Howard v. Town of Burlington

Decision Date09 April 1987
Citation506 N.E.2d 102,399 Mass. 585
PartiesSheila E. HOWARD et al. 1 v. TOWN OF BURLINGTON et al. 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Richard J. Fallon, Boston, for defendants.

Alan Altman, Wilmington, for plaintiffs.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The plaintiffs commenced this ten-taxpayer action under G.L. c. 40, § 53, 3 to enjoin the town of Burlington, its board of selectmen, and its treasurer (collectively called town) from defending or indemnifying Paula Davis, the chairwoman of the town's finance committee, in a defamation action brought against her. 4 The plaintiffs claim that the allegedly defamatory statements of Davis were made outside the scope of the authority of the Burlington finance committee (committee) and that any payments by the town on behalf of Davis are not authorized by the Massachusetts Tort Claims Act, G.L. c. 258, § 9 (1984 ed.). 5

After a bench trial, a judge of the Superior Court enjoined the town from expending any monies to defend or indemnify Davis, stating that to do so would be "neither appropriate nor statutorily permissible" under G.L. c. 258, § 9. The town appealed, and we took the case on our own motion. We reverse.

At trial the only witnesses to testify were Davis and Robert Mercier, the town's chief administrative officer. The following summarizes the facts found by the judge.

During 1984 and early 1985, the town was embroiled in a controversy concerning the condition of the town's two ambulances. The finance committee had opposed the purchase of a new ambulance, while the board of selectmen supported the purchase. The positions of the two sides were described as "heatedly antagonistic," and the issue drew widespread public interest. Appropriations for a new ambulance were rejected at both the September, 1984, and January, 1985, town meetings in line with the committee's recommendations.

On February 21, 1985, Davis met with Mercier to discuss the ambulance situation. Both Mercier and Davis testified that Davis went to talk with Mercier as part of her duties as chairwoman of the finance committee. During the discussion Davis told Mercier that residents of the town had approached her about the suspicious circumstances of the ambulance's breaking down immediately after a town meeting vote which had rejected the idea of replacing the equipment. Davis told Mercier that he should "look into" the matter and asked him to commence an investigation. Mercier reported the discussion to the fire chief and at least two of the selectmen but had no communication with any other members of the committee on this issue. Davis did not meet with Mercier at the request or order of the finance committee, and no other members of the committee were present.

The judge ruled that Davis was not acting as a public employee during her discussion with Mercier, and that when "she walked into Mercier's office she left her official identity behind." He based that ruling on three inferences: (1) that although Davis's position permitted her to obtain an audience with Mercier more readily than an ordinary resident, the discussion between them was "no different from the conversation Mercier would have had with any Burlington taxpayer"; (2) that in arranging the meeting Davis sought only to bring Mercier's official attention to the concerns of the residents who approached her; and (3) that since "Mercier reported the discussion to the Fire Chief, the Deputy Chief, and at least two Selectmen, [but h]e did not mention the matter to any member of the Finance Committee; nor did any member of the Finance Committee communicate with him.... Mercier considered Davis to be talking to him in her private capacity."

The town contests the inference that Mercier considered Davis to be talking to him in her private capacity on February 21, 1985. The town also argues that the conversation between Davis and Mercier was within Davis's scope of employment and therefore G.L. c. 258, § 9, does not preclude her from being indemnified by the town.

1. "We give due weight to the findings of the judge who has heard the testimony and who has had an opportunity to weigh the credibility of the witnesses. Seder v. Gibbs, 333 Mass. 445, 446, 131 N.E.2d 376 (1956). His findings of fact will not be set aside unless they are clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974)." Simon v. Weymouth Agricultural & Indus. Soc'y, 389 Mass. 146, 148, 449 N.E.2d 371 (1983). The sufficiency of the evidence is a question of law, however, subject to review by this court. Smith v. Board of Appeals of Brookline, 366 Mass. 197, 200, 316 N.E.2d 501 (1974).

We see no reason why Mercier's reporting the discussion to selectmen, the fire chief and deputy fire chief and not to committee members implies anything about whether he thought Davis was acting in a public or private capacity. Indeed, the evidence was that Davis, not Mercier, customarily reported to the committee the substance of her regular talks with Mercier. The judge found that in arranging the meeting Davis sought to bring Mercier's official attention to the concerns of the residents who approached her. In view of the broad financial responsibility of town finance committees, and the specific concern of the Burlington committee for the need for a new ambulance, the circumstances of the recent breakdown of the ambulance were certainly a subject within the official concern of the committee and its chairwoman. There was simply no direct evidence to support the conclusion that Davis met with Mercier as a private citizen and not as a committee chairwoman. We think the evidence points the other way; but even if this is not so, the taxpayers had the burden of proof on the issue and the evidence would not warrant the finding that Davis did not meet with Mercier in her capacity as committee chairwoman.

2. Even if Davis visited Mercier in her official capacity, there remains the further question whether the conversation fell "within the scope of [Davis's] official duties or employment." The trial judge did not reach the issue as he found Davis to have met with Mercier as a private citizen. The town argues that Davis's action fell within her scope of employment under several theories, including respondeat superior.

We have not had occasion to consider the scope of employment under G.L. c. 258, § 9. However, G.L. c. 258 is modeled closely on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1982). Vasys v. Metropolitan Dist. Comm'n, 387 Mass. 51, 54, 438 N.E.2d 836 (1982). Glannon, Governmental Tort Liability under the Massachusetts Tort Claims Act of 1978, 66 Mass.L.Rev. 7, 9 (1981). In construing Massachusetts statutes we are ordinarily guided by the construction given the parallel Federal statute by the Federal courts. Vasys v. Metropolitan Dist. Comm'n, supra at 54, 438 N.E.2d 836. Kelley v. Rossi, 395 Mass. 659, 662-663 n. 4, 481 N.E.2d 1340 (1985). The Federal courts have referred to the applicable State law of respondeat superior in determining the scope of employment under the Federal statute. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). Lutz v. United States, 685 F.2d 1178, 1182 (9th Cir.1982). Though respondeat superior principles are usually applied to determine whether an employer should be held liable for the acts of employees, the test is, at least, useful in determining the scope of employment under G.L. c. 258, § 9. 6 Cf. Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163 (1987).

The general respondeat superior test involving intentional torts considers whether the act was within the course of employment, and in furtherance of the employer's work. See Wang Laboratories, Inc. v. Business Incentives, Inc., supra; Miller v. Federated Dep't Stores, Inc., 364 Mass. 340, 304 N.E.2d 573 (1973); Rego v. Thomas Bros., 340 Mass. 334, 335, 164 N.E.2d 144 (1960); Levi v. Brooks, 121 Mass. 501 (1877). The scope of an...

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