Commissioner of Administration v. Kelley

• Decision Date: 04 April 1966
• Citation: 215 N.E.2d 653,350 Mass. 501
• Parties: COMMISSIONER OF ADMINISTRATION v. Leonard A. KELLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 653

215 N.E.2d 653

350 Mass. 501

COMMISSIONER OF ADMINISTRATION v. Leonard A. KELLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 10, 1966.

Decided April 4, 1966.

William C. Madden, Boston, for defendant.

Henry M. Leen, Sp. Asst. Atty. Gen., for plaintiff.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

The individual, who, on March 10, 1964, was Commissioner of Administration for the Commonwealth, brought this bill for a decree under G.L. c. 213A declaring whether he had a right to appoint someone other than the defendant to the office of Director of Personnel and Standardization. On January 7, 1965, John J. McCarthy succeeded the original plaintiff as Commissioner of Administration and moved that his name be substituted as the plaintiff. On March 8, 1965, the single justice allowed the motion, and the defendant excepted. There was no error. G.L. (Ter.Ed.) c. 231, § 51. The new commissioner became a party to the controversy when he assumed the office. The defendant's contention that the former commissioner, who no longer has an interest in the proceedings, should be left in the case as the party plaintiff is an obstructionist tactic against the public interest, and is frivolous. See Rule 21 of the Rules for the Regulation of Practice at Common Law and in Equity (1952), 328 Mass. 714. See also Doherty v. Commissioner of Admn., Mass., 212 N.E.2d 485. ^a

The case is here also on a reservation and report without decision by the single justice of questions of law on the bill for declaratory relief, as amended, and the demurrer.

The bill makes these allegations. By appointment of the Governor, the plaintiff holds the office of Commissioner of Administration established by G.L. c. 7, § 4, as appearing in § 4 of St.1962, c. 757, here called the Reorganization Act. The defendant, a veteran as defined in G.L. c. 31, § 21, took office on December 29, 1960, as Director of Personnel and Standardization pursuant to G.L. c. 7, § 7, §§ 5, 6, as then in effect, by appointment by the then Commissioner of Administration (whose term expired on January 5, 1961) with the approval of the Governor and Council. The Reorganization Act, which became law on January 3, 1963, struck out G.L. c. 7, §§ 2, 3, 3A, 4, 5, 5A, 5B, and 6, and substituted new §§ 2, 3, 4, 4A, 4B, 4C, 4D, 5, and 6. Before the effective date of the Reorganization Act, § 5 provided, 'There shall be directly under the commission (on Administration and Finance) a division of personnel and standardization, in charge of a director of personnel and standardization'; and § 6 provided that the Commissioner of Administration 'shall, with the approval of the governor and council, appoint, and fix the salary of, the director of personnel and standardization and may, with like approval, remove him.'

After the effective date of the Reorganization Act the Commission on Administration and Finance and the Division of Personnel and Standardization ceased to exist. In their place G.L. c. 7 created (a) the Executive Office for Administration and Finance (§ 2); within the executive office (b) a fiscal affairs division headed by a deputy commissioner (§ 4A); and within the fiscal affairs division (c) a bureau of personnel headed by a Director of Personnel and Standardization (§ 4B).

Other provisions of the Act are alleged in the bill. The Commissioner of Administration shall be appointed by the Governor, without the approval of the Executive Council, shall serve at the pleasure of the Governor, and 'shall act as the executive officer of the governor * * * within the executive department of the government of the commonwealth.' He shall be 'the executive and administrative head' of the Executive Office for Administration and Finance, 'and every division, bureau, section and other administrative unit and agency within the said office, other than the comptroller's division and the purchasing agent's division, shall be under his direction, control and supervision' (§ 4).

The Director of Personnel and Standardization 'shall * * * be appointed by the commissioner, with the approval of the governor and council, and may be removed, for cause, in like manner; shall be a person of ability and experience, and shall devote his entire time to the duties of his office * * *.' (§ 4B).

The office held by the defendant immediately prior to the Act was not classified under G.L. c. 31, and he had no tenure in such office by reason of G.L. c. 30, § 9A.

On April 23, 1963, the plaintiff appointed a person other than the defendant to the office of Director of Personnel and Standardization and submitted the appointment to the Governor for approval by the Governor and Council. To date no action has been taken. Since January 3, 1963, the defendant has received the salary of Director of Personnel and Standardization and has signed official documents over that title.

Item 0441--10 of St.1963, c. 837, § 2, the supplemental Appropriation Act, provided that 'notwithstanding the provisions of any general or special law to the contrary, the incumbent of position 0001 in appropriation account 0445--01 on January second, nineteen hundred and sixty-three, shall be deemed on January third, nineteen hundred and sixty-three, to have been transferred to the bureau of personnel and shall continue in office unless removed for cause as provided' in G.L. c. 7, § 4B. Position 0001 in appropriation account 0445--01 was the position of Director of Personnel and Standardization, and the defendant was the incumbent on January 2, 1963.

The bill alleges that an actual controversy exists between the plaintiff and the defendant concerning the present status of the defendant in the Executive Office for Administration and Finance, and the right of the plaintiff as Commissioner of Administration to appoint a person other than the defendant to the office of Director of Personnel and Standardization.

There are eight grounds of demurrer, none of which is good. The first is that there is no actual controversy between the commissioner and the director, but only a difference of opinion. This contention ignores many of our decisions, and arises from the assertion that the commissioner can only recommend the approval of a person as director; and that if the Governor and Council to not approve, the commissioner can only make another recommendation. This argument fails to comprehend that the plaintiff is challenging the present status of the defendant in the Executive Office of Administration and Finance. School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518--519, 70 N.E.2d 298. Povey v. School Comm. of Medford, 333 Mass. 70, 71--72, 127 N.E.2d 925.

In 1960 the defendant was appointed to a position from which he could be removed by the commissioner with the consent of the Governor and Council. This position was abolished effective January 3, 1963, and the defendant pretends to be the holder of the office then newly created. Since its creation he has collected the salary, and continues to act, insisting that he may be removed only for cause. The plaintiff challenges the validity of appropriation item 0441--10 and the right of the defendant to the office, and seeks to displace the defendant by making another appointment with the consent of the Governor and Council. There is an actual controversy between the parties as to which it is mandatory upon the courts under G.L. c. 231A, § 1, to make a declaration 'of right, duty, status and other legal relations.' The...