Service Employees International Union, Local 509 v. Department of Mental Health

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SJC-11544

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs.
DEPARTMENT OF MENTAL HEALTH.

Suffolk. April 7, 2014. - August 15, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1

Privatization Act. Commissioner of Mental Health. Auditor.
Declaratory Relief. Practice, Civil, Declaratory
proceeding, Standing, Parties, Failure to join party.

Civil action commenced in the Superior Court Department on
February 15, 2012.

The case was heard by Merita A. Hopkins, J., on a motion
for judgment on the pleadings.

The Supreme Judicial Court granted an application for
direct appellate review.

Alfred Gordon O'Connell for the plaintiff.
Jo Ann Shotwell Kaplan, Assistant Attorney General, for the
defendant.
Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-
CIO, amicus curiae, submitted a brief.
Gerald A. McDonough, for the Auditor of the Commonwealth,
amicus curiae, submitted a brief.

1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
 2

LENK, J. The plaintiff, Service Employees International

Union, Local 509 (union), appeals from an order of a Superior

Court judge dismissing its complaint for declaratory judgment

pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint,

the union alleged that the Department of Mental Health (DMH)

violated the Massachusetts privatization statute, G. L. c. 7,

§§ 52-55 (Pacheco Law), by entering into contracts with private

entities to obtain services substantially similar to those

performed by members of the union, but failing to comply with

relevant statutory obligations. DMH filed an answer as well as

a motion for judgment on the pleadings pursuant to Mass. R. Civ.

P. 12 (c), 365 Mass. 754 (1974). After a hearing, the judge

granted DMH's motion, which she treated as a motion to dismiss

for lack of subject matter jurisdiction under Mass. R. Civ. P.

12 (b) (1), 365 Mass. 754 (1974). The judge determined that the

union lacked both direct and associational standing to seek

declaratory relief and, additionally, that the union's failure

to join necessary parties constituted a separate jurisdictional

bar requiring dismissal. The judge did not err in declining to

consider the union's complaint on the basis of its failure to

name all necessary parties. However, because we conclude that

the union has direct standing to seek a declaratory judgment

under G. L. c. 231A that would invalidate the contracts at
 3

issue, we remand the case to the Superior Court for the limited

purpose of allowing the union to seek leave to amend its

complaint by adding all necessary parties. An order of

dismissal shall enter if the union does not take such action

within thirty days of the issuance of the rescript in this case.

1. Background. The following facts are taken from the

union's complaint. For over a decade, DMH, which provides

mental health services to clients throughout the Commonwealth,

has employed case managers who are members of the union. Case

managers are responsible for conducting initial need

assessments, developing individualized service plans, and

maintaining ongoing client contact and advocacy. In late 2008

or early 2009, DMH entered into contracts with private entities

to initiate a new program, Community Based Flexible Supports

(CBFS). CBFS services, which were intended to facilitate more

personalized client assistance, overlapped in certain respects

with services previously provided by DMH case managers.2

2
The Department of Mental Health (DMH) has described
Community Based Flexible Supports (CBFS) services as including
"interventions and supports that manage psychiatric symptoms in
the community, restore or maintain daily living skills, promote
wellness and the management of medical conditions and assist
clients to restore or maintain and use their strengths and
skills to undertake employment. . . . CBFS contractors are
responsible for: client screenings and enrollment; assessments
and integrated treatment planning; quality and utilization
management; data collection and reporting; service documentation
and discharge planning."
 4

DMH concluded that the contracts into which it sought to

enter did not constitute "privatization contracts" within the

meaning of G. L. c. 7, § 53,3 and that it was therefore not

subject to the terms of the Pacheco Law. For this reason,

throughout the contracting process, DMH did not comply with any

of the requirements enumerated in G. L. c. 7, §§ 52-55,

discussed in more detail below, nor did it notify the union or

the Auditor of the Commonwealth that it had entered into such

contracts. During fiscal year 2009, approximately one hundred

case managers, all members of the union, were laid off. The

union alleges that these layoffs resulted from implementation of

DMH's CBFS contracts because the services provided by private

3
General Laws c. 7, § 53, defines a "privatization
contract" as "an agreement or combination or series of
agreements by which a non-governmental person or entity agrees
with an agency to provide services, valued at $500,000 . . .
which are substantially similar to and in lieu of, services
theretofore provided, in whole or in part, by regular employees
of an agency." The statute further provides that the value of
applicable contracts will increase as of January 1 each year in
order to reflect the consumer price index. Id. As of January
1, 2014, only contracts valued at $543,442 or more were subject
to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55.
See http://www.mass.gov/auditor/information-and-resources/for-
public-agencies/the-commonwealths-privatization-law-.html (last
viewed Aug. 12, 2014). While the record does not reflect the
value of the contracts at issue in the present case, DMH has
maintained that the Pacheco Law was inapplicable only because
CBFS services, in its view, were distinct from those offered by
case managers, not because the contract price was below the
established minimum amount.
 5

