Perullo v. Advisory Committee on Personnel Standards , 476 Mass. 829 ( 2017 )

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SJC-12095
RENEE PERULLO vs. ADVISORY COMMITTEE ON PERSONNEL STANDARDS.
Suffolk. January 9, 2017. - April 24, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.1
Public Employment, Removal. Trial Court. District Court. Due
Process of Law, Employment, Termination of employment.
Civil action commenced in the Superior Court Department on
January 12, 2015.
The case was heard by Elizabeth M. Fahey, J., on motions
for judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
John F. Tocci (Cary P. Gianoulis also present) for the
plaintiff.
Suleyken D. Walker, Assistant Attorney General, for the
defendant.
BOTSFORD, J. In 2014, the clerk-magistrate of the Salem
Division of the District Court Department (Salem District Court)
1
Justice Botsford participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
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
2
The background facts stated here are taken from the
administrative record filed by the defendant in the Superior
Court as its answer to Renee Perullo's complaint in the nature
of certiorari.
3
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
4
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
5
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
6
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
3
Unfortunately, the record makes no effort to distinguish
between Perullo's use of sick time and her use of vacation time.
However, we do not think that this distinction would alter our
analysis in this case.
7
"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
8
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
4
Pursuant to the Massachusetts Trial Court Personnel
Policies and Procedures Manual (Jan. 7, 2013) (Manual), the
decision of Clerk-Magistrate Brian Lawlor, as Perullo's
appointing authority, to remove Perullo was subject to approval
by the Court Administrator after a review and recommendation of
the trial court's human resources department. See § 16.700.B of
the Manual.
5
The Advisory Committee on Personnel Standards (committee)
is established pursuant to G. L. c. 211B, § 8 (§ 8). Its
members are the Chief Justice of the Trial Court, the Chief
Justices of the seven trial court departments, the Court
Administrator, the Commissioner of Probation, a clerk of the
Superior Court, a clerk of the District Court, and a register of
probate. See G. L. c. 211B, § 8, first par.
9
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 (2015). Although the record before us does not
contain the parties' pleadings in the Superior Court action, it
appears that Perullo advanced essentially the same arguments in
the Superior Court as she does on appeal. In particular,
Perullo's appeal raises three issues: (1) whether the removal
of an assistant clerk-magistrate comes within the scope of § 8;
(2) whether the decision to remove Perullo was arbitrary or
capricious, and therefore violated § 8; and (3) whether Perullo
was afforded adequate procedural protections such that the
constitutional guarantee of due process was satisfied. We
address each in turn.
1. The scope of G. L. c. 211B, § 8. Section 8, as amended
through St. 2011, c. 93, § 52, establishes and defines the
6
Perullo appropriately named the committee as the defendant
because its affirmance of Lawlor's decision was the final
decision of the administrative process, but there is no dispute
that the focus of review in this action in the nature of
certiorari is Lawlor's decision to remove Perullo.
10
duties of the committee (see note 5, supra), but it also
concerns the duty of the Court Administrator to establish
employment standards governing certain trial court employees,
and defines the standard and procedures for the removal of the
employees covered by that statute. Thus, § 8 provides in part:
"The committee shall advise the court administrator
who shall establish and promulgate standards for the
appointment, performance, promotion, continuing education
and removal of all personnel within the trial court, except
judges, clerks and registers of probate . . . .
"Subject to the terms of applicable collective
bargaining agreements, any officer or employee whose
appointment is subject to the provisions of this section
may be removed by the appointing authority, in accordance
with the standards promulgated by the committee; provided,
however, that any such removal is not for arbitrary or
capricious reasons and, if the employee so requests, is
approved by the [c]ommittee. Every removal of an officer
or employee whose appointment was subject to the provisions
of this section shall be reviewed by the committee, and no
such removal shall be final until approved by the
committee" (emphases added).
Perullo argues that she does not come within the scope of
§ 8, because "judges, clerks and registers of probate" are
excepted from the section's coverage and, as an assistant clerk-
magistrate, she qualifies as a "clerk" within the exception.
The argument fails.
