McSweeney v. Town Manager of Lexington

• Decision Date: 14 February 1980
• Citation: 379 Mass. 794,401 N.E.2d 113
• Parties: John J. McSWEENEY v. TOWN MANAGER OF LEXINGTON et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 113

401 N.E.2d 113

379 Mass. 794

John J. McSWEENEY v. TOWN MANAGER OF LEXINGTON et al. ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 7, 1979.

Decided Feb. 14, 1980.

Reginald H. Howe, Boston (Scott F. Burson, Boston, with him), for defendants.

Morris M. Goldings, Boston, for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

This case originated as a complaint in the nature of certiorari, pursuant to G.L. c. 249, § 4, seeking a review of the decision of the defendant town manager of Lexington, to remove the plaintiff, John J. McSweeney, from his position as superintendent of public works and town engineer for the town of Lexington. A judge of the Superior Court ordered the plaintiff reinstated with back pay and without any penalty for interruption in his employment. This court granted the defendants' application for direct appellate review.

The plaintiff held the position of town engineer of Lexington from December, 1967, to July, 1973. In September, 1970, he was appointed to the position of acting superintendent of the public works department. In March, 1970, the town of Lexington established a selectmen-town manager form of government in accordance with St.1968, c. 753 (hereafter the Town Manager Act). Pursuant to the provisions of that act, in March, 1972, the then town manager appointed the plaintiff superintendent of public works. The plaintiff was reappointed town engineer in September, 1976.

The current town manager took office in January, 1977. He first expressed concern over the plaintiff's performance in December, 1977. At that time the town manager advised the plaintiff that serious action, including removal, would be taken if his performance did not improve. In a letter dated May 23, 1978, the town manager notified the plaintiff that his employment would be terminated effective August 1, 1978. The letter set forth the reasons for the decision to remove the plaintiff from the positions of town engineer and superintendent of public works, citing five examples of poor supervision and review, and three examples of poor performance.

A hearing on the matter was held on July 10, 1978, with the town counsel presiding as the hearing officer. The plaintiff was represented by counsel, and the town manager appeared on behalf of the town of Lexington. By letter dated July 20, 1978, the town manager informed the plaintiff of his conclusion that the evidence presented at the hearing supported all, except one, of the eight grounds for removal set forth in the May 23, letter. The town manager indicated that he would execute the termination, effective August 1, 1978. A later hearing by the board of selectmen, ordered by the court, ² resulted in a board decision to support the town manager's decision to remove the plaintiff. After reviewing the evidence presented at the July 10 hearing, a judge of the Superior Court concluded "that there is not 'just cause' for McSweeney's removal; that there is not substantial evidence which indicates or supports reasons sufficient in law for McSweeney's removal." ³ Accordingly, the judge ordered the plaintiff reinstated.

We agree with the defendants' contention that the judge misconstrued the removal "for cause" standard contained in the Town Manager Act, St.1968, c. 753, § 2. The statute provides in pertinent part: "(e ) The town manager shall appoint . . . a superintendent of public works . . . . (f ) Any person so appointed under subparagraph (b ), (d ) and (e ) who is not subject to the provisions of chapter thirty-one of the General Laws ⁴ may be removed by the appointing authority for cause on five days notice in writing setting forth the cause of such removal . . . ."

The judge's initial statement of the removal standard was correct. He quoted from this court's opinion in Dunn v. Mayor of Taunton, 200 Mass. 252, 258, 86 N.E. 313, 315 (1908), where we stated, "official action . . . under a power of removal 'for cause' can be revised by this court only when there has been an arbitrary exercise of power, and the cause alleged for the removal is unreasonable and in law insufficient." However, the judge's further enunciation of the standard was erroneous, confusing the "for cause" standard with the "misconduct" standard. He stated, "although concerned only with charges of misconduct, the court in Bunte (v. Mayor of Boston, 361 Mass. 71, 76, 278 N.E.2d 709 (1972)) appears to be requiring that before a public officer can be removed because of inefficiency or misconduct with regard to particular aspects of his or her duties, such public officer must somehow be apprised of what is expected of him or her in that regard. Thus, to be legally sufficient, the stated causes for McSweeney's removal must amount to a substantive dereliction of known duties or standards of performance."

