Welch v. Contributory Retirement Appeal Bd.

• Decision Date: 26 January 1962
• Parties: Philip P. WELCH v. CONTRIBUTORY RETIREMENT APPEAL BOARD, Medford Contributory Retirement Board and the City of Medford.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 326

180 N.E.2d 326

343 Mass. 502

Philip P. WELCH v. CONTRIBUTORY RETIREMENT APPEAL BOARD, Medford Contributory Retirement Board and the City of Medford.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 9, 1961.

Decided Jan. 26, 1962.

Carl H. Amon, Jr., Boston, for petitioner.

Mark E. Gallagher, Jr., City Solicitor, for respondents.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER and SPIEGEL, JJ.

CUTTER, Justice.

Welch was appointed director of public works in Medford, effective June 6, 1954, pursuant to Medford Rev.Ord. c. 41, § 1, which provides for a 'director of public works who shall exercise the powers of the city manager under * * * [his] direction * * * in the administration and operation of the' highway, water and sewer, and engineering departments 'and in matters involving public works in other departments.' Section 2 provides that the 'director * * * shall be appointed by, and may be removed by the city manager; his appointment shall not be subject to' G.L. c. 31. Medford has a Plan E charter. See G.L. c. 43, § 93 et seq., as amended.

Prior to his employment as director, Welch, a veteran of World War I, had been employed by the Commonwealth, the city of Somerville, and the town of Reading for more than twenty-nine years in employment classified as Group A under G.L. c. 32, § 3(2)(g), as amended through St.1954, c. 445, § 1. ¹ He had been a member of the contributory retirement system within the meaning of G.L. c. 32, § 16, as amended through St.1956, c. 422, § 1. ²

On August 17, 1956, Welch, aged fifty-five, applied to the then city manager, one Shurtleff, for retirement, 'at his own request, with the approval of the retiring authority,' under G.L. c. 32, § 58 (as amended through St.1950, c. 668, § 3) as a 'veteran who has been in the [public] service * * * for a total period of thirty years in the aggregate.' Shurtleff disapproved the request on September 5, 1956. No question based upon this disapproved has been argued. Cf. Murphy v. Boston, 337 Mass. 560, 564-565, 150 N.E.2d 542. Shortly thereafter Shurtleff indicated to Welch his dissatisfaction with Welch's work.

On October 31, 1956, Shurtleff asked for Welch's resignation and notified him that he would be removed on November 19 in the absence of a resignation. On November 19, 1956, Shurtleff notified the city council that Welch was to be removed from his employment, effective at midnight. On November 23, 1956, Welch resubmitted his petition for retirement to the then acting city manager. Shurtleff was then under suspension and was removed as city manager on December 11, 1956. On January 4, 1957, one Kennedy was appointed city manager. He appointed one Ellis as director. Ellis is still serving in that capacity.

On April 29, 1957, Welch wrote to the Medford contributory retirement board asking for a public hearing under G.L. c. 32, § 16(2), as amended. ³ Related provisions of § 16 ⁴ are described in the margin. No hearing before the Medford contributory retirement board ⁵ has been given to Welch. Welch has received no pay since November 19, 1956. Up to that date, he paid to the Medford contributory retirement fund the payments determined in accordance with the applicable statutes. These payments, from June 6, 1954, to November 19, 1956, were accepted and added to the fund theretofore established by Welch from his earlier employment.

On June 14, 1957, Welch claimed an appeal to the contributory retirement appeal board and requested a hearing under c. 32, § 16(4), see footnote 5, supra. The city filed a motion to dismiss the appeal, which was granted by the appeal board on February 2, 1959. The motion was heard on a statement of agreed facts on which the foregoing facts appeared.

Welch then filed this petition under G.L. c. 30A (the State Administrative Procedure Act) for review of the appeal board's action. A judge of the Superior Court ruled that under G.L. c. 43, §§ 104 and 105, Shurtleff 'was within his rights in removing * * * [Welch] on November 19, 1956, and that his employment with * * * Medford terminated on that day.' He further ruled that, if Welch's 'rights were violated[,] his remedy was by a petition of review in the [D]istrict [C]ourt * * * under' G.L. c. 32, § 16(3), see footnote 5, supra. Welch has appealed from a final decree dismissing the petition.

Welch contends that the provisions of c. 32, § 16, are controlling and that, accordingly because of Shurtleff's failure to comply with § 16(2), Welch was not removed on November 19, 1956. The other parties contend that the provisions of G.L. c. 43, §§ 104, 105, and of Medford Rev.Ord. c. 41, § 2, are to be given predominant effect.