Section 8 exempts from its scope "clerks." G. L. c. 211B,
§ 8. It never mentions "assistant clerks." See id. Clerks and
assistant clerks are two distinct positions, as related sections
of c. 211B make clear. See Commissioners of the Bristol County
11
Mosquito Control Dist. v. State Reclamation & Mosquito Control
Bd., 466 Mass. 523, 528–529 (2013), and cases cited (court
should interpret section of particular chapter not in isolation,
but rather "in relation to the over-all framework" of chapter).
In particular, G. L. c. 211B, § 10B, discusses the standards
applicable to the "[a]ppointment of assistant clerks." This
section vests "clerks" with the "exclusive authority" to appoint
"assistant clerks" and describes the procedure that "clerks"
must follow to make such appointments. It is difficult to
conceive of a statute that more clearly distinguishes between
"clerks" and "assistant clerks."7 Yet, Perullo contends that the
Legislature, just sections earlier in the same chapter of the
General Laws, used the term "clerks" to denote both "clerks" and
"assistant clerks." When statutes relate to the same subject
matter, we must read them "as a harmonious whole and avoid
absurd results" (citation omitted). Connors v. Annino, 460
Mass. 790, 796 (2011). We therefore reject Perullo's argument
because it is clear to us that, in § 8, the Legislature has
purposefully distinguished between "clerks" and "assistant
clerks."
7
See G. L. c. 218, §§ 1 (defining "clerks" as distinct from
"assistant clerks"), 10 (providing that clerk of District Court
"may . . . appoint one or more assistant clerks").
12
2. Certiorari review. In an action in the nature of
certiorari, "the standard of review may vary according to the
nature of the action for which review is sought." Forsyth Sch.
for Dental Hygienists v. Board of Registration in Dentistry, 404
Mass. 211, 217 (1989). Under § 8, an assistant clerk-magistrate
such as Perullo may be removed from her employment by her
appointing authority -- here, Lawlor as the clerk-magistrate of
the Salem District Court -– as long as the removal (1) was not
for "arbitrary or capricious reasons," (2) followed the
personnel standards promulgated pursuant to that statute, and
(3) was approved by the committee. See G. L. c. 211B, § 8,
fifth par.8 Perullo does not contest the second or third of
these rationales -– that is, she does not argue that her
termination violated the governing personnel standards,9 or that
Lawlor's decision lacked approval by the committee. At bottom,
therefore, Perullo's appeal centers on the claim that Lawlor's
decision was arbitrary or capricious.10 "A decision is arbitrary
8
The relevant language of § 8, fifth par., is quoted in the
text, supra.
9
To the contrary, she argues that the committee's
standards, although followed, were "clearly deficient" under a
due process lens. We discuss this argument, infra.
10
To the extent that Perullo suggests that a substantial
evidence standard should govern, the plain language of the
statute forecloses that argument. As the language of § 8 quoted
previously in the text demonstrates, a covered employee may be
13
or capricious . . . where it 'lacks any rational explanation
that reasonable persons might support.'"11 Frawley v. Police
Comm'r of Cambridge, 473 Mass. 716, 729 (2016), quoting Doe v.
Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 (2002). We
consider Lawlor's decision to remove Perullo under this
standard.
Lawlor's decision was based on his findings and conclusions
about Perullo's excessive leave-taking as a management employee,
as well as her inappropriate conduct in failing to pay for her
rented parking space near the court house. Based on these two
infractions, Lawlor considered the whole of Perullo's
disciplinary record and terminated her. Perullo offers
essentially three reasons why this was arbitrary or capricious:
(1) her time off was always approved by her supervisors,
removed so long as the removal comports with the committee's
standards, is approved by the committee, and is "not for
arbitrary or capricious reasons." G. L. c. 211B, § 8, fifth
par. Accordingly, the statute, in an action in the nature of
certiorari such as this one, imposes an arbitrary or capricious
standard of review, not a substantial evidence standard.
11
Court decisions reflect that the phrases "arbitrary and
capricious" and "arbitrary or capricious" are used essentially
interchangeably, and typically denote the same standard. See,
e.g., Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 728–
729 (2016) (using "and" and "or" formulations interchangeably);
Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 5–6
(2002) (same); T.D.J. Dev. Corp. v. Conservation Comm'n of N.