The plaintiff in Bunte, was removed from office in accordance with the statutory procedure established by G.L. c. 121B, § 6, which provides for removal "because of inefficiency, neglect of duty or misconduct in office." Removal "for cause" does not require a showing of inefficiency, neglect or misconduct, and hence the cause for removal need not amount to a substantive dereliction of known duties or standards of performance, as the Superior Court judge indicated. While inefficiency, neglect, and misconduct are all legally sufficient causes for removal, it does not follow that they are the only legally sufficient causes. Removal "for cause" embraces many situations which are not encompassed under the "misconduct" standard of G.L. c. 121B, § 6. For example, the good faith abolition of a position for valid reasons constitutes a legally sufficient cause for removal which involves no allegation of neglect or misconduct. See Nutter v. School Comm. of Lowell, 5 Mass.App. 77, 79-80, 359 N.E.2d 962 (1977).

The mere assertion of cause for removal which includes allegations of inefficiency or neglect does not transform the "cause" standard into a "misconduct" standard. It is not the cause alleged which determines the appropriate standard, but rather the statutory provision. ⁵

The "for cause" standard in the Town Manager Act reflects a legislative intention to allow the town manager to exercise his good professional judgment in making personnel decisions relative to subordinate appointed officials. ⁶ The town manager should be allowed to exercise his discretion to remove untenured officials such as McSweeney, in whose competency and efficiency he has less than complete confidence, so long as he does not abuse his discretion or exercise it in an arbitrary or capricious manner. This court has set forth the "for cause" standard in a long line of cases. See Rinaldo v. School Comm. of Revere, 294 Mass. 167, 169, 1 N.E.2d 37 (1936); Dunn v. Mayor of Taunton, supra, 200 Mass. at 258, 86 N.E. 313; Gaw v. Ashley, 195 Mass. 173, 177, 80 N.E. 790 (1907); Nutter v. School Comm. of Lowell, supra, 5 Mass.App. at 81, 359 N.E.2d 962. "Cause" under the Town Manager Act includes any ground asserted in good faith which is not arbitrary, irrational, unreasonable or irrelevant to the town manager's task of ensuring efficient management of the town. ⁷ The judge did not properly apply this standard. The cause alleged was reasonable and in law sufficient. ⁸

Having determined that the judge did not apply the appropriate removal standard, we now turn to the question whether the judge applied the correct standard of review to the town manager's decision. Separate issues are presented; the removal standard going to the question of what kind of cause is deemed sufficient, and the standard of review going to the question of how a reviewing court determines whether the cause alleged has been substantiated.

The judge correctly treated this case as involving a complaint in the nature of certiorari under G.L. c. 249, § 4. Relying on Boston Edison Co. v. Boston Redevelopment Auth., --- Mass. ---, --- ^a, 371 N.E.2d 728 (1977), he ruled that "(t)he scope of review under G.L. c. 249, § 4, as amended, is the 'substantial evidence' test. . . . That is, '(t)he evidence must be held to be insufficient as a matter of law unless there was " substantial evidence" to support the findings. . . .' Bunte v. Mayor of Boston, supra (361 Mass.) at 74 (278 N.E.2d 709)." Although we determined that the substantial evidence test was the appropriate standard of review in the Boston Edison Co. case, we made the following observation about the significance of the 1973 amendment to G.L. c. 249, § 4: ⁹ "The deletion of the provision permitting challenges based on insufficiency of the evidence, the only statutory provision concerning judicial review in connection with a writ of certiorari, was designed to permit the appropriate scope of review to be tailored to the substance of the complaint." BOSTON EDISON CO., SUPRA AT --- , 371 N.E.2D AT 738^B.

Thus, we will consider "the nature of the action sought to be reviewed," in determining the appropriate standard of review in this case. Id. at --- ^c, 371 N.E.2d at ---. The town manager terminated the employment of an appointed official pursuant to St.1968, c. 753, § 2, which provides for removal "for cause." The cause alleged was not arbitrary, unreasonable, or irrelevant to the town manager's task of ensuring efficient management of the town. In reviewing the town manager's decision that the cause alleged was supported by the evidence presented at the hearing before him, we will uphold such decision so long as it is not arbitrary, capricious or an abuse of discretion. In other words, our review of the evidence presented at the removal hearing will not be to determine whether there was substantial...