entities were substantially similar to those previously offered

by the case managers.4

In early 2009, the union notified the Auditor, who is

endowed by G. L. c. 7, § 55, with a "broad grant of power" to

review all privatization contracts for compliance with the

Pacheco Law, Massachusetts Bay Transp. Auth. v. Auditor of the

Commonwealth, 430 Mass. 783, 791 (2000) (MBTA), that DMH had

declined to follow the terms of the Pacheco Law despite having

contracted with private entities in order to implement the CBFS

program. On September 15, 2010, after soliciting information

from DMH about the contracts at issue, the general counsel for

the Auditor issued a memorandum to both parties in which he

concluded that the contracts in question constituted

privatization contracts under the Pacheco Law and that,

accordingly, DMH had erred in declining to comply with the

Pacheco Law's requirements.5 Counsel forwarded this memorandum

to the office of the Attorney General "to take whatever

4
In its complaint, Service Employees International Union,
Local 509 (union) alleged that case managers lost their jobs as
a direct result of DMH's contractual activities. We take no
view as to whether the layoffs in fact resulted from the
contracts into which DMH entered, or, indeed, whether those
contracts constituted "privatization contracts" within the
meaning of G. L. c. 7, § 53.
5
The memorandum states that "the facts in general and the
statistics in particular indicate that at least a portion of
public services was moved from state employees to private
contractors without following the provisions set forth in G. L.
c. 7, section 52-57."
 6

steps . . . are appropriate." The Attorney General took no

action as a result of the Auditor's findings. Following the

issuance of the Auditor's report, DMH has not taken steps to

comply with the terms of the Pacheco Law in connection with its

implementation of the CBFS program, and has not reinstated the

case managers who lost their jobs.

On February 15, 2012, the union filed a complaint in the

Superior Court seeking a declaratory judgment pursuant to G. L.

c. 231A, §§ 1, 2, and 5. The complaint alleged that DMH had

violated the Pacheco Law by entering into contracts with private

entities without adhering to the requirements set forth in G. L.

c. 7, §§ 52-55, and requested a declaration that the contracts

at issue are invalid, as well as equitable relief including

monetary damages and reinstatement of the case managers who were

laid off. In its answer, DMH averred that there was no

violation because the provisions of the Pacheco Law were not

applicable to the CBFS contracts.

After a hearing, the judge allowed DMH's motion for

judgment on the pleadings, which consisted only of the union's

complaint and DMH's answer. She determined that the union

lacked both direct and associational standing to pursue its

claim, concluding that, where an agency "believes that the law

is not applicable in a particular situation," it owes no duty to

an employee organization or its members. The judge also
 7

concluded that the Superior Court lacked jurisdiction because

the union had failed to join necessary parties to the action

pursuant to G. L. c. 231A, § 8, and Mass. R. Civ. P. 19, 365

Mass. 765 (1974). We granted the union's petition for direct

appellate review.

2. Discussion. We are asked to determine whether the

union has standing to seek declaratory relief where DMH did not

comply with the provisions of the Pacheco Law, given its

unilateral determination that the law was inapplicable to its

proposed contracts with outside vendors. According to the

union, DMH breached its statutory duties when it opted not to

follow the procedures set forth in the Pacheco Law, thereby

preventing the union from protecting the interests and

employment rights of its membership. This inability to fulfill

its core mission, the union argues, constituted a legally

cognizable injury sufficient to confer direct standing for the

purposes of G. L. c. 231A.

DMH maintains that the Pacheco Law provides no benefits to

the union itself, as distinct from its members, and that the

union's rights under the Pacheco Law exist solely to assist

State employees. Therefore, DMH contends, it owes no duty to

the union under the Pacheco Law, and the union has no standing

to seek declaratory relief. In a related vein, DMH argues that

the union has suffered no legally cognizable injury that could
 8

serve as a predicate for direct standing. Because, on this

view, any statutory obligations DMH might owe the union inure

only to the benefit of DMH employees, any injuries occasioned by

a violation of those obligations would harm only the union's

members and not the union itself. In any event, such injuries

would lie outside the Pacheco Law's zone of interest.

