Fabrizio v. City of Quincy

• Decision Date: 15 May 1980
• Citation: 404 N.E.2d 675,9 Mass.App.Ct. 733
• Parties: Hugo P. FABRIZIO v. CITY OF QUINCY et al. 1
• Court: Appeals Court of Massachusetts

Page 675

404 N.E.2d 675

9 Mass.App.Ct. 733

Hugo P. FABRIZIO v. CITY OF QUINCY et al. ¹

Appeals Court of Massachusetts, Norfolk.

Argued Jan. 16, 1980.

Decided May 15, 1980.

Kevin M. Keating, Boston, for plaintiff.

Laurence W. Cowley, Asst. City Sol., Quincy, for defendants.

Before ARMSTRONG, ROSE and KASS, JJ.

ARMSTRONG, Justice.

In February, 1977, the then mayor of Quincy appointed the plaintiff a member of the city's board of assessors to serve a three-year term. In October a new mayor (who is named as a defendant in this action) removed the plaintiff, filing a statement of reasons for the removal with the city clerk in accordance with the provisions of G.L. c. 43, § 54. The plaintiff brought this action to contest the validity of his removal and to recover damages for injury to his reputation. The defendants moved for dismissal of the complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), for failure to state a claim on which relief could be granted. That motion was allowed, and the plaintiff appealed from the ensuing judgment.

Dismissals on the basis of pleadings, before facts have been found, are discouraged; the standard applied under rule 12(b)(6) is that "a complaint is sufficient unless it shows beyond doubt that there is no set of facts which the plaintiff could prove in support of his claim which would entitle him to relief." White v. Spence, 5 Mass.App. 679, 683, 369 N.E.2d 731, 734 (1977), and case cited. Under that formulation the vague or ambiguous complaint tends to be immune from dismissal under rule 12 (see, e. g., Balsavich v. Local 170, Intl. Brotherhood of Teamsters, 371 Mass. 283, 287, 356 N.E.2d 1217 (1976); Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944)); but where, as here, the complaint sets out with clarity and precision the detailed factual allegations which the plaintiff contends entitle him to relief, it is appropriate, although not required, to allow a motion to dismiss if the allegations of the complaint "clearly demonstrate that plaintiff does not have a claim." 5 Wright & Miller, Federal Practice and Procedure: Civil § 1357 at 604, and cases cited in n.84 (1969).

The statute under which the mayor acted, G.L. c. 43, § 54, provides that the mayor "may remove the head of a department or member of a board by filing a written statement with the city clerk setting forth in detail the specific reasons therefor." ² The specific reasons given in the statement were "failure to properly assess", "improper assessments resulting in a detriment" to the city, and "(g)eneral inability to comprehend the governing statutes on assessments."

The complaint alleges that those reasons were "false and specious", and that allegation must be taken as true for the purpose of ruling on the motion to dismiss. White v. Spence, supra 5 Mass.App. at 683, 369 N.E.2d 731. But the validity of a removal under § 54 does not depend on the truth of the reasons given. Section 54 is one of a number of statutes the purpose of which is "to qualify a removal at pleasure by requiring a record to be made of the cause." O'Dowd v. Boston, 149 Mass. 443, 446, 21 N.E. 949, 950 (1889). See Ayers v. Hatch, 175 Mass. 489, 491-492, 56 N.E. 612 (1900); Murphy v. Mayor of Boston, 220 Mass. 73, 74-76, 107 N.E. 378 (1914); McKenna v. White, 287 Mass. 495, 496-498, 192 N.E. 84 (1934); Ray v. Mayor of Everett, 328 Mass. 305, 309-310, 103 N.E.2d 269 (1952). Such a statute "allow(s) summary removals without hearing, with the condition that the cause of the removal should be put on record. This would naturally have an effect to prevent improper removals, and, in case of a removal for cause for which it could not lawfully be made ³, would make redress possible, giving to the person removed the same remedy he would have had (if) the removal had been for satisfactory cause found after a hearing . . . . With or without a hearing, there is a record of the cause of removal, and the appeal in either case is to public opinion." O'Dowd, 149 Mass. at 447, 21 N.E. at 950. The statute was complied with here: a statement of reasons was prepared and sent and was filed with the clerk. The reasons given may have been false, but they are reasons for which removal may lawfully be made (see Ayers v. Hatch, supra 175 Mass. at 492, 56 N.E. 612); and the plaintiff would not be entitled to restoration to his position if he should succeed in proving that the reasons were in fact untrue.

The statute did not require a hearing before termination, and, contrary to the plaintiff's argument, he was not entitled by due process to such a hearing. He had no "property interest" in the position of assessor, absent statutory tenure or "rules or mutually explicit understandings that support (a) claim of entitlement to the (position)." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). There was no violation of his "liberty" interest; the reasons given for his discharge did not "stigmatize" the plaintiff as that term was used in Board of Regents v. Roth, 408 U.S. 564, 573-574, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). The reasons were not of a type that might seriously damage his standing and associations in his community or that might have the effect of foreclosing his freedom to take advantage of other employment opportunities. See Codd v. Velger, 429 U.S. 624, 638, 97 S.Ct. 882, 889, 51 L.Ed.2d 92 n.11 (1977) (Stevens, J., dissenting); Stetson v. Selectmen of Carlisle, 369 Mass. 755, 761, 343 N.E.2d 382 (1976); Grant v. Police Commr. of Boston, 7 Mass.App. ---, --- ^a, 387 N.E.2d 178 (1979).

In addition to the claim for reinstatement the complaint set forth...