Bunte v. Mayor of Boston

• Decision Date: 07 February 1972
• Citation: 278 N.E.2d 709,361 Mass. 71
• Parties: Doris B. BUNTE v. MAYOR OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 709

278 N.E.2d 709

361 Mass. 71

Doris B. BUNTE v. MAYOR OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 28, 1971.

Decided Feb. 7, 1972.

The case was submitted on briefs.

Herbert P. Gleason, Corp. Counsel, Thomas H. Martin and Norman C. Ross, Asst. Corp. Counsels, for respondents.

Edward J. Barshak and David A. Barry, Boston, for petitioner.

Before TAURO, C.J., and CUTTER, QUIRICO, BRAUCHER and HENNESSEY, JJ.

HENNESSEY, Justice.

This is a petition for a writ of certiorari brought by Doris B. Bunte, a former member of the Boston Housing Authority, against the mayor of Boston and the Boston city council. Mrs. Bunte was, on July 13, 1971, removed from office as a member of the Boston Housing Authority (the authority) for misconduct in office in accordance with the procedure established for such removals by G.L. c. 121B, § 6. This statute provides that the mayor of a city may, with the approval of the city council, after a hearing, remove from office because of inefficiency, neglect of duty or misconduct in office, any member of a housing or redevelopment authority appointed by such city. All of the charges in this case were based on misconduct in office.

The mayor found misconduct in office by Mrs. Bunte on three of the five charges he had made against her. He ordered her removal from office, and a majority of the council approved his order. Mrs. Bunte contends in her petition that the mayor's findings of misconduct in office were not warranted by the evidence heard by him and the council. The case is before us on the petition, the respondents' return, the exhibits, and a complete transcript of the evidence in the hearing held before the mayor and council.

A judge of the Superior Court, after hearing, entered findings, rulings and an order for judgment. The judge found and ruled, in substance, that the major's findings of misconduct in office by Mrs. Bunte were not warranted, and the judge ordered that she be reinstated in office for the balance of her term for which she was appointed and which expires on January 8, 1975. The respondents appealed to this court from his order.

In 1968, the previously existing prohibition against appointment of tenants as members of a housing authority was repealed by St.1968, c. 271, entitled, 'An Act permitting tenants in housing projects to be, at the same time, members of the housing authorities operating such projects.'

Mrs. Bunte, who was a tenant, was originally appointed by the major to fill an unexpired term as a member in October, 1969. On February 11, 1970, the city council confirmed her appointment for a full five-year term to expire on January 8, 1975. On April 7, 1971, the mayor wrote to Mrs. Bunte informing her that he would hold a hearing on five charges against her which were there set out. Subsequently, an evidentiary hearing was held before the mayor and council. The hearing consumed thirteen days and generated a transcript of more than 3,000 pages, together with several hundred pages of exhibits. On June 18, 1971, the mayor issued findings of fact, rulings of law, and an order for the removal of Mrs. Bunte, all of which are part of his return before us.

Of the five charges made by the mayor against Mrs. Bunte, he found that two were not substantiated by the evidence. These two charges were that she received compensation for services in advance of rendering the services, and that she engaged in excessive out-of-city travel at the expense of the authority. The mayor found that three of the charges were substantiated by the evidence, and that they constituted misconduct in office. These three charges are more particularly described elsewhere in this opinion.

1. Mrs. Bunte's argument against the mayor's findings of misconduct in office is based upon a provision in G.L. c. 249, § 4, which allows the petitioner to contend that 'the evidence which formed the basis of the action complained of . . . was as matter of law insufficient.' The evidence must be held to be insufficient as a matter of law unless there was 'substantial evidence' to support the findings. 'Substantial evidence' has been defined as 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' G.L. c. 30A, § 1. Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92, 242 N.E.2d 868, and cases cited. We must not substitute our judgment for that of the mayor.

2. Mrs. Bunte argues that 'misconduct in office' necessarily implies intentional wrongdoing. The mayor ruled to the contrary, stating that misconduct in office can be present without intentional wrongdoing. The judge ruled that Mrs. Bunte was correct in her argument. No prior decision of this court has established whether misconduct in office as used in G.L. c. 121B, § 6, can be found, as urged by Mrs. Bunte, only in the presence of the elements of intentional wrongdoing. Also, an examination of the decisions from other jurisdictions upon which Mrs. Bunte relies does not support her argument. See, e.g., Law v. Smith, 34 Utah 394, 98 P. 300; Kesling v. Moore, 102 W.Va. 251, 135 S.E. 246; Layne v. Hayes, 141 W.Va. 289, 90 S.E.2d 270.