As an initial matter and before turning to the merits of

this dispute, it seems plain that the Pacheco Law as written

does not contemplate the situation presented here. The Pacheco

Law establishes "[p]rocedures that agencies must follow when

beginning the bidding process for and entering into a

privatization contract." MBTA, supra at 786. While G. L. c. 7,

§ 53, defines which contracts are subject to those enumerated

procedures, the Pacheco Law provides no means by which to

resolve questions as to whether a particular proposed contract

with a private entity constitutes a "privatization contract"

within the meaning of G. L. c. 7, § 53. Otherwise put, there is

no statutory provision addressing the procedures to follow when

an agency makes a unilateral decision that it need not comply

with the requirements of the Pacheco Law.

Nor did our previous analysis of the Pacheco Law anticipate

such a situation. See MBTA, supra. In that case, a public

agency sought to privatize certain services and presented its

proposed contract to the Auditor. The Auditor objected,
 9

concluding that the agency had not sufficiently complied with

the terms of the Pacheco Law and that its contracts therefore

were invalid. Id. at 784-785. The agency sought review

pursuant to G. L. c. 249, § 4, based on asserted errors in the

Auditor's determination. MBTA, supra at 790. Importantly,

neither party disputed the applicability of the Pacheco Law.

The agency submitted a draft contract as contemplated by G. L.

c. 7, § 54, and the Auditor reviewed that draft in accordance

with G. L. c. 7, § 55. MBTA, supra at 784-785. In our review,

we asked only whether the Auditor had erred in executing his

statutory duties.6 Id. at 791. Here, on the other hand, we must

determine the proper means by which parties may resolve the

preliminary question, not expressly contemplated by the

Legislature, whether the Pacheco Law applies to certain

contracts such that an agency must satisfy its requirements.

With these considerations in mind, we first address whether

the union has standing to contest DMH's determination that its

proposed contracts fell outside the ambit of the Pacheco Law by

6
Although G. L. c. 7, §§ 52-55, does not explicitly provide
for the judicial review of a determination made by the Auditor,
in Massachusetts Bay Transp. Auth. v. Auditor of the
Commonwealth, 430 Mass. 783, 791 (2000) (MBTA), we considered
whether the Auditor "substantially erred in a way that
materially affected the rights of the parties." See G. L.
c. 249, § 4; Carney v. Springfield, 403 Mass. 604, 605 (1988),
citing Murray v. Second Dist. Court of E. Middlesex, 389 Mass.
508, 511 (1983). Here, however, we are not asked to assess the
substantive merits of a decision made by the Auditor, and need
not further consider the scope of such review.
 10

seeking declaratory relief. We then turn to the union's alleged

failure to join all necessary parties to its complaint.

a. Standing. The declaratory judgment statute, G. L.

c. 231A, "may be used in the superior court to enjoin and to

obtain a declaration of the legality of the administrative

practices and procedures of any municipal, county, or state

agency . . . ." G. L. c. 231A, § 2. A party has standing

pursuant to G. L. c. 231A where the defendant has "violated some

duty owed to the plaintiff[s]," Enos v. Secretary of Envtl.

Affairs, 432 Mass. 132, 135 (2000) (Enos), quoting Penal Insts.

Comm'r for Suffolk County v. Commissioner of Correction, 382

Mass. 527, 532 (1981), and where the plaintiffs "can allege an

injury within the area of concern of the statute or regulatory

scheme." Enos, supra, quoting Massachusetts Ass'n of Indep.

Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass.

290, 293 (1977).7 In assessing whether a party may seek

declaratory relief, we have considered the text and purpose of

the relevant statute and the nature of the administrative scheme

it sets forth, the availability of other remedies for the

plaintiffs, and any adverse consequences that might follow

should standing be recognized. Enos, supra at 135-136.

7
General Laws c. 231A does not provide an independent basis
for standing. See Enos v. Secretary of Envtl. Affairs, 432
Mass. 132, 135 (2000), citing Pratt v. Boston, 396 Mass. 37, 42-
43 (1985).
 11

The notion of standing is an "elastic concept[]" whose

meaning depends on the particular parties at issue, id. at 135,

and "standing requirements should be liberally construed" in

declaratory judgment proceedings, Home Bldrs. Ass'n of Cape Cod,

Inc. v. Cape Cod Comm'n, 441 Mass. 724, 733 (2004). We take as

true all facts alleged in the union's complaint. See Warth v.