Andover, 36 Mass. App. Ct. 124, 128 (1994) (same).
14
including, implicitly, Lawlor,12 and therefore cannot constitute
"abuse"; (2) the facts surrounding the parking space dispute
were unverified and, in any event, were an inappropriate basis
for imposing discipline; and (3) Lawlor imposed a new punishment
for old disciplinary infractions. None of these arguments
succeeds.
As a general matter, Perullo's arguments misapprehend the
considerable managerial discretion that a District Court clerk-
magistrate possesses. A clerk has "exclusive authority" to
appoint assistant clerks. G. L. c. 211B, § 10B. As the
appointing authority, the clerk also is vested with the power to
remove assistant clerks, within the bounds of § 8, fifth par.
In this regard, it is important to recognize the Legislature's
decision, in 2011, to amend § 8 and replace what was a "for
cause" termination standard with the current one, which allows
termination for any reason that is not arbitrary or capricious,
so long as the committee's standards are followed. Compare St.
1978, c. 478, § 110, inserting G. L. c. 211B, § 8 ("An officer
12
More specifically, Perullo argues that, following the
February, 2014, memorandum, she requested permission to take
time off from her immediate supervisor, the first assistant
clerk-magistrate, who approved those requests. Further, she
argues that Lawlor was responsible for reviewing payroll
records, including time off, for all court staff on a biweekly
basis, and that by failing to object to Perullo taking any time
off based on his regular review of payroll records, Lawlor
"tacitly approved" her leave time.
15
or employee whose appointment is subject to the provisions of
this section may be removed for cause by the appointment
authority" [emphasis added]), and St. 1992, c. 379, § 76,
amending G. L. c. 211B, § 8 (retaining "for cause" standard),
with St. 2011, c. 93, § 52, amending G. L. c. 211B, § 8 ("[A]ny
officer or employee whose appointment is subject to the
provisions of this section may be removed by the appointing
authority . . . provided, however, that any such removal is not
for arbitrary or capricious reasons" [emphasis added]).
Considering Lawlor's first ground for removal, Perullo's
alleged abuse of leave time, we are not persuaded by Perullo's
contention that a supervisor's approval of her requests to take
time off forecloses the possibility that she was misusing her
leave time, at least not in the particular circumstances of this
case. We recognize that, when Lawlor reprimanded Perullo in
February, 2014, for abuse of leave time and when he terminated
her in June, 2014, she maintained a positive balance of leave
time; we of course also recognize that trial court employees
generally are entitled to take the leave time that they accrue.
However, three interrelated factors influence our analysis in
this case.
First, a significant consideration here is the fact that
Perullo was a "managerial" employee. See § 2.000 of the Manual.
Managerial employees are "expected to perform their
16
responsibilities at a high level of competence." See § 16.300
of the Manual. One of the specific responsibilities of a
managerial employee is to "work the hours needed or required by
the operational needs of a particular court . . . providing
reasonable notice is given." See § 8.100 of the Manual. The
reason for that responsibility is that the work of a managerial
employee sometimes is defined not "in terms of hours, days or
weeks," but rather by the demands of "the orderly administration
of justice." See id. To this point, Lawlor specifically
informed Perullo, in February, 2014, that her pattern of
absences was "unacceptable for any person, especially one in a
senior management position," and that any further issues with
leave time would result in discipline. Yet, over the next
fifteen weeks, Perullo worked a full work week only three
times.13 Regardless of whether these absences were approved by a
supervisor on a case-by-case basis, Perullo had ample notice
that engaging in such a pattern of behavior was virtually
certain to result in further discipline by Lawlor because it
13
The record does not specify precisely when Perullo took
time off in the other twelve weeks. However, Lawlor did state
that, in that span, Perullo took over forty-seven hours of time
off, in addition to using all five of her personal days.
Roughly, that averages out to Perullo being out of the office
for about one working day for twelve out of fifteen weeks
following Lawlor's February, 2014, warning.
17
failed to meet his -- and, importantly, the Manual's --
expectations for a "managerial" employee.
