.  Kells, 874 A.2d at 212.  The finance director is
such an employee.
6 Members of the town council and the town administrator serve two-year terms.   See
section 5-1 and section 6-1 of the charter.
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Therefore, because the defendant neither asked for the plaintiff’s resignation nor
preferred charges against him before the town council, we conclude that the plaintiff was
not fired in accordance with section 14-10 of the charter and that his purported firing was
invalid.
Conclusion
For the aforementioned reasons, the judgment appealed from is vacated.   The
papers of this case are remanded to the Superior Court for further proceedings consistent
with  this  opinion,  including  the  plaintiff’s  right  to  renew his  motion  for  summary
judgment.
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Supreme Court
No. 2005-14-Appeal.
(PC 03-1122)
Douglas Stewart                                               :
v.                                                            :
Sue P. Sheppard, in her capacity as Town                      :
Administrator of the Town of Lincoln,
Rhode Island.
NOTICE:   This opinion is subject to formal revision before
publication in the Rhode Island Reporter.    Readers are
requested to notify the Opinion Analyst, Supreme Court of
Rhode Island, 250 Benefit Street, Providence, Rhode Island
02903,  at  Telephone  222-3258  of  any  typographical  or
other formal errors in order that corrections may be made
before the opinion is published.
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COVER SHEET
TITLE OF CASE:   Douglas Stewart v. Sue P. Sheppard, in her capacity as Town
Administrator of the Town of Lincoln, Rhode Island
DOCKET SHEET NO. :                                                             2005-14-A
COURT:                                                                         Supreme
DATE OPINION FILED:   November 15, 2005
Appeal from
SOURCE OF APPEAL:    Superior                                                  County:  Providence
JUDGE FROM OTHER COURT:      Magistrate Joseph A. Keough
JUSTICES:                                                                      Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:      Justice Maureen McKenna Goldberg, for the Court
ATTORNEYS:
For Plaintiff :                                                                Monica Horan. Esq.
ATTORNEYS:
For Defendant:                                                                 George M. Prescott, Esq.
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