Seldin, 422 U.S. 490, 501 (1975) (when considering motion to

dismiss for lack of standing, reviewing court must accept as

true all material allegations in complaint); Iannacchino v. Ford

Motor Co., 451 Mass. 623, 636 (2008); Barbara F. v. Bristol Div.

of the Juvenile Court Dept., 432 Mass. 1024, 1025 (2000) (court

construed all allegations as true in determining whether

plaintiff had standing).

i. Text and purpose of the Pacheco Law and its

administrative scheme. General Laws c. 7, §§ 52-55, was enacted

in 1993, over the veto of Governor William Weld, based on the

Legislature's findings that "using private contractors to

provide public services formerly provided by state employees

does not always promote the public interest." G. L. c. 7, § 52.

See MBTA, supra at 787, quoting Senate Committee on Ways and

Means, Fiscal Year 1994 Budget Recommendations 2-21 (June 1993)

(noting that "some privatization has indeed come at the

citizens' expense"). Accordingly, "[t]o ensure that citizens of

the commonwealth receive high quality public services at low
 12

cost, with due regard for the taxpayers of the commonwealth and

the needs of public and private workers," the Pacheco Law

permits State agencies to enter into privatization contracts

only after satisfying certain prerequisites. See MBTA, supra at

785, quoting G. L. c. 7, § 52.

General Laws c. 7, § 54, sets forth the procedures an

agency is obliged to follow when it seeks to enter into a

"privatization contract" as defined in G. L. c. 7, § 53. The

agency must, among other things, (1) prepare a written statement

of the services to be performed by private entities; (2) prepare

a written estimate of the cost of those services as performed by

State employees in the most cost-efficient manner; (3) allow

"any relevant employee organization" the opportunity to propose

amendments to collective bargaining agreements to lower the

estimated cost of State employees performing the services; and

(4) consult with any such organization and provide information

designed to assist State employees in proposing a bid to keep

the services in house. G. L. c. 7, § 54.8 These requirements

8
General Laws c. 7, § 54, provides, in relevant part:

"No agency shall make any privatization contract and
no contract shall be valid unless the agency . . . first
complies with each of the following requirements: -- (1)
The agency shall prepare a specific written statement of
the services proposed to be the subject of the
privatization contract, including the specific quantity and
standard of quality of the subject services. . . . (4) The
agency shall prepare a comprehensive written estimate of
 13

ensure that privatization contracts are permissible only if a

State agency can demonstrate cost savings that do not result

from lowered employment standards. "[N]o [privatization]

contract shall be valid" unless and until the agency submits a

written certification that it has complied with the above

requirements and all others enumerated by the statute. Id.

In order to enforce these requirements, the Auditor may

adopt regulations and prescribe forms that an agency must use

when formulating its proposal. G. L. c. 7, § 55 (c). The

Auditor may object to any proposed privatization contract within

thirty days of receiving the agency's certificate of compliance.

G. L. c. 7, § 55 (a). Such an objection is final and binding on

the agency. Id.

ii. Duty and injury. DMH contends that the provisions of

the Pacheco Law serve only State employees and not the unions to

which they belong, and that, accordingly, it owes no duty to the

the costs of regular agency employees' providing the
subject services in the most cost-efficient manner. . . .
For the purpose of this estimate, any employee organization
may . . . propose amendments to any relevant collective
bargaining agreement to which it is a party. . . . (5)
After consulting any relevant employee organization, the
agency shall provide adequate resources for the purpose of
encouraging and assisting present agency employees to
organize and submit a bid to provide the subject
services. . . . (7) The head of the agency and the
commissioner of administration shall each certify in
writing to the state auditor, that: (i) he has complied
with all provisions of this section and of all other
applicable laws . . . ."
 14

union. This argument finds little support in the statutory

language. The Pacheco Law confers two specific, substantive

rights on employee organizations that benefit those

organizations in and of themselves. First, G. L. c. 7,

§ 54 (4), provides that "any employee organization may . . .

propose amendments to any relevant collective bargaining

agreement to which it is a party" in order to reduce the

estimated cost of allowing the services in question to continue

to be provided by State employees. Second, G. L. c. 7,

§ 54 (5), requires that the agency shall consult with "any

relevant employee organization" before providing resources that

will encourage agency employees to prepare a bid for the

services in question. No privatization contract "shall be

valid" if a public agency fails to comply with these substantive

requirements, G. L. c. 7, § 54, which recognize and promote the

essential role unions play in "assist[ing their] members to

improve their wages, hours, and conditions of employment."

