(dissenting, with whom Nolan, J., joins). I dissent because I conclude that the defendant was immune from suit for the acts complained of under both Federal and State law.
1. Liability under § 1983. The court concludes that the defendant was properly denied qualified immunity under 42 U.S.C. § 1983 (1982) because the plaintiff’s reinstatement was required by G. L. c. 31, § 37, and, therefore, the defendant’s conduct was ministerial and not discretionary. Although reinstatement to a classified position after a leave of absence may be ministerial in some circumstances, the record here establishes that reinstatement was discretionary. General Laws c. 31, § 37, provides, in part, that an appointing authority may grant a leave of absence for more than fourteen days only upon the written request of the employee (or other person authorized) which shall include a detailed statement of the reason for the request. Furthermore, no leave of absence for a period of more than three months shall be granted without the prior approval *40of the administrator. The section further provides that any person who has been granted a leave of absence or an extension thereof, “pursuant to this section,” shall be reinstated “at the end of the period for which the leave was granted.”
The leave in this case was granted in 1977, and the plaintiff’s request for reinstatement at issue was filed in June, 1981. The motion judge found that there was nothing in the record to indicate that the leave was granted with the prior approval of the administrator as required by § 37. The court informs us that the plaintiff’s leave was requested “for thirty days or until [his] personal problem has been resolved.” The plaintiff appeared before the board on August 4, 1981, and he was reinstated three and one-half months later on November 23, 1981. Neither in his complaint nor by affidavit did the plaintiff claim that his request for a leave of absence complied with the requirements of § 37. There was no evidence that the prior approval of the administrator, an essential element of § 37, was obtained, and nowhere does it state that the termination of the leave would be at any definite time, only that the leave was for the vague period, “until my personal problem has been resolved.” Neither is it clear that the request for a leave “until my personal problem has been resolved” complies with the requirement that the request contain a detailed statement of the reason for the request. I do not mean to imply that either the plaintiff or the defendant is to be criticized for agreeing to a voluntary leave of absence in the circumstances of this case. The point is that the defendant cannot be charged with responsibility for failure to perform a ministerial act until such time as it is shown that the conditions making reinstatement mandatory have been clearly established. Therefore, because the findings and allegations establish that the factual predicates for the applicability of § 37 were missing, the official could not know the precise action that was required of him, and thus reinstatement was discretionary. I would agree that § 37 mandates reinstatement when those factual predicates are clearly before the official in question; however, such is not the case here.
Neither do I believe that the defendant could be found to have acted with knowledge that his conduct violated any *41“clearly established” statutory or constitutional right of the defendant. The defendant could not reasonably be expected to know that the plaintiff’s reinstatement on the condition of a waiver of his civil claim was unlawful. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Until recently, judges and other officials with expert knowledge frequently sought waivers of civil claims as a precondition to favorable action toward a criminal defendant. See Foley v. Lowell Div. of the Dist. Court Dep’t, 398 Mass. 800, 804-805 (1986). Recently, the Supreme Court reversed a decision of the Court of Appeals for the First Circuit, invalidating such a waiver. Newton v. Rumery, 480 U.S. 386 (1987). Thus the law was by no means settled and, in fact, the Supreme Court in Newton v. Rumery, supra, ruled that even in a criminal case, such a waiver is not necessarily invalid.
I conclude, therefore, that the plaintiff has failed to allege sufficient facts either in his complaint or by affidavit to establish the defendant’s liability under 42 U.S.C. § 1983 (1982). Summary judgment in favor of the defendant should have been granted.
2. Liability under State law. The court concludes that no immunity protects public officials from liability for intentional torts while performing ministerial acts. Since I believe that the plaintiff’s claim is grounded on discretionary conduct of the defendant, I would not reach the question of liability for ministerial acts and would apply our traditional rule of immunity for public officials. Although the Massachusetts Civil Rights Act is silent on the question of immunity, the court recently concluded that juridical officers are absolutely immune from suit under G. L. c. 12, § 11I, because that statute contained no abrogation of the common law immunity of such officers. Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244, 252 (1985). I would adhere to the logic of the Chicopee Lions Club decision and would apply the rule of immunity in effect prior to the enactment of G. L. c. 12, § 11I.1 In addition, I cannot agree that the adoption of the *42Massachusetts Tort Claims Act in a previous legislative session is any evidence of a legislative intent to create by implication in a subsequent statute a new rule of immunity for previously protected public officials. Furthermore, the fact that the Legislature abolished sovereign immunity in order to permit citizens to seek recourse against governmental agencies evinces no intent to change the law of immunity for public officials who had previously been liable for their negligent, as well as intentional, torts. The Massachusetts Tort Claims Act is not about granting immunity to individuals. It created a cause of action against governmental agencies where previously sovereign immunity had barred such suits. It eliminated claims against public employees for negligence within the scope of their employment where liability of governmental agencies was created, G. L. c. 258, § 2, and left undisturbed employee liability where the law of governmental liability was left undisturbed, G. L. c. 258, § 10. Clearly the statute deals primarily with governmental liability and deals only incidentally, in a limited circumstance, with immunity of individuals. In enacting the Massachusetts Civil Rights Act, therefore, the Legislature was adding new principles to a system already affected by common law axioms (as it usually does), not adopting a law to be applied in a vacuum or writing “on a common law slate recently wiped clean.” Ante at 36.
The common law, as discerned by this court in Gildea v. Ellershaw, 363 Mass. 800, 820 (1973), is that nonjuridical officers are afforded immunity for their discretionary acts performed within the scope of official duty in good faith without malice or corruption. I would apply to these officers the same immunity that existed for them at the adoption of the Massa*43chusetts Civil Rights Act as the court has done for juridical officers. I have previously stated that on the facts of this case the defendant’s acts were discretionary. I view the allegations as insufficient to warrant the conclusion that he acted in bad faith with malice or corruption.
I reach this conclusion in full view of the policy considerations extant. In the words of the United States Supreme Court, “government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability. ” Harlow v. Fitzgerald, supra at 806. “The privilege [of immunity] is not a badge or emolument of exalted office, but an expression of policy designed to aid in the effective functioning of government.” Gildea v. Ellershaw, 363 Mass. 800, 817 (1973), quoting Barr v. Matteo, 360 U.S. 564, 574 (1959). “[T]he immunity applies equally to decisions which the public officer is required to make and to those he is permitted to make.” Id. In an era where litigiousness among our citizens has reached a fever peak, and where public officials are subjected to scrutiny of their public and private affairs unparalleled in history, I see no justification to depart from a clearly established rule of immunity.
Similar immunity is afforded to such officials under 42 U.S.C. § 1983 (1982), the Federal counterpart of G. L. c. 12, § 111. See Bell v. Mazza, *42394 Mass. 176, 181 (1985), citing Batchelder v. Allied Stores Corp., 393 Mass. 819 (1985). The Supreme Court in Davis v. Scherer, 468 U.S. 183, 194 & n.12 (1984), applied the qualified immunity described in Harlow v. Fitzgerald, supra, to actions brought under 42 U.S.C. § 1983 (1982).
In Batchelder v. Allied Stores Corp., supra at 822-823, this court concluded “that the Legislature intended to provide a remedy under G. L. c. 12, § 11I, coextensive with 42 U.S.C. § 1983 . . . except that the Federal statute requires State action whereas its State counterpart does not.”