Flomenbaum v. Com.

• Decision Date: 09 July 2008
• Docket Number: SJC-10146
• Citation: 889 N.E.2d 423,451 Mass. 740
• Parties: Mark FLOMENBAUM v. COMMONWEALTH & others.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

889 N.E.2d 423

451 Mass. 740

Mark FLOMENBAUM v. COMMONWEALTH & others.¹

SJC-10146

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 2008.

Decided July 9, 2008.

Thomas R. Kiley, Boston (Garrick Cole with him) for the plaintiff.

Thomas A. Barnico, Assistant Attorney General (James A. Sweeney, Assistant Attorney General, with him) for the defendants.

Stephen V. Miller, Boston, for National Association of Medical Examiners, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

GREANEY, J.

The plaintiff, Dr. Mark Flomenbaum, challenges the decision of Governor Deval L. Patrick to remove him from office as chief medical examiner of the Commonwealth, effective August 1, 2007. In an amended complaint filed in the Superior Court against the Commonwealth, the Governor, and the Secretary of Public Safety (Secretary) (together, the Commonwealth), the plaintiff sought damages for breach of contract (counts one through five) and wrongful removal (counts six through eleven). In addition to damages, the plaintiff sought an order vacating the Governor's decision and mandamus restoring him to office (count twelve). A single justice of this court allowed the Commonwealth's motion, filed pursuant to G.L. c. 211, § 4A, to transfer the case to the county court. There, the Commonwealth moved to dismiss counts one through five of the plaintiff's second amended complaint, pursuant to Mass. R. Civ. P. 12(b), 365 Mass. 754 (1974), and, in answer to claims six through twelve of the second amended complaint, the Commonwealth filed the record of the proceedings before the Governor in connection with the plaintiff's dismissal. The Commonwealth then filed a motion for judgment on the pleadings on counts six through twelve, pursuant to Mass. R. Civ. P. 12(c), 365 Mass. 754 (1974). The single justice reserved and reported the Commonwealth's motions, without decision, to the full court. The parties have submitted proposed questions, which we rephrase for clarity as follows:

1. a. Whether a Governor may remove a chief medical examiner from office "for cause," under G.L. c. 30, § 9, in the absence of proof of misfeasance, malfeasance, or wilful neglect of duty?

b. Whether the proper standard by which a reviewing court evaluates a Governor's decision to remove a chief medical examiner from office "for cause" is whether some evidence in the record before the Governor supported his decision, that is, whether the decision was not arbitrary or capricious?

c. Whether that standard has been met in the circumstances of this case?

2. Assuming that the January 21, 2005, letter of agreement, signed by the plaintiff and the (then current) Secretary, constitutes an employment contract, are the terms of that contract enforceable in the circumstances of this case?

We answer all parts of question one in the affirmative and question two in the negative. We now explain why, first deciding the Commonwealth's motion for judgment on the pleadings, because resolution of that motion in the Commonwealth's favor will have a substantial effect on the motion to dismiss, which will also be resolved in the Commonwealth's favor.

1. A motion for judgment on the pleadings, under rule 12(c), is a challenge to the legal sufficiency of a complaint. See Jarosz v. Palmer, 436 Mass. 526, 529, 766 N.E.2d 482 (2002), quoting J.W. Smith & H.B. Zobel, Rules Practice § 12.16 (1974) (rule 12[c] motion is "actually a motion to dismiss ... [that] argues that the complaint fails to state a claim upon which relief can be granted"). "For purposes of the court's consideration of the [rule 12(c)] motion, all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false." Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 905, 467 N.E.2d 874 (1984), quoting 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 1368, at 691 (1969). Judgment on the pleadings may be entered if a plaintiff fails to present sufficient facts in the complaint to support the legal claims made. For purposes of deciding the Commonwealth's motion, we accept as true the following factual assertions contained in the plaintiff's second amended complaint.

The plaintiff is a physician registered to practice medicine in the Commonwealth. He is board certified in anatomical and forensic pathology and also holds a doctorate in neuroscience. Governor Mitt Romney appointed the plaintiff to the office of chief medical examiner on January 21, 2005, pursuant to G.L. c. 38, § 2.² This appointment followed an aggressive recruitment process necessitated by chronic shortcomings in the office of the chief medical examiner (OCME). The Governor, the Secretary (then Edward Flynn), the undersecretary of forensic services (undersecretary), and members of the commission on medicolegal investigation (CMI)³ were involved in the plaintiff's recruitment and appointment.

