The Appellant, Kelly Chuilli, having prevailed in this appeal, has petitioned for an award of reasonable attorney’s fees and costs pursuant to G.L. c. 31, § 2 (e) and § 45, as amended by c. 238, § 112 and § 138 of the Acts of 2024; a petition that the Respondent has opposed.
Applicable Civil Service Law
Prior to the enactment of Chapter 238 of the Acts of 2024, civil service law provided a limited remedy of reimbursement of attorney’s fees and expenses to certain “tenured
employees” who prevailed in a “Section 43” disciplinary appeal to the Commission:
A tenured employee who has incurred expenses in defending himself against an unwarranted discharge, removal, suspension, laying off, transfer, lowering of rank or compensation, or abolishment of his position and who has engaged an attorney for such defense shall be reimbursed for such expenses, but not to exceed two hundred dollars for attorney fees for each of the following: (1) a hearing by the appointing authority; (2) a hearing pursuant to section forty-two or forty-three; (3) a judicial appeal pursuant to section forty-four; and not to exceed one hundred dollars for each of the following: (1) summons of witnesses; (2) cost of stenographic transcript; (3) any other necessary expenses incurred in such defense.
G.L. c. 31, § 45, ¶1, as enacted by St. 1978, c. 93, ¶11(emphasis added).
Chapter 238 of the Acts of 2024 substantially revised and expanded the statutory process for reimbursement of expenses incurred by appellants who prevail in an appeal to the Commission. First, section 2 of Chapter 31 now provides:
In addition to its other powers and duties, the commission shall have the following powers and duties: . . . (e) to award reasonable attorneys' fees and costs up to $25,000 to an appellant who prevails in an appeal brought under this chapter, upon an express finding of either bad faith on the part of the appointing authority or an egregious or willfully repeated violation of this chapter, unless special circumstances would render such an award in full unjust.
G.L. c. 31, § 2(e), as amended by St.2024, c. 238, § 112 (emphasis added).
Second, section 45 of Chapter 31 now provides:
An aggrieved individual who has prevailed in any appeal brought under this chapter shall be reimbursed by the local appointing authority or, if aggrieved by action or inaction of a state official, by the comptroller of the commonwealth, the following expenditures: (i) the filing fee paid to the commission; (ii) an amount not to exceed $1,500 for attorneys' fees actually incurred in conjunction with each of the following: (A) an appointing authority hearing; (B) a hearing before the commission; and (C) an action for judicial review pursuant to section 44; and (iii) an amount not to exceed $500 for summons to witnesses and any other expenses actually incurred in such successful appeal. In addition to the amounts stated above, the commission may award such additional reasonable attorneys' fees and costs up to $25,000 to an appellant who prevails in an appeal brought under this chapter, upon an express finding of either bad faith on the part of the appointing authority or an egregious or willfully repeated violation of this chapter, unless special circumstances would render such additional award unjust.
G.L. c. 31, § 45, ¶1, as amended by St. 2024, c. 238, § 138 (emphasis added).
Thus, Chapter 238 of the Acts of 2024 made three key changes to the civil service law: (1) the mandate to reimburse attorney’s fees and expenses became applicable to every successful appellant; (2) the level of mandatory fees and expenses to be paid to a successful appellant increased; and (3) the Commission was authorized to order that a successful applicant be reimbursed up to an additional $25,000 in fees and costs upon a finding that an appointing authority or state official engaged in “bad faith” or “an egregious or willfully repeated violation” of civil service law.
Analysis
This is the first occasion on which the Commission is ruling on an appellant’s petition for an award of fees and costs since the 2024 amendments changed the statutes governing reimbursement of expenses incurred by an appellant who has prevailed in an appeal to this Commission. The Commission must address whether the changes to Section 2(e) and Section 45 of Chapter 31 apply to this appeal, which was pending at the time the law was changed, or apply only prospectively to new appeals filed after the enactment of the changes in the law.
The Commission concludes: (1) changes in the statutorily-mandated amounts of attorney’s fees and expenses prescribed in Section 45 took effect prior to the Commission’s Decision and appropriately may be applied to this appeal; but (2) the novel authority granted to the Commission to award attorney’s fees and costs upon a finding of “bad faith” or “egregiously or willful” violations should not be applied to this appeal when the record of the evidence upon which such a finding must be made had closed prior to the enactment of the law that authorized such newly created relief.
The question presented is one of statutory construction and legislative intent.
[I]t is the “[t]he general rule of interpretation . . . that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations. Doubtless all legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms.
