Gildea v. Ellershaw

• Citation: 363 Mass. 800,298 N.E.2d 847
• Parties: William A. GILDEA v. Leonard H. ELLERSHAW et al. 1
• Decision Date: 09 July 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 847

298 N.E.2d 847

363 Mass. 800

William A. GILDEA v. Leonard H. ELLERSHAW et al. ¹

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 5, 1972.

Decided July 9, 1973.

P. J. Piscitelli, Brockton (John P. Connor, Jr., Norwood, with him) for defendants.

Robert G. Clark, III, Brockton, for plaintiff.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, and KAPLAN, JJ.

QUIRICO, Justice.

This is an action of tort in which the plaintiff, the former city manager of the city of Brockton, seeks to recover damages from five former members of the Brockton city council (defendants) for their alleged wrongful and unlawful action in attempting to remove him from his office as city manager. The case was tried to a jury who returned a verdict for the plaintiff on count 13 and it is now before us on the defendants' bill of exceptions limited to this count of the plaintiff's declaration. ²

Count 13 alleges in substance that in April, 1961, when the plaintiff was the city manager of the city of Brockton, the five defendants who were five of the seven members of the city council wrongfully and unlawfully purported to remove him from his office, and in so doing they failed and refused to furnish him with specific reasons for his removal and to afford him a reasonable opportunity to prepare and present his defence as required by G.L. c. 43, as amended. It further alleges that as a result of the defendants' wrongful and unlawful conduct his reputation, credit and standing in the community were damaged, he was deprived of the salary of his office, was put to expense to litigate the matter, was caused to suffer injury to his feelings and great anguish of mind, and it was impossible for him to secure employment as a city manager or in a position of comparable status elsewhere. The declaration makes no allegation that the defendants acted in bad faith or with malice in their efforts to remove him.

A brief statement of the factual background from which this litigation arose will be helpful. On January 6, 1958, the city of Brockton installed its first city government under a Plan D form of city charter as described in G.L. c. 43, §§ 79 through 92A, as appearing in St.1948, c. 459, § 8. The charter provided for a mayor, a city council of seven persons and a city manager. On the same date the city council appointed the plaintiff the city manager to 'hold office during the pleasure of the city council' as provided in § 89. At the municipal election in November, 1959, the voters of Brockton voted to adopt a Plan B form of charter as described in G.L. c. 45, §§ 56 through 63, to supersede the Plan D form of charter on January 1, 1962. ³

At a meeting of the city council held on April 7, 1961, the five defendants filed a proposed order, signed by all of them, that the plaintiff 'be removed from office for cause, in accordance with . . . (G.L. c. 43, § 89); the final vote on his removal . . . not to be taken until after, upon his request, he be given a written statement of the reasons alleged for his removal, and the right to be heard publicly thereon on at a meeting of the City Council' and that pending such proceedings he be suspended from office. The order was adopted at a meeting of the council held on April 10, 1961, the five defendants voting for adoption and the other two councillors voting against adoption. At the same meeting the plaintiff filed (a) a written demand for a public hearing on the order of removal, (b) a written demand that he be given a statement, in writing, of the reasons alleged for his removal, for cause, and for his suspension, and (c) a reservation of his right to challenge his proposed removal by reason of a number of alleged irregularities in the removal proceedings.

On or about April 11, 1961, the defendants caused to be delivered to the city clerk of Brockton a written statement addressed to the plaintiff and reading in part as follows: '(W)e submit the following reasons for your removal as city manager of the city of Brockton:--1. We no longer have any confidence in your ability to properly administer the affairs of the city of Brockton. 2. We feel that it is in the best interests of the city of Brockton to terminate your services as city manager. You are hereby notified that . . . you will have the right to be publicly heard thereon at a meeting of the city council, to be held on Monday next, April 17, 1961, at eight P.M., in the City Council Chamber.' The city clerk caused a copy of this document to be delivered to the plaintiff's residence. This document was drafted at a conference of four of the defendants and signed by all five defendants before it was filed with the city clerk. It was never read or adopted at any meeting of the city council as 'a written statement of the reasons alleged for . . . removal' of the plaintiff from office. G.L. c. 43, § 89.

