Two retired Boston chief officers will not receive additional compensation for unused comp time after the Massachusetts Appeals Court ruled that the City of Boston had no contractual or statutory obligation to cash out the accumulated leave upon their retirement.

Gerard Fontana, who served as Chief of Field Services, and John Walsh, who served as Chief of Support Services, retired from the Boston Fire Department in 2020. Upon retirement, the City paid Walsh $170,486.26 and Fontana $239,162.99, primarily for accrued vacation, sick, and personal leave.

The chiefs later claimed they were entitled to additional payments for unused compensatory time. Walsh asserted that he was owed $55,328.70, while Fontana claimed an additional $70,083.02. In 2023, a Superior Court judge agreed, awarding damages that included doubled damages, interest, and attorney fees.

The dispute centered on a two-page document titled “Essential Duties and Compensation Schedule,” which governed the chiefs’ compensation. The document contained an “Annual Vacation Redemption” provision that allowed eligible chiefs with at least one year of service to redeem up to ten unused vacation days each year.

Under the program, unused vacation time could be converted into a cash payment. The same vacation time was also converted into a corresponding amount of compensatory time. The compensatory time could then be carried over to the next year with written approval from the Fire Commissioner.

The Appeals Court described the process as a form of “municipal alchemy,” under which eligible chiefs could convert ten unused vacation days into both cash and ten days of compensatory time.

At retirement, the plaintiffs obtained retroactive approval from the Fire Commissioner allowing them to carry over accumulated compensatory time. They argued that the unused compensatory time should then be converted into cash.

The Appeals Court rejected that argument. According to the court, the compensation schedule expressly provided for converting unused vacation time into both cash and compensatory time, but it contained no provision authorizing a second conversion of unused compensatory time into cash. The court found that the document was not ambiguous; rather, it was silent on the issue.

Quoting rather famous Massachusetts case, Marcelle, Inc. v. Sol & S. Marcus Co., 274 Mass. 469, 175 N.E. 83 (MA, 1931), the court explained: “Silence alone is not ambiguity. ‘There is no room for the construction of doubtful words, for there are no words whatever.’”

The court concluded that because the parties had never agreed to a second conversion of compensatory time into cash, it was not the role of the courts to add such a requirement.

The plaintiffs also argued that the City’s refusal to pay for the unused compensatory time violated the Massachusetts Wage Act. The Appeals Court rejected that claim as well. The court noted that the Wage Act requires payment of earned wages, vacation pay, and certain commissions, but does not mention compensatory time. The court further concluded that the compensatory time at issue was not “wages earned” because it was not compensation for labor or services performed. Instead, it resulted from the chiefs’ election to redeem unused vacation time under the compensation formula.

The court distinguished an earlier case involving police officers who received compensatory time in lieu of overtime pay. In that case, compensatory time was directly tied to overtime work performed. Here, the compensation schedule prohibited overtime and provided compensatory time only through the vacation redemption formula.

For those who have not been through our FLSA for Fire Departments training – something that is not fully explained in the decision is the distinction between FLSA comp time, and other forms of comp time. All forms of comp time are NOT the same. Accrued FLSA comp does indeed have to be paid out upon retirement or severance. Had this been FLSA comp time the chiefs would have won. The comp time in question here does not qualify as FLSA comp time. Our next FLSA for Fire Department’s program is October 13-15, 2026 in Kansas City, Kansas. We discuss this issue thoroughly.

Here is a copy of the decision.