Fontaine v. Ebtec Corp, 415 Mass. 309, 318 (1993), citing City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974). See also Smith v. Massachusetts Bay Trans. Auth., 462 Mass. 370, 372-78 (2012) and cases cited (presumption that legislature did not intend statute to have retroactive effect may be rebutted only by an “unequivocally clear” showing of contrary legislative intent).
The inclusion of an emergency preamble (as St.2024, c. 238 featured) demonstrates only that the Legislature intended the enactment to take effect without regard for the ninety-day waiting period otherwise provided by the Massachusetts Constitution; it does not furnish the requisite “unequivocal” intent to apply the statute retroactively. See, e.g., Commonwealth v. Bradley, 466 Mass. 551, 555 (2013) and cases cited. As explained in Smith v. Massachusetts Bay Trans. Auth., supra:
The MBTA argues that the purpose of the 2009 amendments . . . requires that the MBTA be treated as a public employer on a retrospective basis, . . . that the Legislature's motivation . . . was to relieve pressure on the MBTA's budget, and that the Legislature communicated the urgency of this goal when it designated the legislation an “emergency.” The MBTA points out that the achievement of the savings contemplated by the Tort Claims Act would be retarded if plaintiffs injured prior to November 1, 2009, were exempt from its strictures.
If adopted, the MBTA's argument would amount to a reversal of the general presumption against retroactivity. To some degree, the purposes of almost any statute might be better achieved if the statute were applied retroactively. Yet, “that ‘retroactive application of a new statute would vindicate its purpose more fully . . . is not sufficient to rebut the presumption against retroactivity.’” [citations] The Legislature's designation of St.2009, c. 25, as emergency legislation does not change this analysis.
Id., 462 Mass. at 377-78 (emphasis added).
Thus, when the Legislature intended that a statutory change to a civil remedy apply to both pending and future cases, it had stated that intention expressly. See., e.g., Leibovich v. Antonellis, 410 Mass. 568 (1991) (statutory right to sue for loss of filial consortium “shall be effective to all causes of action which accrued on or after September first, nineteen hundred and eighty-six and to all similar causes of action now pending in any court in the commonwealth”); Doe v. Watertown School Committee, 701 F. Supp 264 (D.Mass.1988) (award of attorney’s fees under Education of the Handicapped Act “shall apply with respect to actions or proceedings brought . . . after July 3, 1984, and actions or proceedings brought prior to July 4, 1984, under such section which are pending on July 4, 1984”); David v. Travisono, 621 F.2d 464 (1980) (legislative intent to apply Civil Rights Attorney’s Fees Awards Act to “all cases pending on the date of enactment as well as all future cases”).
In a case in which, as here, the Legislature had not “ unequivocally” expressed an intent to apply statutory amendments to civil remedies retrospectively, the Massachusetts appellate courts no longer rely solely on the traditional distinctions between “substantive” and “procedural or remedial” changes to determine whether a statutory change is properly applied to a pending matter. Rather, our jurisprudence has developed a “stage of the proceedings” analysis as the “more workable rule” to distinguish when it is “fair” to apply a statutory change to a pending case.
In the past, in order to determine whether a statute was to be given retroactive effect, it was necessary to determine whether it affected substantive rights or was merely remedial or procedural. [citations] However, in City Council of Waltham v. Vinciullo . . . we chose not to rely on the substantive-procedural distinction and instead attempted to formulate a more workable rule.
The rule we adopted has us look to the stage of the proceedings affected by the change and determine whether that stage has been completed on the effective date of the amendment. If the point in the proceedings to which the statutory change is applicable has already passed, the proceedings are not subject to that change. If, on the other hand, that point has not yet been reached, the new provisions apply. This rule gives the broadest application to legislatively mandated changes without subjecting each completed step in the litigation to the uncertainty of possible future legislative change.
Porter v. Clerk of Superior Court, 368 Mass. 116, 118-119 (1975) citing City Council of Waltham v. Vinciullo, 364 Mass. 624 (1974) (emphasis added); Cranberry Realty & Mort. Co., Inc. v. Ackerley Communications, Inc., 17 Mass. App. Ct. 255, 258-259 (1983). In Fontaine v. Ebtec, Corp., supra, the SJC elaborated:
[T]he distinction between legislation that concerns “substantive rights,” and legislation that concerns “procedures” and “remedies,” has proved to be difficult to draw. . . . As have other jurisdictions, we have recognized that legislation limiting or increasing the measure of liability, while arguably remedial in the broad sense of that word, generally is considered to impair the substantive rights of a party who will be adversely affected by the legislation. In the absence of a provision mandating retrospective application, we have not assumed that such legislation applies to claims arising prior to enactment.