G. L. c. 150E, § 1.

Under the plain language of the Pacheco Law, then, a public

agency owes certain duties to a collective bargaining

organization. When such an agency seeks to privatize duties

previously performed by State employees, it is incumbent upon

that agency to allow the union to amend its collective

bargaining agreement and benefit from a consultation about
 15

materials relevant to the preparation of a competitive bid. An

agency that does not afford a union these opportunities is not

in compliance with the Pacheco Law and cannot be said to have

fulfilled its obligations. Here, accepting all facts alleged in

the union's complaint, DMH declined to submit its proposed

contracts to the Auditor for review even though the contracts

constituted "privatization contracts" within the meaning of

G. L. c. 7, § 53. In thus preventing the union from advocating

on behalf of its members in the manner specifically permitted by

the Pacheco Law, DMH committed a breach of the duty it owes the

union pursuant to that statute.

The union has alleged in its complaint a "reasonably

definite" injury stemming from this breach, Professional Fire

Fighters of Mass. v. Commonwealth, 72 Mass. App. Ct. 66, 75

(2008), that is neither "speculative, remote, [nor] indirect,"

Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998).

Because DMH did not follow the procedural steps set forth in

G. L. c. 7, § 54, the union had no opportunity, pursuant to

G. L. c. 7, § 54 (4), to amend the terms of its collective

bargaining agreements with a public agency in an effort to lower

the costs of providing the relevant services by union members.

Nor was it able to consult with DMH pursuant to G. L. c. 7,

§ 54 (5), to assist in compiling information for use by agency

employees. As a result of DMH's unilateral determination that
 16

the Pacheco Law did not apply to its proposed contracts,

therefore, the union was precluded from exercising its explicit

statutory rights and from intervening, in service of its

membership, when confronted with the prospect of privatization.

These consequences are not "inchoate and

nonparticularized," Ten Persons of the Commonwealth v. Fellsway

Dev. LLC, 460 Mass. 366, 381 (2011) (citation omitted); they

bear directly on the union's core mission of protecting the

long-term interests of all of its members. See G. L. c. 150E,

§ 5 ("The exclusive representative . . . shall be responsible

for representing the interests of all . . . employees without

discrimination"). In essence, the union's complaint alleges

that, because of DMH's failure to submit its contracts to the

Auditor and to comply with the terms of the Pacheco Law, one

hundred case managers lost their jobs; the union could neither

exercise its statutory rights to bargain on their behalf nor

continue to represent those managers once they were no longer

State employees. Taken as true, these deprivations constitute

cognizable injury for purposes of the declaratory judgment

statute.

What is more, such injuries fall within the zone of

interest of the Pacheco Law. See Massachusetts Ass'n of Indep.

Ins. Agents & Brokers, Inc. v. Commissioner of Ins., supra at

294 (injury must be "within the parameters of the statutory
 17

concern"). The Pacheco Law was enacted "with due regard

for . . . the needs of public and private workers," G. L. c. 7,

§ 52,9 and, accordingly, allows the union to amend collective

bargaining agreements and consult with a public agency about the

resources necessary to prepare competitive bids. The

administrative scheme set forth by the Pacheco Law, therefore,

fairly can be seen as promoting the role of employee

organizations in representing the interests of State employees.

When the union was foreclosed from assisting its members in the

ways enumerated by the Legislature, the resulting injury fell

squarely within the statute's area of concern. See

Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v.

Commissioner of Ins., supra at 295-296.

In contending that it owes no duty to the union and that

the union has suffered no cognizable injury to itself, DMH

misapprehends the nature of employee organizations as defined in

G. L. c. 150E. A union is the exclusive representative of all

employee members, see G. L. c. 150E, § 4, and it "shall have the

9
Indeed, Governor Weld understood the Pacheco Law, as first
proposed by the Legislature, to be a "State Employee
Preservation Act." Governor William F. Weld, Testimony before
the Joint Committee on State Administration, in Executive Office
for Administration and Finance, Commonwealth of Massachusetts,
Privatization in Massachusetts: Getting Results 49 (Draft Nov.
1, 1993). See Rosse v. Commissioner of Revenue, 430 Mass. 431,
438 n.6 (1999), quoting Kartell v. Blue Shield of Mass., Inc.,
384 Mass. 409, 421 (1981) (This court "may turn to unofficial
sources in order to gain a 'contemporary understanding of the
underlying purposes' of the legislation").
 18

right to act for and negotiate agreements covering all employees

in the unit." G. L. c. 150E, § 5. It is not the case,

moreover, that the interests of a union are always coextensive

with those of its members. See Anderson v. Commonwealth

Employment Relations Bd., 73 Mass. App. Ct. 908, 911 (2009)

(union "did act reasonably in negotiating the [collective

bargaining agreement] for all its members" even where it did not

cater to each individual member's demands). A union may take

action in service of the long-term interests of its members,

even where certain employees disagree or are displeased with the

immediate result. See Ford Motor Co. v. Huffman, 345 U.S. 330,

338 (1953) ("The complete satisfaction of all who are

represented [by a union] is hardly to be expected").

