Perullo v. Advisory Comm. on Pers. Standards

• Decision Date: 24 April 2017
• Docket Number: SJC-12095
• Citation: 476 Mass. 829,72 N.E.3d 1048
• Parties: Renee PERULLO v. ADVISORY COMMITTEE ON PERSONNEL STANDARDS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 829

72 N.E.3d 1048

Renee PERULLO

v.ADVISORY COMMITTEE ON PERSONNEL STANDARDS.

SJC-12095

Supreme Judicial Court of Massachusetts, Suffolk..

Argued January 9, 2017.

Decided April 24, 2017.

John F. Tocci ( Cary P. Gianoulis , Boston, also present), for the plaintiff.

Suleyken D. Walker , Assistant Attorney General, for the defendant.

Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.¹

BOTSFORD, J.

In 2014, the clerk-magistrate of the Salem Division of the District Court Department (Salem District Court) removed the plaintiff, Renee Perullo, from her position as an assistant clerk-magistrate of that court. Perullo's removal followed a lengthy series of disciplinary reprimands and suspensions for misconduct that included abuse of leave time and other inappropriate behavior. Perullo brought this action in the nature of certiorari in the Superior Court to challenge her removal, and contends that the decision to remove her exceeded the statutory authority of the clerk-magistrate, in any event was arbitrary or capricious, and also violated her constitutional guarantee of due process. In ruling on cross motions for judgment on the pleadings, a Superior Court judge rejected Perullo's contentions and upheld the removal decision. Given Perullo's history of misconduct, we agree that it was appropriate for the clerk-magistrate to factor in the whole of Perullo's disciplinary record in deciding that removal was the appropriate level of discipline. We affirm the judgment of the Superior Court.

Background .² Perullo began her employment with the Commonwealth's trial court system in 1989. At the time of her removal in June, 2014, Perullo served as an assistant clerk-magistrate of the Salem District Court. According to § 2.000 of the Massachusetts Trial Court Personnel Policies and Procedures Manual (Jan. 7, 2013) (Manual), an assistant clerk is a "managerial employee."

Perullo maintained a clean disciplinary record until 2006. Thereafter, she was disciplined numerous times by various District Court clerks. As detailed below, Perullo's disciplinary infractions generally fell into two categories—excessive absenteeism and inappropriate behavior.

In February, 2006, Perullo agreed to a ten-day suspension without pay due to "inappropriate behavior" with a member of the Salem police department. In November, 2006, after agreeing to an indefinite transfer to the Lynn Division of the District Court Department (Lynn District Court), Perullo received a written warning for her use of profanity during a discussion with the clerk-magistrate of that court. In January, 2007, the clerk-magistrate requested that Perullo not return to the Lynn District Court based on the profanity incident, along with her failure to properly stamp certain criminal files, one of her assigned responsibilities.

In May, 2008, while assigned to work in the Chelsea Division of the District Court Department, Perullo made disparaging remarks about Spanish-speaking persons during a recess in court proceedings. As a result, the presiding judge of that court requested that Perullo be reassigned, and Perullo ultimately was placed on administrative leave for approximately one week.

In November, 2009, after being transferred back to the Salem District Court, Perullo was removed from the payroll after exhausting all of her accrued leave time. Perullo's supervisor, Clerk–Magistrate Brian Lawlor, advised her not to abuse her sick time because it had an adverse impact on the administration of the court. On a day in June, 2010, Perullo did not report to work in the morning, but called in sick at some point after noon. Shortly thereafter, she was again removed from the payroll, having again exhausted all of her accrued leave time. Ultimately, Lawlor issued Perullo a written reprimand, informing her that any continued sick time abuse or insubordination could result in further disciplinary action, "up to and including termination."

The following month, Perullo was suspended without pay for five days after an "altercation" with two correction officers in the court parking lot. In June, 2011, Perullo was again suspended without pay, this time for one month. The suspension was based on twelve violations of court rules governing persons authorized to take bail, nine violations of the standards of employee conduct, and other infractions. In a letter describing these violations, Lawlor informed Perullo that, in light of her entire disciplinary record, Lawlor at that time believed he had the authority to terminate Perullo. However, Lawlor informed Perullo that, instead of termination, he would impose a two-month suspension without pay. In a subsequent written agreement that reduced the suspension to one month, Perullo, after consulting with and being advised by counsel, agreed to "accrue and use sick time properly" pursuant to the Manual, and "acknowledge[d] that any further disciplinary action [was] likely to result in her termination."