Second, it was reasonable for Lawlor to determine that
Perullo's habitual absences, effectuated by drawing down her
leave time as soon as it accrued, constituted "chronic
absences," see § 16.100.B.16 of the Manual, that disrupted the
court's work,14 see § 16.100.B.22 of the Manual (permitting
discipline for "conduct that undermines the administration of
the court"). It is well-documented that a clerk-magistrate like
Lawlor "performs many roles that are crucial to the fair and
efficient administration of justice in a District Court."
Matter of Powers, 465 Mass. 63, 66 (2013). See id. at 66-68
(discussing duties of clerk-magistrate). Most pertinent here,
the clerk-magistrate is part of the over-all "senior management
team" in each court house, "working collaboratively to ensure
the fair, effective, and efficient administration of justice."
Id. at 68. That role gives important texture to Lawlor's
admonition to Perullo, in February, 2014, that he was unable to
"ensure the efficient administration of this office if
individuals at all levels did not appear at work as required,
14
Perullo mentions in passing that some of her days off may
have been related to Ménière's Disease. To the extent that she
may believe she was wrongfully terminated on the basis of that
ailment, such an argument is not developed in the record before
this court and we do not decide the question.
18
and that adversely impacts [his] ability to run [his] office."
Perullo, in response to this warning, utterly failed to change
her behavior. Perullo might stand on different footing if she
had not already been reprimanded repeatedly for exhausting her
leave time. But Perullo's disciplinary history lends further
credence to Lawlor's position that her "chronic absences"
represented a managerial problem in terms of his ability to
staff the court house consistently. Given that history, Lawlor
was not obligated to stand idly by as Perullo continued to use
her leave time as soon as it accrued.
Third, even assuming for the sake of argument that
Perullo's absences by themselves did not constitute abuse of the
trial court's leave policies, she had agreed with Lawlor, in
2011 and again in 2014, to cease her "pattern of abuse" of leave
time -- in other words, to stop using her leave time as soon as
it accrued. It certainly was not unreasonable for Lawlor to
conclude, based on Perullo's post-February, 2014, conduct, that
she ignored this agreement, thereby violating the trial court
policy permitting discipline for "failure or refusal to comply
with a reasonable order." See § 16.100.B.1 of the Manual.
It also was not irrational or unreasonable for Lawlor to
treat the parking space dispute as a basis of his decision. The
personnel standards permit discipline for discourtesy to the
public, see § 16.100.B.3 of the Manual; conduct that tends to
19
bring the court into disrepute, see § 16.100.B.23 of the Manual;
and conduct unbecoming a trial court employee, see § 16.100.B.24
of the Manual. Because Lawlor received a telephone call at his
office regarding Perullo's failure to pay for the parking space,
it is evident both that the business owner knew that Perullo was
a court employee and that Perullo's use of the parking space was
connected to her court job. Lawlor rationally could conclude
that this conduct constituted a violation of any of the policies
mentioned above. If Perullo were starting from a clean
disciplinary slate, the parking space dispute, perhaps, might be
more questionable as a basis for discipline. But given
Perullo's history of inappropriate conduct, including very
public, work-related confrontations with and outbursts about
others, Lawlor acted well within his discretion to investigate
the parking space dispute and, after hearing Perullo's response,
to treat the parking dispute as a cause for discipline.
Finally, after concluding that Perullo's absenteeism and
the parking space dispute warranted discipline, it was neither
arbitrary nor capricious for Lawlor to consider Perullo's entire
disciplinary record when determining the appropriate sanction.
Perullo's argument would have more force if the "for cause"
standard for removal of a trial court employee remained in
place, or if Lawlor were still obligated to use progressive
discipline for a management employee like Perullo. But, as
20
discussed, the "for cause" regime has been replaced by the
"arbitrary or capricious" standard currently prescribed by § 8,
and progressive discipline does not apply to management
employees like Perullo. See §§ 16.400 and 16.500 of the Manual.
In these circumstances, we conclude that Lawlor acted well
within his broad managerial discretion to factor the history of
Perullo's prior disciplinary offenses into his sanction and to
determine that, given Perullo's long disciplinary record, the
two new infractions constituted the proverbial "last straw" that
made removal the appropriate level of discipline.