The Pacheco Law preserves this distinction between a union

and its membership. For instance, only a union may, pursuant to

the Pacheco Law, amend collective bargaining agreements in order

to lower the costs of having its members perform the services at

issue. An individual employee has no statutory authority to

take such action.10 See Miller v. Board of Regents of Higher

Educ., 405 Mass. 475, 480 (1989); DiLuzio v. United Elec., Radio

10
This is in keeping with the requirements of G. L.
c. 150E, § 6, pursuant to which public employers may negotiate
in good faith only with a union. They are prohibited from
dealing directly with individual employee members. See G. L.
c. 150E, § 6; Service Employees Int'l Union, AFL-CIO, Local 509
v. Labor Relations Comm'n, 431 Mass. 710, 714-715 (2000).
 19

& Mach. Workers of Am., Local 274, 386 Mass. 314, 314 (1982),

S.C., 391 Mass. 211 (1984) (labor unions are legal entities for

purposes of suing or being sued). Furthermore, the Pacheco Law

distinguishes between rights that belong to a union and rights

that belong to a union's members. As discussed, under the

Pacheco Law, the union is empowered to consult with an agency

prior to the agency's dissemination of information relevant to

competitive bids. Pursuant to G. L. c. 7, § 54 (5), however,

the individual members are the parties actually permitted to

submit such bids.

These provisions reflect the Legislature's understanding

that a union may have rights and interests separate from those

of the employees it represents. Although DMH's asserted failure

to notify the union of its intent to contract may also have run

counter to the interests of the case managers, who were State

employees, such conduct caused independent harm to the union

itself, which was barred thereby not only from exercising its

statutory privileges, but also from engaging in actions

indispensable to its essential function. See Massachusetts

Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of

Ins., supra at 296 (plaintiffs had standing where opposite

ruling would have had "the potential of lessening the role and

vitality of such persons" within administrative scheme).
 20

While the injuries a union suffers also may affect the

well-being and rights of its members, rather than being a bar to

union standing, such concurrent injury simply reflects the very

nature of the relationship between a collective bargaining

association and the employees it represents. A union may have

standing in its own right even where its members suffer injury,

so long as the union, too, is injured in its capacity as an

organization. See Babbitt v. United Farm Workers Nat'l Union,

442 U.S. 289, 299 n.11 (1979), overruled on other grounds by 442

U.S. 936 (1979) (union had direct standing to seek declaratory

judgment invalidating provision of farm labor statute that

inhibited members' constitutional right to freedom of

association). Contrast Massachusetts Elec. Co. v. Massachusetts

Comm'n Against Discrimination, 375 Mass. 160, 177-178 (1978)

(union lacked standing pursuant to G. L. c. 151B, § 1, where

"union as a union did not sustain any direct injury as a result

of the company's alleged [sex-based] discriminatory practices,"

which only affected rights of its pregnant members).

iii. Availability of other remedies and possible adverse

consequences. To deny standing in these circumstances would

leave the union no recourse whenever an agency decides that the

requirements of the Pacheco Law are inapplicable and, therefore,

that it need not comply with those requirements. See Villages

Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs,
 21

410 Mass. 100, 107 (1991) (plaintiff had standing to seek

declaratory relief where no other remedy available). Contrast

Enos, supra at 141-143 (plaintiffs who had an alternative

statutory remedy lacked standing to file claim under G. L.

c. 231A). Issuance of a writ of mandamus would be inappropriate

against DMH, the Auditor, or the Attorney General, where none of

those parties has failed "to perform a clear cut duty" pursuant

to the statute.11 See Montefusco v. Commonwealth, 452 Mass.

1015, 1015 (2008), quoting Simmons v. Clerk-Magistrate of the

Boston Div. of the Housing Court Dep't, 448 Mass. 57, 59-60

(2006). Where a State agency seeks to enter into contracts that

constitute "privatization contracts" under G. L. c. 7, § 54,

that agency, as discussed above, owes certain specific duties to

a union pursuant to the Pacheco Law. Here, however, the parties

dispute whether the law applies to the proposed contracts in

question and thus whether DMH, in fact, owed any duties at all

to the union. Indeed, the union sought declaratory judgment in

order to resolve precisely this question. Accordingly, absent a

11
Moreover, the extraordinary remedy of mandamus is
appropriate only to prevent a failure of justice in instances
where no other relief is available and "nothing else would
work." Doe v. District Attorney for the Plymouth Dist., 29
Mass. App. Ct. 671, 674 (1991). The Coach & Six Restaurant,
Inc. v. Public Works Comm'n, 363 Mass. 643, 644 (1973). See
Trust Ins. Co. v. Commissioner of Ins., 48 Mass. App. Ct. 617,
622 (2000) (where petitioner had filed petition for declaratory
judgment, mandamus was inappropriate given petitioner's "more
general request for relief").
 22

binding declaration that DMH's efforts at privatization did,

indeed, fall within the terms of the Pacheco Law, DMH would

maintain it has no "clear cut" obligations to the union that

might render mandamus an apt mechanism for relief.