At a meeting held on April 17, 1961, the city council held a public hearing on the proposal to remove the plaintiff from the office of city manager. The plaintiff and his then attorney spoke at some length in the plaintiff's behalf, and other persons were given an opportunity to be heard. After the public hearing was closed the defendants presented a proposed order, previously signed by all of them, to the effect that 'the services of William A. Gildea are terminated, and that this vote be a final vote on the subject of the removal of said William A. Gildea as City Manager.' The vote on the order was deferred to the council meeting of April 20, 1961, at which meeting it was adopted with the five defendants voting for adoption and the other two councillors voting against adoption. At a meeting held on April 22, 1961, the city council appointed the city clerk as the acting city manager, and he continued to serve in that capacity for most or all of the balance of that year.

In July, 1961, the plaintiff entered a petition for a writ of mandamus and a petition for certiorari in the Superior Court against the present defendants and others contesting the validity of his removal. The petitions were heard before a judge (first judge) other than the one who presided over the present case. On November 1, 1961, he found and ruled that the statement of reasons for removal signed by the five defendants and served on the plaintiff on or about April 12, 1961, did not satisfy the requirements of G.L. c. 43, § 89. ⁴ for the primary reason that it was never 'adopted by the members of the city council at any meeting thereof, special or regular.' On November 14, 1961, he ordered that both petitions be dismissed 'as matter of discretion, and not of law, . . . without prejudice to the bringing of other proceedings for claim for compensation.' ⁵ The record indicates no claim of exceptions to or appeal from the rulings or orders disposing of those petitions. The present action was started by a writ dated March 24, 1963.

Although the defendants' bill of exceptions purports to present thirty-two separate exceptions before this court for consideration and decision, we consider first the principal issue around which many of the exceptions revolve. That issue is (a) whether the plaintiff is entitled to recover on the basis of alleging and proving merely that the defendants attempted to remove him as city manager and in doing so they failed to comply with the requirements of G.L. c. 43, § 89, with the result that the judge who heard the mandamus proceedings held that the defendants' vote purporting to remove the plaintiff 'is of no force or effect in removing him from that office,' or (b) whether the plaintiff must allege and prove, in addition thereto, that the defendants acted in bad faith or with malice in attempting to remove him from office. The plaintiff did not allege or prove, and he contends that he is not required to allege or prove, bad faith or malice on the part of the defendants in order to recover. The defendants contend that the plaintiff is required to do so and that having failed to do so he is not entitled to recover.

The plaintiff neither alleged nor offered any evidence that the defendants acted in bad faith or with malice. Whenever, during the trial, the defendants offered evidence tending to bear upon or prove that they had acted in good faith and without malice, the plaintiff objected thereto and the evidence was excluded. The defendants filed motions for directed verdicts in their favor at the close of all the evidence which squarely raised the issue of the sufficiency of the plaintiff's allegations and proof. They again raised this question by their exceptions to the trial judge's refusal to give requested instructions to the jury and by exceptions to instructions actually given to the jury.

We hold that the plaintiff's allegations and proof were insufficient to entitled him to recover, and that the denial of the defendants' motions for directed verdicts was error.

It is quite obvious that in the matter of the principal issue which we are now discussing the plaintiff relies almost entirely on our decision in Stiles v. Municipal Council of Lowell, 233 Mass. 174, 123 N.E. 615. In that case the plaintiff held a civil service position as city treasurer and collector of taxes. The city council had authority to remove him for cause under statutes relating to the civil service. Three of the five city councillors purported to suspend and remove him but they failed to comply with a statutory requirement that they give him notice of the proposed action and a statement of reasons for removal. When the matter first came before this court in Stiles v. Municipal Council of Lowell, 229 Mass. 208, 210, 118 N.E. 347, we held the removal was a nullity. When a second proceeding between the same parties came to us in Stiles v. Municipal Council of Lowell, 233 Mass. 174, 123 N.E. 615, (the Stiles case), we held that the three councillors were liable in damages, including counsel fees incurred by the plaintiff, for their interference with...