We conclude that it was the intent of the Legislature that misconduct in office can be found to exist even in the absence sence of evil motives, moral turpitude, corrupt or criminal conduct, or intentional wrongdoing. Consequently, we rule that the judge was incorrect in the definition which he applied, and that the mayor invoked a proper standard by which to judge the petitioner's conduct. In Opinion of the Justices, 308 Mass. 619, 33 N.E.2d 275, we were called upon to construe the meaning of the phrase 'misconduct and mal-administration in their offices' as used in the Constitution of the Commonwealth with reference to the impeachment of officers of the Commonwealth. We said 'the word 'misconduct' as used therein include(s) acts or omissions of a councillor while holding the office of councillor that can be said reasonably to render him unfit to continue to hold the office.' 308 Mass. at 629, 33 N.E.2d at 280. It is significant that we made no mention of intentional wrongdoing, corrpution, evil intent or similar words in thus defining the misconduct of such an officer. Although Mrs. Bunte is not an officer of the Commonwealth, she, as a member of the auithority, is a public officer. Belinfante v. Mayor of Revere, 352 Mass. 712, 718, 227 N.E.2d 502.

The majority rule in other jurisdictions is that no wrongful intent need be shown. People v. Harby, 51 Cal.App.2d 759, 125 P.2d 874; Yoe v. Hoffman, 61 Kan. 265, 59 P. 351; State v. Leach, 60 Maine, 58; Matter of Sausbier v. Wheeler, 276 N.Y. 246, 11 N.E.2d 897; Law v. Smith, 34 Utah 394, 98 P. 300; Warren v. Commonwealth, 136 Va. 573, 118 S.E. 125; Kesling v. Moore, 102 W.Va. 251, 135 S.E. 246. 'When an official act or omission has occurred the officer may be removed therefor without reference to the question whether it was done maliciously or corruptly.' Matter of Moran, 145 App.Div. (N.Y.) 642, 644, 130 N.Y.S. 432, 434. "Misconduct' does not necessarily imply corruption or criminal intention. We think the legislature used the word in its more extended and liberal sense. This statute is not, strictly speaking, a penal statute, but rather remedial and protective.' State v. Leach, 60 Maine, 58, 72.

We are in accord with the majority view, in that we believe that it would be a disservice to the public interest for us to hold that misconduct can be proved only in terms of intentional wrongdoing, for that would place upon the mayor in this or any similar case a burden in some respects equivalent to that of the prosecutor in a criminal prosecution. Public employees are, and must continue to be, held to a higher standard of stewardship than merely that of refraining from criminal actions while in office. The saying, 'Public office is a public trust,' is more than mere rhetoric. Boston v. Dolan, 298 Mass. 346, 354, 10 N.E.2d 275, 281.

In the operation of the statute before us, which predicates removal upon the proof of misconduct in office, it is sufficient to prove that the public officer has become unfit for office by reason of his intentional violation of a known and significant rule or duty inherent in the boligations of his office. ¹

By the terms of the statute before us, the proved misconduct must be 'in office.' We conclude that the misconduct specified against Mrs. Bunte was in office, if it was misconduct at all, since it related to her status as a tenant in the very premises owned and operated by the authority, in which she held office.

In our conclusion that the rule or duty violated must be a known rule, we are not thereby establishing that it must be shown that the office holder had actual knowledge. It is enough to show that the duty or rule was sufficiently well established so that it ought to have been known to the officer.

Necessarily, the misconduct sufficient for removal from office must be significant, rather than unsubstantial or trivial. The rules or duties volated must be of importance in the administration of the public office. Otherwise stated, the rule or duty must be important enough so that its breach renders the officer unfit to continue to hold office. Presumably this was the issue under consideration by the judge, when he included in his findings and rulings the statement that 'the conduct complained of did not render her unfit to hold office.' We do not reach this issue in this case since we have decided, below, that there was no evidence sufficient to warrant a finding of a violation by Mrs. Bunte of a known rule or duty, substantial or otherwise.

3. The remaining issue to be determined is whether the mayor's findings are based upone vidence sufficient as matter of law, or 'substantial evidence.' Of the five charges against Mrs. Bunte, the mayor found misconduct in office by her as to three of the charges, vis. (1) that Mrs. Bunte received income...