In February, 2014, Lawlor issued Perullo another written reprimand regarding her "pattern of abuse" of leave time. This memorandum explained that between January, 2012, and February, 2014, Perullo had only worked one two-week pay period during which she did not use any time off, and as a result she had just over six days of accumulated time off remaining. The reprimand memorandum also expressed Lawlor's view that Perullo had "transformed [her] full-time job into a part-time one" and informed her that any further "abuse" of her leave time "[would] result in disciplinary action." Subsequently, in March, 2014, Perullo was verbally reprimanded for distracting and unprofessional conduct in the court room.

In June, 2014, Lawlor convened a disciplinary hearing, after having provided written notice to Perullo in May. At the hearing, Perullo was represented by counsel. The purpose of the hearing was to determine whether cause existed to discipline Perullo based on two grounds. The first was her "continuous abuse of sick and vacation time" despite the February, 2014, written reprimand.³ The second ground stated was Perullo's alleged failure to pay a local business owner for renting a parking space near the Salem District Court House. Following the hearing, Lawlor determined that both grounds provided cause to impose discipline, and he set forth his findings in a letter to Perullo dated June 11, 2014.

In support of the first ground for discipline charged, Lawlor found that between February and June, 2014, there were only three weeks in which Perullo worked a full work week. He outlined Perullo's prior attendance-based discipline, noting in particular how, in February, 2014, he told Perullo that her pattern of sick time abuse could result in further discipline, as well as "removal from the payroll, which is unacceptable for any person, especially one in a senior management position." Lawlor also found that Perullo's "pattern of conduct" had not changed since the February warning, but rather that she had "continue[d] to fail to appear at work." Lawlor further found that Perullo's pattern of conduct "adversely affect[ed] [his] ability to manage this office and this court," and that her "continued absences from work [left them] short-handed." As a result of these findings, Lawlor concluded that Perullo had violated three personnel rules: §§ 16.100.B.1 (failure to comply with reasonable order), 16.100.B.16 (chronic absences in reporting to work), and 16.100.B.22 (conduct that undermines administration of court) of the Manual.

With respect to the second ground for discipline, Lawlor stated in his letter that he learned of the parking space issue in April, 2014, when the business owner contacted Lawlor at the Salem District Court House to express dissatisfaction that one of Lawlor's employees failed to pay for parking at the business owner's establishment. The business owner informed Lawlor that Perullo had agreed to rent the space starting in late 2011 for sixty dollars per month. However, Perullo soon fell behind in her payments, and ignored efforts by the business owner to collect on three months of unpaid rent. Lawlor also stated that he was "loath[ ] to delve into someone's personal issues," but found that Perullo knowingly and voluntarily entered into the parking arrangement in furtherance of her position at the Salem District Court, and then intentionally ignored the business owner and failed to pay for services rendered. Lawlor concluded that this conduct violated four personnel rules: §§ 16.100.B.3 (discourtesy to public), 16.100.B.22 (conduct that undermines administration of court), 16.100.B.23 (conduct that tends to bring court into disrepute), and 16.100.B.24 (conduct unbecoming trial court employee) of the Manual.

Having found that both alleged grounds for discipline were proved, Lawlor considered Perullo's entire disciplinary record to determine the appropriate discipline. Ultimately, he decided to terminate her employment.

Following the recommendation of the trial court's human resources department, the Court Administrator approved Lawlor's decision to remove Perullo.⁴ Pursuant to G. L. c. 211B, § 8 (§ 8 ), and § 16.800 of the Manual, Perullo sought review of Lawlor's decision by the Advisory Committee on Personnel Standards (committee).⁵ After a hearing, the committee affirmed the decision in November, 2014.

Perullo thereafter timely filed her complaint in the nature of certiorari in the Superior Court to challenge the removal decision.⁶ Perullo and the committee filed cross motions for judgment on the pleadings. After hearing, the judge allowed the committee's motion, and entered judgment for the committee. Perullo appealed, and this court allowed Perullo's application for direct appellate review.

Discussion . We review de novo the allowance of a motion for judgment on the pleadings. Champa v. Weston Pub. Schs. , 473 Mass. 86, 90, 39 N.E.3d 435 (2015). Although the record before us does not contain the parties' pleadings in the Superior Court action, it...