It would be equally unsuitable for the union to seek

mandamus against the Auditor, who neither shirked his statutory

obligation or otherwise violated the terms of the Pacheco Law.

As noted, the Legislature did not establish any means by which

the Auditor may contest an agency's assertion that the Pacheco

Law is inapplicable. Here, the Auditor nevertheless issued a

memorandum advising DMH that its proposed contracts were subject

to the terms of the Pacheco Law, but subsequently, DMH has taken

no steps towards compliance. There is therefore no other action

on the part of the Auditor that the union properly could request

in a petition for a writ of mandamus. Finally, as for the

Attorney General, the Pacheco Law provides only that she may

file an action pursuant to G. L. c. 7, § 54 (2), in order to

enforce the minimum wage to be paid to those employed under a

privatization contract. It makes no express provision for her

to intervene when an agency, as here, declines at the outset to

submit its contracts to the Auditor.

Nor does the Pacheco Law contain a private right of action

that might provide some other avenue for relief. Although DMH

points to this absence as evidence that permitting an employee
 23

organization to seek declaratory relief against a public agency

would contravene the intention of the Legislature, we draw the

opposite conclusion. A plaintiff may seek the equitable remedy

of declaratory relief, Grady v. Commissioner of Correction, 83

Mass. App. Ct. 126, 137 n.9 (2013), even if the relevant statute

does not provide a private right of action. See, e.g., Ten

Persons of the Commonwealth v. Fellsway Dev. LLC, 460 Mass. 366,

380 (2011), quoting Enos, supra at 134-135 ("to invoke the

court's general equity jurisdiction under c. 231A, '[t]he

dispositive question is whether the plaintiffs have demonstrated

that they have standing to maintain their action . . .'"). Cf.

Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court,

448 Mass. 15, 24, 38 (2006) (plaintiff employees could seek

declaratory relief against trial court for exposure to asbestos

despite absence of private right of action in applicable

environmental statutes).

To be sure, a party may not seek declaratory relief to

effect an "end run" around the absence of a private right of

action where the Legislature intended to foreclose certain

remedies. See Boston Med. Ctr. Corp. v. Secretary of the

Executive Office of Health & Human Servs., 463 Mass. 447, 471

(2012), citing Green v. Mansour, 474 U.S. 64, 73 (1985)

(plaintiff medical provider could not seek declaratory judgment

as to reasonableness of rate determinations absent private right
 24

of action). But that rationale has little weight where the

absence of declaratory relief would prevent the Pacheco Law from

being administered properly and thus contravene the

Legislature's intent. Here, the union suffered a cognizable

injury but cannot directly enforce the terms of the statute or

otherwise vindicate its rights. No other party is entitled to

challenge the alleged violation. In such specific

circumstances, declaratory judgment is an appropriate vehicle

for relief to ensure that agencies may not evade the

requirements of the Pacheco Law with impunity.

In short, it cannot be that there is no recourse where an

agency, believing the Pacheco Law is inapplicable in a

particular situation, simply opts not to comply with its terms.

The Pacheco Law could not function as the Legislature intended

if an agency could decide, unilaterally and without input from

the Auditor or the union, that its proposed contracts did not

fall within the provisions of G. L. c. 7, § 53. Indeed, a

public agency would have little incentive to adhere to the

Pacheco Law's requirements were its decision to evade those

requirements immune from any review. DMH's belief that the

Pacheco Law does not apply to its proposed contracts cannot be

understood to inoculate it against efforts to demonstrate

otherwise. Such an approach would render the statute toothless,
 25

confounding the Legislature's efforts to ensure that

privatization does not occur at the expense of public welfare.

