Commissioner of Administration v. Kelley

• Decision Date: 06 February 1967
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMISSIONER OF ADMINISTRATION v. Leonard A. KELLEY.

Page 670

223 N.E.2d 670

351 Mass. 686

COMMISSIONER OF ADMINISTRATION v. Leonard A. KELLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 4, 1967.

Decided Feb. 6, 1967.

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

James W. Kelleher, Boston, for defendant.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiff in this bill in equity seeks a ruling that he may appoint a person other than the defendant as Director of Personnel and Standardization. Anthony P. DeFalco, appointed by the Governor as Commissioner of Administration on January 5, 1967, has on his motion been substituted as plaintiff by order of this court. See Commissioner of Admn. v. Kelley, 1966, 350 Mass. 501, 215 N.E.2d 653. That decision held that the bill states a controversy appropriate for declaratory relief under G.L. c. 231A and that the defendant's demurrer should be overruled. A master's report having been confirmed, a single justice reserved and reported the case without decision for determination on the report and the pleadings.

The defendant, a veteran as defined in G.L. c. 31, § 21, duly took office December 29, 1960, as Director of Personnel and Standardization under G.L. c. 7, §§ 5 and 6, and then in effect, his appointment having been made by the then Commissioner of Administration with the approval of the Governor and the Executive Council.

The so called Reorganization Act (St.1962, c. 757), by § 75, took effect January 3, 1963. The act made extensive changes in existing statutes, principally in G.L. c. 7, the scope of which is barely suggested by the change in the title of the chapter from 'Commission on Administration and Finance' to 'Executive Office for Administration and Finance.' Section 74 of the new act provides: 'The commission on administration and finance is hereby abolished.' Section 72 provides for the continuance in office of the incumbents of certain offices not including the defendant's office. Section 73 provides for transfer to the service of the executive office of '(a)ll officers, deputies and employees of any board, office, agency, division, bureau, section or other administrative unit within, under or attached to the commission on administration and finance and the office of the state superintendent of buildings.' These sections are quoted later in this opinion.

The plaintiff's predecessor in the new office of Commissioner of Administration, as newly constituted by G.L. c. 7, § 4 (inserted by the Reorganization Act, St.1962, c. 757, § 4), on April 23, 1963, appointed to the position of Director of Personnel and Standardization a person other than the defendant. The Governor declined to approve any appointment to the office pending an opinion of the Attorney General. An opinion was received by the incumbent Commissioner on July 8, 1963. No further action has been taken with respect to an appointment to the position under the new statute. The defendant has continued to perform the duties of Director of Personnel and Standardization. In general, the functions that he carries out are the same as they were prior to the effective date of the Reorganization Act.

Prior to January 3, 1963, the statute provided (c. 7, § 2, as amended through St.1948, c. 610, § 1) for a commission of four members, to serve directly under the Governor and Council and for (§ 3, as amended through St. 1955, c. 730, § 3) one of the members to be appointed by the Governor, with the advice and consent of the Council, as chairman of the commission, to be designated and known as the Commissioner of Administration. Certain provisions of the old §§ 4, 5A, 5B and 6C are summarized in the margin. ¹ Section 5 provided: 'There shall be directly under the commission a division of personnel and standardization, in charge of a director of personnel and standardization.' Section 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.'

The Reorganization Act (St.1962, c. 757) by § 4 struck §§ 2, 3, 3A, 4, 5, 5A, 5B and 6 of G.L. c. 7, and substituted new sections 2, 3, 4, 4A, 4B, 4C, 4D, 5 and 6. Thus there was established (§ 2) 'the executive office for administration and finance, which shall serve directly under the governor and council' and (§ 3) 'shall serve as the principal agency of the executive department' for '(1) Developing, co-ordinating, administering and controlling the financial policies and programs of the commonwealth; (2) Supervising the organization and conduct of the business affairs of the departments, commissions, offices, boards, divisions, institutions and other agencies within the executive department * * *; (3) Developing new policies and programs which will improve the organization, structure, functions, economy, efficiency, procedures, services and administrative practices of all such departments, commissions, offices, boards, divisions, institutions and other agencies.'

