Smith v. Commissioner of Mental Retardation

• Decision Date: 31 July 1990
• Docket Number: No. 88-P-1197,88-P-1197
• Citation: 28 Mass.App.Ct. 628,554 N.E.2d 1215
• Parties: Anne Marie SMITH v. COMMISSIONER OF MENTAL RETARDATION et al. 1
• Court: Appeals Court of Massachusetts

Page 1215

554 N.E.2d 1215

28 Mass.App.Ct. 628

Anne Marie SMITH v. COMMISSIONER OF MENTAL RETARDATION et al. ¹

No. 88-P-1197.

Appeals Court of Massachusetts,

Hampden.

Argued Feb. 12, 1990.

Decided June 1, 1990.

Further Appellate Review Granted July 31, 1990.

Stephen R. Kaplan, Northhampton, for plaintiff.

Richard M. Brunell, Asst. Atty. Gen., for defendants.

Before ARMSTRONG, CUTTER, and KASS, JJ.

KASS, Justice.

As a provisional employee of the Commonwealth, Anne Marie Smith would not ordinarily have been entitled to a trial-type hearing to challenge her demotion from Supervisor of Individual Service Planning and Coordination to Day Care Services Specialist at the Monson Developmental Center ("Monson"). ² See Rafferty v. Commissioner of Pub. Welfare, 20 Mass.App.Ct. 718, 723-725, 482 N.E.2d 841 (1985). In disciplining Smith, however, the superintendent of Monson, Donald J. Fletcher, cited as cause acts of intentional fabrication and dishonesty by her. The nature of the charge made by Fletcher raises the question whether placing a stigma of dishonest conduct upon a State employee in a manner likely to be disseminated to potential employers induces a requirement of a hearing at which the employee may confront and, with the assistance of counsel, examine her accusers. We think Smith is entitled to such a hearing, and we reverse the judgment.

Judgment was entered below after allowance of the defendants' motion for summary judgment. The motion, when filed, was directed against a first amended complaint, but appears to have been considered in the light of a second amended complaint. See note 6, infra.

On September 11, 1987, Smith had an apparently unpleasant encounter with William Gauthier, the president of Parents and Friends of Monson Developmental Center, Inc. ("Parents and Friends"), a support group for Monson and its residents. ³ She understood Gauthier to say that he was going to have her fired. The next day she sent a letter to Gauthier memorializing their conversation and recounting conversations with others which led her to conclude that persons connected with Parents and Friends were engaged in a campaign against her. Smith expressed particular concern about what her State Representative, Paul E. Caron (11th District, Hampden), had told her concerning a conversation of his with Gauthier about Smith. Things were said, Smith wrote, that could not have been said unless confidential material from her personnel file had been leaked. Specifically, Smith referred to "items ... pertaining to [her] recent illness and hospitalization" contained in a "confidential investigative report."

On the same day that she wrote to Gauthier, September 12, 1987, Smith also fired off a letter to the Commissioner of Mental Retardation, Mary A. McCarthy. The communication to Commissioner McCarthy restated Smith's apprehension that confidential material from her personnel file had been unlawfully disseminated. "The evidence for a [G.L.] c. 66A trespass appears strong," she wrote. Her letter continued: "Since there is a possibility that Mr. Fletcher may not have assured proper safeguards for the files, I have decided not to ask him to investigate himself and instead direct my complaint to you."

Nothing came of the request that the Commissioner herself look into whether material from Smith's files had been improperly leaked. Instead she heard within the week from Fletcher that he was "hereby taking full responsibility for thoroughly investigating this matter." Fletcher assigned the investigation to William Teece, an investigator in the office of internal affairs of the Department of Mental Retardation. There followed memoranda and counter memoranda having to do with such things as who would appear before whom and whether accompanied by counsel. A further effort by Smith to persuade the Commissioner of Mental Retardation that allowing Fletcher to direct the investigation was to let the fox patrol the henhouse was unavailing. There was also an excursion to Superior Court which centered on whether Smith might be attended by counsel at her interview by Teece.