Allowing the union to contest an agency's otherwise

unreviewable pronouncement that it need not comply with the

Pacheco Law will not, as DMH contends, transform the declaratory

judgment statute into a "roving entitlement for allegedly

aggrieved plaintiffs." Enos, supra at 141 (no standing where

public agency did not owe plaintiff property owners duty under

Massachusetts Environmental Protection Act). To confer standing

on an employee organization in this circumstance does no more

than allow it to challenge the view of a public agency that its

proposed contracts do not fall within the terms of the Pacheco

Law.12 Indeed, such challenges are critical to the functioning

12
Our decision that declaratory judgment is an appropriate
remedy here should be understood as limited to the circumstances
presented, where an agency takes the position that the Pacheco
Law does not apply to certain contracts with private entities
and accordingly does not comply with relevant statutory
obligations including notification of the Auditor as to such
contracts. See G. L. c. 7, §§ 52-55. In contrast, an action in
the nature of certiorari pursuant to G. L. c. 249, § 4, is the
proper vehicle for relief when challenging a decision made by
the Auditor. See MBTA, supra at 790-791.

Further, the Pacheco Law, consistent with its purpose,
provides a streamlined and time-sensitive process for agencies
seeking to enter into privatization contracts. Such contracts
affect the interests of many parties and the concomitant need
for expedition in settling questions as to their validity is
evident. Given this, and notwithstanding the three-year statute
of limitations for declaratory judgment actions, a union failing
to take prompt action against the agency in these circumstances
 26

of the statute, and also may provide clarity to parties in

related situations concerning whether they properly are subject

to the requirements of the Law.

We express no opinion as to the merits of the Auditor's

determination that the CBFS contracts at issue constitute

"privatization contracts" such that the Pacheco Law does, in

fact, apply. See note 4, supra. Contrast MBTA, supra at 791-

792. We conclude only that there must be a way to resolve any

disputes over the parameters of the Pacheco Law in the first

instance, and that the union's complaint alleged a cognizable

injury sufficient to support standing. Because the union is the

party best situated to challenge an agency's decision not to

submit proposed contracts to the Auditor, because seeking a

declaratory judgment is the only viable mechanism by which it

may do so, and because the Legislature could not have intended

that the Pacheco Law effectively be unenforceable, the union has

direct standing to pursue declaratory relief under G. L.

c. 231A.13

runs the serious risk of exposure to the affirmative defense of
laches.
13
The union also alleges that it has associational
standing, on behalf of its members, to file a petition for
declaratory relief. Given our conclusion that direct standing
does lie, we do not reach this claim.
 27

b. Joinder of necessary parties. We turn to the union's

asserted failure to join necessary parties pursuant to G. L.

c. 231A, § 8, and Mass. R. Civ. P. 19, which, DMH maintains,

independently should bar consideration of the union's complaint.

The declaratory judgment statute provides that "all persons

shall be made parties who have or claim any interest which would

be affected by the declaration." G. L. c. 231A, § 8. Rule 19,

although not limited to the context of declaratory relief, is to

similar effect.14 The failure to name necessary parties may be

jurisdictional in a declaratory judgment action, thereby

precluding the court's consideration of the issue. See, e.g.,

Villages Dev. Co. v. Secretary of the Executive Office of Envtl.

Affairs, 410 Mass. 100, 105-106 (1991).

In its complaint, the union did not name as defendants the

private vendors with whom DMH entered into contracts under the

CBFS program. These vendors, however, are plainly necessary

parties. As beneficiaries of the disputed contracts, the

14
Rule 19 (a) of the Massachusetts Rules of Civil
Procedure, 365 Mass. 765 (1974), provides that a

"person who is subject to service of process shall be
joined in the action if . . . (2) he claims an interest
relating to the subject of the action and is so situated
that the disposition of the action in his absence may (i)
as a practical matter impair or impede his ability to
protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest."
 28

vendors have an interest in the resolution of the union's claim,

and, like DMH, a right to contest whether the contracts are

subject to the terms of the Pacheco Law. Unless and until the

vendors are joined as parties, therefore, "any declaration of

rights would be merely academic as to persons not parties to the

proceedings." J.R. Nolan & B.R. Henry, Civil Practice § 48.11,

at 411 (3d ed. 2004) ("fundamental purpose" of declaratory

judgment "cannot be effectuated" where necessary parties are

missing from suit). Accordingly, the judge did not err in

concluding that the union's failure to name all necessary

parties rendered its complaint legally insufficient, and that

she therefore lacked jurisdiction to entertain that complaint.

3. Conclusion. While there was no error in the judge's

decision to dismiss the complaint on the ground of the failure

to name all necessary parties, in light of our conclusion as to

direct standing, the judgment of dismissal is vacated and set

aside, and the case is remanded to the Superior Court for the

limited purpose of allowing the union to file a motion seeking

leave to amend the complaint to add all necessary parties. If

the union does not file such a motion within thirty days of the

issuance of the rescript in this case, an order shall enter

dismissing the complaint.

So ordered.