3. Due process. Finally, Perullo argues that the process
by which she was terminated was procedurally defective and
violated the constitutional guarantee of due process of law.15
"The threshold issue in a procedural due process action is
whether the plaintiff had a constitutionally protected property
interest at stake." See Mard v. Amherst, 350 F.3d 184, 188 (1st
Cir. 2003), citing Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 538-541 (1985). Such a property interest may derive
from existing rules or independent sources, such as State law.
15
Perullo does not specify whether she relies on the United
States Constitution or the Massachusetts Declaration of Rights.
However, "[t]he protection afforded property interests by both
provisions is subject to the same analysis." School Comm. of
Hatfield v. Board of Educ., 372 Mass. 513, 515 n.2 (1977).
21
Mard, supra at 189, citing Board of Regents v. Roth, 408 U.S.
564, 577 (1972).
As discussed, § 8 permitted Perullo's removal for any
reason that was not arbitrary or capricious, provided she
received the protections provided by applicable statutes and
rules. Thus, assuming for the sake of argument that Perullo had
a constitutionally protected property interest in continued
employment, due process was satisfied by compliance with § 8 and
the personnel standards and policies promulgated by the Court
Administrator and the committee, which included an opportunity
for hearing before any discipline was imposed. See § 16.500 of
the Manual. See also Roth, 408 U.S. at 577 (property interests
"are created and their dimensions are defined by . . . an
independent source such as state law").
Perullo has demonstrated no deviation from the governing
statute or rules. Lawlor provided Perullo with written notice
of the disciplinary hearing that resulted in her termination and
the grounds that he alleged warranted discipline, along with the
ability to appear with counsel at that hearing and to respond to
the allegations orally or in writing. Perullo took advantage of
this opportunity and both attended and participated in the
hearing with her counsel. After the hearing's conclusion,
Lawlor set forth in detail, in a written letter of decision, his
findings and reasons for the discipline he ultimately imposed.
22
Consistent with the governing policies, the trial court's human
resources department reviewed Lawlor's decision, and the court
administrator approved it. Finally, as contemplated by § 8, the
committee held a hearing that Perullo attended and at which her
counsel presented arguments, before it affirmed the decision.
These steps fulfilled the procedural protections promised by the
relevant statute and rules, and in any event satisfied the
demands of due process by providing Perullo with a full and fair
opportunity to be heard. See Matter of Powers, 465 Mass. at 80-
81 (where clerk-magistrate had constitutionally protected
interest in his position, due process was satisfied when he
received full and fair hearing before any meaningful deprivation
occurred).
Perullo also suggests that Lawlor was unfairly biased
against her based, in part, on his position as investigator and
adjudicator regarding the parking space dispute. Both the
Unites States Supreme Court and this court have rejected the
notion that it necessarily violates due process to combine
adjudicatory and investigative functions. See D'Amour v. Board
of Registration in Dentistry, 409 Mass. 572, 580 (1991), and
cases cited. More to the point, Lawlor, far from being biased
against Perullo, allowed her several opportunities to correct
her behavior before deciding to remove her. Accordingly,
"[t]here has been no additional showing of actual bias to
23
support a claim of lack of impartiality." Harris v. Board of
Trustees of State Colleges, 405 Mass. 515, 522 (1989).
Similarly, we reject Perullo's contention that the five-
month delay between Lawlor's decision to terminate her and the
committee's hearing was so untimely that it created an
independent due process violation. We recognize that five
months is a significant period of time to wait for a
posttermination hearing. No explanation for this delay is
apparent on the record, and the committee does not offer one in
its brief. Although it would have been preferable for the
committee to have held its hearing and made its decision on a
more expedited basis, longer delays have been found to satisfy
the demands of due process, and Perullo has not demonstrated any
specific reason why the passage of time here resulted in a
constitutional violation. See Loudermill, 470 U.S. at 547
(nine-month delay, without more, not unconstitutional).
Conclusion. For the reasons discussed, the Superior Court
judgment is affirmed.
So ordered.