Doherty v. Commissioner of Administration

• Decision Date: 07 December 1965
• Citation: 349 Mass. 687,212 N.E.2d 485
• Parties: Paul L. DOHERTY, William J. Spellman and Francis V. Perry v. COMMISSIONER OF ADMINISTRATION. *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 485

212 N.E.2d 485

349 Mass. 687

Paul L. DOHERTY, William J. Spellman and Francis V. Perry v. COMMISSIONER OF ADMINISTRATION. ^*

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1965.

Decided Dec. 7, 1965.

John E. Sullivan, Asst. Atty. Gen. (Augustus J. Camelio, Asst. Atty. Gen., with him), for defendant.

Lawrence F. O'Donnell, Boston (Mitchell G. Hadge, Boston, and John B. Greene, Boston, Mass., with him), for plaintiffs.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, and REARDON, JJ.

KIRK, Justice.

The plaintiffs are capitol police ¹ officers who seek a determination under G.L. c. 231A of the validity of dismissal proceedings brought against them by the commissioner on December 9, 1964. The single issue is whether the commissioner or the State superintendent of buildings (superintendent) is the 'appointing authority' of capitol police officers. The resolution of this issue is determinative of who is the proper official before whom dismissal hearings should be held under G.L. c. 31, § 43 (a). ²

The judge ruled that the superintendent, and not the commissioner, was the appointing authority. The final decree enjoined hearings before the commissioner. The case is here on the commissioner's appeal under G.L. c. 231A, § 4.

It is not disputed that under G.L. c. 8, § 4, the appointing authority lay with the superintendent. That statute provides that the superintendent 'may appoint such * * * capitol police officers * * * as may * * * enable him to perform his duties.' This provision has never been expressly repealed. The plaintiffs contend that despite subsequent legislation, later to be discussed, the appointing authority remains with the superintendent. They argue in part that had the Legislature intended to withdraw the appointing authority granted by G.L. c. 8, § 4, it would have done so by express repeal, as indeed the Legislature by St.1962, c. 757, § 35, did expressly repeal G.L. c. 8, § 2, relating to the appointment, tenure and salary of the superintendent. They ask us to conclude that the superintendent is still the appointing authority and that the hearings for dismissal may properly be held only before him.

The commissioner, on the other hand, contends that by St.1962, c. 757, in amendment of G.L. c. 7 and c. 8, the appointing authority by necessary implication has been transferred from the superintendent to the commissioner. We examine this contention. It is plain that St.1962, c. 757, effected far reaching changes in the executive department of the government of the Commonwealth. Among other changes, it established the Executive Office for Administration and Finance (G.L. c. 7, § 2, as amended by St.1962, c. 757, § 4), and, with two express exceptions not here material, ³ provided that '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. He shall be the executive and administrative head of the said office; and every division, bureau, section and other administrative unit and agency within the said office, other than * * * [named exceptions (see fn. 5)] shall be under his direction, control and supervision.' G.L. c. 7, § 4, as amended by St.1962, c. 757, § 4, and by St.1963, c. 801, § 11. The 1962 amendment, by the enactment of what is now G.L. c. 7, § 4A, created four divisions within the Executive Office for Administration and Finance, one of which was designated as a 'central services division, headed by a deputy commissioner for central services,' and, by the enactment of what is now § 4C, provided that 'There shall be within the central services division * * * a bureau of state buildings headed by a state superintendent of buildings * * * appointed by the commissioner, with the approval of the governor and council,' and by the enactment of what is now § 4D, provided, again with express exceptions (see fn. 5), that 'the commissioner shall appoint all employees of the executive office for administration and finance' (emphasis supplied).

The effects of the foregoing provisions of St.1962, c. 757, are that the plaintiffs, as capitol police officers, are employees in an agency of the bureau of State buildings whose immediate head is the State superintendent of buildings; that the bureau of State buildings is a subdivision of the central services division; that the central services division is one of the four major divisions of the Executive Office for Administration and Finance, and that all of the employees in the central services division of the Executive Office for Administration and Finance are appointed by the commissioner 'in accordance with chapter 'in accordance with chapter thirty-one.'

This comprehensive delegation to the commissioner of the authority to appoint all employees, with specific exceptions, coupled with the legislative declaration that, as executive and administrative head of the Executive Office for Administration and Finance, he has 'direction, control and supervision' over 'every * * * bureau * * * within the said office' lead us to the conclusion that under G.L. c. 7, § 4D, inserted by St.1962, c. 757, § 4, the commissioner became the appointing authority of the plaintiffs.

We are thus confronted with a situation where two State public officers by separate and extant statutory...