415 Mass. at 318-321 (citations omitted).
Applying these rules of statutory construction to the changes made to Section 45 of Chapter 31 leads to the conclusion that the changes to the previously established requirement for reimbursement of attorney’s fees and expenses are applicable to this appeal because they are triggered by the Appellant’s having “prevailed” in this appeal, which occurred on February 6, 2025, approximately three months after the enactment (and effective date) of Chapter 238 of the Acts of 2024. Specifically, the Respondent is obligated to reimburse the Appellant for the sum of $1,500 in attorney’s fees actually incurred, plus $500 in expenses and the filing fee she paid to the Commission.
However, the Appellant’s claim to an additional amount of $25,000 in attorney’s fees and costs must be denied. The stage of the proceedings that governs the effective date for reimbursement of additional fees and costs was completed upon the close of the record of the evidentiary hearing, which preceded the enactment of Chapter 238 by more than three months. The hearing was conducted (and the post-hearing proposed decisions were prepared) prior to the legislation that enabled the Commission to award such additional reimbursement upon a finding of “bad faith on the part of the appointing authority or an egregious or willfully repeated violation of this chapter, unless special circumstances would render such additional award unjust.” The Commission’s Decision on February 6, 2025, did not make any such findings. It would be unfair to apply the Commission’s newly authorized power to make such findings retroactively after the record of the evidence has closed. The Commission will apply its newly authorized power to award additional attorney’s fees and costs only to pending cases in which the evidentiary hearing had not been completed as of the effective date of St.2024, c. 238, §§ 112 and 138 (viz., November 20, 2024), so that henceforth the parties will have the opportunity to make, and will be expected to make, an evidentiary record in support of, or in opposition to, any finding by the Commission of bad faith, egregious, or willfully repeated violation of the civil service statutes.
In sum, as by November of 2024 the stage of the proceedings in this appeal had passed for the parties to submit evidence enabling the Commission to make the predicate finding that would have triggered its authority to allow an award of enhanced attorney’s fees and costs pursuant to Section 45, the Appellant is entitled in this appeal only to the statutorily-mandated reimbursements provided by the amendments to Chapter 45 that were effective on the date of the Commission’s Decision on February 6, 2025.
Conclusion
For the reasons stated above, the Appellant’s Petition for Award of Attorney’s Fees and Costs is denied as to the claim to $25,000 in enhanced attorney’s fees and costs under Section 45 of Chapter 31 but allowed in the amount of $2,075 (which includes the statutorily-mandated reimbursement of the $75 Commission filing fee paid by the Appellant). The Respondent shall tender that sum to counsel for the Appellant forthwith.
CIVIL SERVICE COMMISSION
/s/ Paul M. Stein
Paul M. Stein
Commissioner
By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein, Commissioners) on April 16, 2026.
Either party may file a motion for reconsideration within ten days of receipt of this Commission order or decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)(l), the motion must identify a clerical or mechanical error in this order or decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case. A motion for reconsideration does not toll the statutorily prescribed thirty-day time limit for seeking judicial review of this Commission order or decision.
Under the provisions of G.L. c. 31, § 44, any party aggrieved by this Commission order or decision may initiate proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30) days after receipt of this order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate as a stay of this Commission order or decision. After initiating proceedings for judicial review in Superior Court, the plaintiff, or his / her attorney, is required to serve a copy of the summons and complaint upon the Boston office of the Attorney General of the Commonwealth, with a copy to the Civil Service Commission, in the time and in the manner prescribed by Mass. R. Civ. P. 4(d).
Notice to:
Allison A. MacLellan, Esq. (for Appellant)
Richard F. Massina, Esq. (for Respondent)
- Chapter 238 of the Acts of 2024 did not change the Commission’s discrete authority under annual appropriation laws to assess a fee against any appointing authority who has engaged in “inappropriate action”, to be paid into the Commonwealth’s General Fund. See, e.g., St.2025, c. 9, § 2, line item 1108-1011.
- The Appellant Kelly Chuilli’s Petition for Award of Attorney’s Fees and Costs (Exhibits 2 & 3) includes a record of well in excess of $500 for hearing transcripts, as well as 16.8 hours devoted to attendance at the Commission evidentiary hearing and 18.5 hours devoted to drafting a post-hearing proposed decision, which I find is reasonable. Although I make no finding as to the reasonableness of the hourly rate of $800 claimed by the Appellant’s counsel for her services, the reasonable charges incurred for the time referenced herein, alone, far exceed the “$1,500 for attorneys' fees actually incurred” now reimbursable per G.L. c. 31, § 45, ¶1.