New § 4 of c. 7 provides for the appointment by the Governor of a Commissioner of Administration to serve at the pleasure of the Governor. Except in the case of the comptroller's division and the purchasing agent's division, 'the commissioner shall be responsible for the exercise of all powers and the performance of all duties assigned by law to the executive office for administration and finance or to any division, bureau or other administrative unit or agency under the said office.' The section makes him the executive and administrative head, and, with the same two exceptions, places 'under his direction, control and supervision' all the subdivisions of the office. 'He shall act as the executive officer of the governor in all matters pertaining to the financial, administrative, planning and policy co-ordinating functions and affairs of the departments, commissions, offices, boards, divisions, institutions and other agencies within the executive department of the government of the commonwealth.' Other consistent broad powers are expressed.

The organization of the new executive office under the Commissioner is stated in §§ 4A to 6. ² Section 4B creates in the new fiscal affairs division four specified bureaus including 'a bureau of personnel, headed by a director of personnel and standardization.' ³ The heads of the four specified bureaus 'shall each be appointed by the commissioner, with the approval of the governor and council, and may be removed, for cause, in like manner * * * and none of the said offices shall be classified under chapter thirty-one (Civil Service).'

1. The Reorganization Act, by abolishing the department of government within which the defendant served, by providing for a substantially different department, and showing no intent for any continuity in office for the incumbent, abolished the defendant's position. Commissioner of Admn. v. Kelley, 1966, 350 Mass. 501, 505, 215 N.E.2d 653; Taft v. Adams, 3 Gray, 126, 130; Williams v. City of New Bedford, 303 Mass. 213, 21 N.E.2d 265, and cases cited; Cullen v. Mayor of City of Newton, 308 Mass. 578, 580, 32 N.E.2d 201.

The Reorganization Act constituted a comprehensive reform in respect of management functions formerly assigned in part to the Commission on Administration and Finance. The Commissioner of Administration under the new statute has powers and duties materially enlarged and changed from those assigned to the officer of the same title under the former statutes. The use of the same title does not obscure the fact that it is a different office. That most or all of the more limited functions of the old commission are functions of the new executive office and its executive head does not lessen the significance of the change. The new position of Director of Personnel and Standardization is within a new department and within a new organization unit, the division of fiscal affairs. The incumbent is subject to a different tenure. As head of one of the four bureaus comprising the division of fiscal affairs, the new director occupies a position lower in rank than did the defendant, who, prior to the act, had been in charge of a division directly subordinate to the commission on administration and finance. Compare Simonian v. Boston Redevelopment Authy., 342 Mass. 573, 583, 174 N.E.2d 429.

The defendant has pointed out that the Reorganization Act specified in § 74 only the abolition of '(t)he commission on administration and finance,' established subdivisions in the new executive office with the same or similar duties to those that existed under the commission, and provided for the transfer of incumbent officers and employees. He suggests that these provisions show an intention to continue the subdivisions as parts of the governmental structure notwithstanding the abolition of the 'commission,' with the effect of continuing all the offices and positions in all the subdivisions. We disagree. The expressed intent is only in respect of continuity of employment notwithstanding the creation of a new department. We see no implication of continuity of the old department into the new one beyond that necessary to support the expressed intent.

We rule that the Reorganization Act did not provide continuity of employment for the incumbent of the old office of Director of Personnel and Standardization or show an intent that there be such continuity.

Section 72 of the amending statute provides: 'Notwithstanding the provisions of section three ⁴ of this act, the incumbents of the offices of comptroller, state purchasing agent and state superintendent of buildings immediately prior to the effective date of this act shall continue to serve as comptroller, state purchasing agent and state superintendent of buildings, respectively, until expiration of the term for which he shall have been appointed; and the incumbent of the office of budget...