General Laws c. 43, § 104, provides, among other things, that the city manager (under the Plan E form of municipal government, see St.1938, c. 378) shall 'supervise the administration of the affairs of the city' and that he 'shall make all appointments and removals in the departments * * * and offices of the city * * * and shall performed such other duties as may be * * * required of him by ordinance.' Section 105 provides in part that '[s]uch officers * * * as the city council, with the advice of the city manager, shall determine are necessary for the proper administration of the departments * * * and offices of the city for whose administration the city manager is responsible shall be appointed, and may be removed, by the city manager.' ⁶

The ordinance states that the director of public works is to 'exercise the powers of the city manager' with respect to certain city departments and to certain matters involving public works. This clearly is an office 'for whose administration the city manager is responsible' within c. 43, § 105. In view of the provision of § 2 of the ordinance that the appointment of the director of public works shall not be subject to G.L. c. 31, we think that Welch was subject to removal at the pleasure of the city manager under c. 43, § 105, unless G.L. c. 32, § 16(2), as amended, see footnote 4, supra, required that the city manager conform to the procedures set out in that section. There is no indication in the record that any official of Medford has given any notice of Welch's removal to the Medford contributory retirement board or any notice to Welch purporting to be pursuant to c. 32, § 16(2), as amended.

In Williams v. City Manager of Haverhill, 330 Mass. 14, 17-19, 110 N.E.2d 851, we decided that a Plan D charter provision, closely resembling the Medford Plan E charter provision found in § 105, controls 'the entire subject of removals of those in the service of the city,' at least in respect of offices not subject to G.L. c. 31. ⁷ We said (p. 18, 110 N.E.2d p. 851), 'Nowhere * * * in the charter where the power of removal is conferred upon the city manager is there * * * any indication that it is to be limited in any way except as to persons in the classified civil service.' It was held that G.L. c. 39, § 8A, inserted by St.1950, c. 132, § 1 (authorizing removals of council appointees for cause after public hearing) had no application to Haverhill's charter (see G.L. c. 43, § 90), under which (pp. 17-18, 110 N.E.2d p. 853) 'full and plenary power to make * * * [certain] appointments and removals * * * ha[d] been conferred upon the city manager in order to secure effective administration of those branches for which the city manager is responsible.' It was pointed out (pp. 18-19, 110 N.E.2d p. 854), 'Nowhere is it * * * stated that the removal must be for cause * * *. The only * * * duty * * * [of] the city manager with reference to [such] removals * * * is to report them to the council. * * * He acquired a general power of removal * * * from the express terms of the * * * charter * * *.' Cf. City Manager of Medford v. Civil Serv. Comm., 329 Mass. 323, 324-329, 108 N.E.2d 526. Cf. also Walsh v. Commissioners of Civil Serv., 300 Mass. 244, 245-247, 15 N.E.2d 218; Essex County Retirement Bd. v. Contributory Retirement Appeal Bd., 242 Mass. 322, 173 N.E.2d 627. ^a

The Williams case thus strongly indicates that the city manager at his pleasure could remove Welch, a key official not protected by civil service. The following considerations lead us to conclude that this power, even in respect of a long term member of a contributory retirement system, is not affected by c. 32, § 16(2), (3), and (4).

(1) In considering the specific charter provisions of c. 43, §§ 104 and 105, together with the general provisions of c. 32, § 16, weight must be given to the principle that 'strong terms are required to show a legislative intent to supersede by a general act a special act which 'may be made in regard to a place, growing out of its peculiar wants, condition, and circumstances.' City charters are essentially [such] special enactments designed to provide for the particular needs of the various cities.' See Haffner v. Director of Pub. Safety of Lawrence, 329 Mass. 709, 714, 110 N.E.2d 369. See also Williams v. City Manager of Haverhill, 330 Mass. 14, 17, 110 N.E.2d 851.

(2) If c. 32, § 16(2), operates as a limitation upon c. 43, § 105, then the local retirement board may reappraise, perhaps long after the event, whether a removal of a principal assistant by a city manager 'was justified.' The plain language of § 105 seems to contemplate giving immediate effect to the removal and complete freedom of action by the city manager. Cf. Regan v. Commissioner of Ins., Mass., 178 N.E.2d 81. ^b Cf. also Davis v. School Committee of Somerville, 307 Mass. 354, 362-363, 30 N.E.2d 401; Cieri v. Commissioner of Ins., Mass., 178 N.E.2d 77. ^c

Even if we were to assume that § 16(2) has application to Welch's removal by the city manager, any review by the local board whether the removal 'was justified' could not be a broad one. It would not be an examination 'de novo' of the propriety of the removal. Cf. a review of a removal for specified causes, as in G.L. c. 71, § 43A (inserted by St.1958, c. 462). Cf....