On January 21, 2005, the plaintiff and the Secretary signed a letter, drafted by the undersecretary, which embodied the terms on which the plaintiff's acceptance of the appointment would be conditioned. The letter states that its purpose is "to confirm our mutual understanding regarding the commitment of the Commonwealth to support and advocate for the changes you envision for the reform and recovery of the [OCME] and your commitment to restore the integrity and reputation of the office by professionalizing the medicolegal services the OCME provides to the public." The letter lists major focus areas of concern within the OCME that would require: (1) "an increase in the number of medical examiners necessary to handle the cases within the jurisdiction of the OCME"; (2) "the development of a comprehensive medicolegal investigation system within the OCME"; (3) "[a]ccreditation under [national] standards"; and (4) "[t]he improvement or replacement of [medical examiner] facilities so that all are accreditable." The letter states an understanding that "it will take approximately [three to five] years to achieve these goals." The letter further provides that the Executive Office of Public Safety (EOPS) "will support [the plaintiff] in the establishment and promotion of changes to current policies and practices" and that the Secretary looked forward to working with the plaintiff. The letter expressly states that the plaintiff's appointment is governed by G.L. c. 38, § 2, and G.L. c. 30, § 9. The letter was delivered to Governor Romney, who (the plaintiff alleges) ratified its provisions when he appointed the plaintiff to office. The plaintiff's five-year term of office began on April 25, 2005.

On May 3, 2007, the current Secretary (Kevin M. Burke) placed the plaintiff on paid administrative leave and denied him access to the OCME. On June 7, the plaintiff received written notice from the Governor (now Governor Patrick) of his decision to initiate removal proceedings against him "for cause," in accordance with G.L. c. 30, § 9.⁴ In the letter, the Governor referred to what he termed "fundamental operational [and] administrative failures" of the OCME during the prior three months, including a substantial backlog of bodies; one case of a missing body; the OCME's failure to meet public health and occupational safety standards; and the plaintiff's "lack of candor with the administration."

The Governor conducted a hearing on the charges on July 27, 2007. The hearing lasted approximately one hour. In a letter dated August 1, 2007, the Governor informed the plaintiff that he was being removed from office "for cause," effective immediately. The Governor acknowledged in the letter that no question had been raised as to the plaintiff's excellent reputation as a pathologist,⁵ but stated that there had been "serious problems concerning the performance of [the plaintiff's] administrative and managerial duties at the [OCME], most prominently [his] unacceptable handling of the missing body situation." The Governor continued that the plaintiff himself had "candidly acknowledged several operational and administrative failures at the OCME for which [the plaintiff was] responsible" and that the plaintiff's failure to exercise effective management and supervision of the OCME, and the "particular operational failures that have been identified in the record, [left him] without confidence in [the plaintiff's] ability to effectively perform the necessary functions of the office."

a. The parties agree that the plaintiff is a public official subject to removal by the Governor under G.L. c. 30, § 9, "for cause." They disagree, however, on the appropriate standard by which "cause" is measured. The Commonwealth contends that § 9 permits the Governor to remove the chief medical examiner on a general finding of poor performance that includes, among other things, neglect of duty, incompetence, inefficiency, or poor supervision. The plaintiff asserts that statutory "cause" is met only by proof of misfeasance, malfeasance, or wilful neglect of duty. We agree with the Commonwealth.

Some additional statutory background will be helpful at this point. In 1992, the Legislature established the OCME as an office within the EOPS.⁶ See St.1992, c. 368, § 2. The Secretary is the executive officer of the EOPS and serves directly under the Governor, as a member of his cabinet, to carry out the duties and responsibilities of the office. See G.L. c. 6A, §§ 2, 3, 4 (Secretary "conduct[s] comprehensive planning with respect to the functions of [the EOPS] and coordinate[s] the activities and progress of the [S]tate agencies therein"). In 2004, the Legislature created the position of undersecretary of forensic services, St.2004, c. 149, § 18, to be appointed by the Secretary, and gave the undersecretary, among other duties, responsibility for direct oversight of the "functions and administration" of the OCME. G.L....