On December 29, 1987, Smith appeared before Teece. That appearance was subject to a protest, lodged in letter form by Smith's lawyer, Mr. Stephen R. Kaplan, that any investigation should follow the relatively elaborate procedures required by 104 Code Mass.Regs. § 2400 (1986). Those procedures involve steps which escalate from informal inquiry to a trial-type hearing before a hearing officer. By way of response to Mr. Kaplan's letter, counsel for the department, Ms. Patricia A. Oney, said the subject of the investigation was Smith's letter to Gauthier but that, "as in all cases where the employee makes a complaint, she is a potential subject of the investigation to the extent that her allegations are false." Teece made a report on January 7, 1988. He had interviewed Gauthier, Leon Burdick, the treasurer of Parents and Friends, Ms. Oney, Fletcher, and Thomas Mineo, the director of personnel at Monson. Remarkably, Teece did not meet or speak with Representative Caron, whom Smith had identified as the principal source of her information. Teece's January 7th memorandum comes to two principal conclusions: (1) Smith's charge "of distribution of information from her personnel file is unfounded" and (2) a finding was not warranted that Smith had intentionally made false allegations against Gauthier and Parents and Friends.

Some six weeks later, under date February 22, 1988, Teece republished, in revised and fleshed out form, his report on the Smith-Gauthier matter. The later report sets forth that the adverse information disseminated by Gauthier related to a triangular woman-man-woman quarrel which occurred on June 25, 1987, and as to which Smith had acted out her side of the triangle in unacceptably public fashion on the Monson campus. ⁴ Teece writes that the incident had been widely gossiped about and no leakage of confidential file fodder was necessary to broadcast it. In his conclusions, Teece takes a stance towards Smith that makes an about face from his earlier report. He writes: "I have concluded that Anne Marie Smith intentionally fabricated her allegation that confidential personnel information had been divulged. I have further concluded that it was Ms. Smith's intent to harm Mr. Gauthier and the Parents and Friends Organization." Teece proceeds to write that "objective evidence" to which he gave "particular credence" was "the testimony of State Representative Paul Caron, especially given the fact that he is a 3rd party and well known supporter of Ms. Smith." As noted above, Teece did not interview Representative Caron. His sources of information about what Representative Caron said were Fletcher and Gauthier. ⁵

On March 28, 1988, Fletcher wrote to Smith. In his letter Fletcher quoted from the Teece report and wrote: "Your dishonesty in this matter has irreparably harmed and inhibited your ability to continue to perform these key management functions. Therefore ... I am removing you from your position...."

1. Was Smith entitled to a hearing in accordance with departmental regulations? By 115 Code Mass.Regs. § 2.03 (1987), the Department of Mental Retardation adopted the regulations of the Department of Mental Health. That achieved a carry-over of an apt and familiar set of rules which, prior to July 1, 1987, pertained to facilities and services for mentally retarded persons when those facilities and services were operated under the jurisdiction of the Department of Mental Health. See St.1986, c. 599, §§ 9 and 62. Under the existing body of regulations, 104 Code Mass.Regs. § 24.00 (1986), dealt with departmental investigations. Section 24.01(1) prescribes a policy to investigate "first, in the event of a medicolegal death of a Department client; second, whenever there is alleged to have occurred an incident which is dangerous, illegal, or inhumane; third, whenever there is alleged to exist a condition which is dangerous, illegal or inhumane; and fourth, in any other case where an investigation would be in the public interest, as determined by the person in charge or by the Commissioner or his designee." The only one of these categories which the plaintiff can hope to embrace is "an incident which is ... illegal." Positioned as it is between the words "dangerous" and "inhumane" it is difficult to avoid the inference that "illegal" refers to an incident involving clients of the Department of Mental Retardation, and perhaps the interaction of clients and employees, but not to personnel disputes unrelated to client care.

The impression that the design of § 24.00 is to provide a procedure for investigating and dealing with complaints by or on behalf of clients of the Department of Mental Retardation is reinforced by other provisions in § 24.00. For example: § 24.03(1) provides that a complaint shall ordinarily be initiated by the person in charge (a defined term) whenever a "medicolegal death" or an incident or condition occurs or is alleged to have occurred, or when initiation of a complaint would be "in the best interests of the client, the Department, or the public"; § 24.03(2) imposes on employees the obligation to file a complaint if an employee has reason to believe that an "incident" has occurred; under the same subsection, employees are directed to assist clients in making complaints; § 24.05(6) requires that copies of reports of action taken are to be sent to the Human Rights Committee; § 24.06(1), relating to rights of an employee under a collective bargaining agreement, provides that invocation of collective bargaining grievance procedures "shall not alter the Department's responsibility under these regulations to respond to, investigate and make decisions concerning complaints and appeals initiated by clients."

We deduce from these excerpts that the purpose of 104 Code Mass.Regs. § 24.00, Department Investigations, is directed to the interests of...