Levy v. Acting Governor

Cordy, J.

(dissenting, with whom Marshall, C J., and Sosman, J., join). I concur with the court’s conclusion that the Governor may not remove members of the Massachusetts Turnpike Authority (Authority) on the basis of differing opinions about policy; that would not constitute “cause” within the meaning of G. L. c. 30, § 9. I disagree, however, that the Governor has done so in this case. Rather, there is evidence here of financial irresponsibility and maladministration, which I would conclude *753are adequate causes for the removal of a member of the Authority by the Governor. Because I believe the proper standard of judicial review of removal is whether the evidence on which the decision was based was sufficient to satisfy us that it was not arbitrary or capricious, and because in this case the evidence of financial irresponsibility and maladministration was adequate to satisfy both the arbitrary or capricious standard and the substantial evidence standard (applied by the court), I respectfully dissent. .

The Authority was created by statute as “a body politic and corporate,” placed within the Executive Office of Transportation and Construction, and made exempt from supervision and regulation by any executive branch, agency, department, or official except the Governor. Levy v. Acting Governor, 435 Mass. 697, 707 (2002). In addition, the Governor appoints the members of the Authority, and she alone has the power to remove them for cause under G. L. c. 30, § 9. In these limited but important respects, the Governor is accountable to the citizens of the Commonwealth for the performance of the Authority and the conduct of its members.

Beginning with the enactment of its new enabling statute in 1996 (G. L. c. 81 A), the Authority has been significantly refashioned from the sleepy operator of a toll road and two tunnels to the manager of the largest construction project in the country, the future owner of its immensely sophisticated facilities, and the beneficiary of one billion dollars in taxpayer money to be paid to it over forty years for the purposes of maintaining and operating those facilities.

As of 1996, the vast majority of the cost of the Central Artery project (project) had been borne by the Federal government and the Commonwealth. Paying the balance of its projected cost (now estimated to be in excess of $14 billion) was then and continues to be a significant obligation of the Commonwealth. The enactment of G. L. c. 81 A, the passage of subsequent related legislation, and the agreements entered into between the Commonwealth and the Authority pursuant thereto, all reflect a collective determination by the Governor, the Legislature, and the Authority that this obligation, while remaining the legal *754obligation of the Commonwealth, is a shared responsibility between the Commonwealth and the Authority.1

The ability of the Authority and the Commonwealth to meet this shared responsibility in a fiscally prudent manner, and in the face of rising project costs, is largely premised on the ability to access the Authority’s financial resources (tolls and real property), without jeopardizing existing bonds, bondholders, or covenants. To this end, the Governor, legislative leaders, and the Authority reached agreement in 1996 that certain future toll increases would be necessary on the Massachusetts Highway System (MHS). This agreement was incorporated into a plan of scheduled toll increases, which was announced and repeated by the Authority in its prospectuses and financial reports. The credibility of the Authority and the Commonwealth with the financial community and its bondholders was critically important to meeting their mutual financial objectives, and the commitment to toll increases (in the face of expected resistance) an important factor in establishing and maintaining that credibility. It is in this context that we must review the precipitous actions of Jordan Levy and Christy Peter Mihos two months before those toll increases were to go into effect, and of the Governor in removing them.

1. Standard of Review.

The removal of a public officer is quintessentially executive in nature. While “judicial review may be had of the propriety or good faith of a finding of cause by one intrusted with the power of removal... the general question of executive policy involved in a removal cannot be turned over to the courts.” Opinion of the Justices, 300 Mass. 596, 599-600 (1938). Dating back more than one hundred years, this court has consistently held that judicial review of the discharge of a nontenured (i.e., noncivil service) public officer for “cause” is limited to whether the cause was adequate in law and the decision arbitrary. Ayers *755v. Hatch, 175 Mass. 489, 492 (1900) (holding, in context of mayor’s removal of city assessor, “[i]f the cause assigned is a reasonable one, then, whether under the circumstances it is sufficient to justify a removal, is for the [executive] to decide and his decision is final”). See Dunn v. Mayor of Taunton, 200 Mass. 252, 258 (1908), citing Gaw v. Ashley, 195 Mass. 173 (1907) (“the official action of the mayor of a city under a power of removal ‘for cause’ can be revised by this court only when there has been an arbitrary exercise of power, and the cause alleged for the removal is unreasonable and in law insufficient”); Gaw v. Ashley, supra at 177 (it is only if “cause alleged is frivolous or unreasonable and in law insufficient, that we can revise” mayor’s dismissal of board of health members for cause); Hogan v. Collins, 183 Mass. 43, 46 (1903) (holding in context of mayor’s removal of election commissioner that “decision of the mayor upon the evidence ... is not open to revision here, either to pass upon the weight of the evidence or to determine whether the evidence justified the finding”).

This standard was most recently articulated and affirmed in McSweeney v. Town Manager of Lexington, 379 Mass. 794 (1980). There, the court reviewed a town manager’s decision to remove the superintendent of public works and town engineer “for cause.” The court reversed a Superior Court judge who had applied the “substantial evidence” test, relying on Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 48-49 (1977), and Bunte v. Mayor of Boston, 361 Mass. 71, 74 (1972). The court concluded that, although the substantial evidence test was the appropriate standard of review in the Boston Edison case, the scope of review (under a writ of certiorari) is to be tailored to the substance of the complaint. McSweeney v. Town Manager of Lexington, supra at 799. Thus, the court stated that it would consider “the nature of the action sought to be reviewed” in determining the appropriate standard of review. Id. at 800. It went on to hold that in reviewing a decision to remove a public officer for cause, it would “uphold such decision so long as it is not arbitrary, capricious or an abuse of discretion.” Id. “In other words, our review of the evidence presented at the removal hearing will not be to determine whether there was substantial evidence to support the findings, *756but rather to determine whether there was sufficient evidence to satisfy the ‘arbitrary and capricious’ standard.” Id. See Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 924 (1980), citing McSweeney v. Town Manager of Lexington, supra (“standard for termination of employment” is arbitrary, capricious, or abuse of discretion).

The court today holds that the substantial evidence standard should apply to the removal of a noncivil servant notwithstanding an unbroken line of cases culminating in the McSweeney case. It does so stating that the nature of the Governor’s termination of a member of the Authority is different from the termination of a public officer over whom she might have broader oversight, responsibility, or control. It cites no authority for this new distinction. In my view, this is a distinction without a legal difference and will only confuse our jurisprudence and be difficult to apply in a principled manner to other terminations under G. L. c. 30, § 9, or comparable statutory provisions. A Governor appoints hundreds of individuals to serve on boards and commissions. Most are appointed for terms of years, many for terms longer than the four-year gubernatorial term.2 These appointment statutes often make no provision for removal, thereby placing that responsibility on the Governor under G. L. c. 30, § 9. How do we determine the standard to apply? Do we look to the differing responsibilities of each board or commission and make individual assessments of the extent to which they are under the oversight or supervision of the Governor or independent therefrom in order to determine our standard of *757review?3 The “nature” of the proceedings do not change depending on where the public officer being terminated is situated in the structure of government. All are in the nature of executive decisions to terminate employment and the standard of judicial review of a decision to remove remains the same: was the decision arbitrary or capricious. Of course, it remains the case that different levels of responsibility, discretion, or independence entrusted to a public officer, are factors that appropriately bear on what “cause” may be adequate in law, to support removal.

2. Cause.

There is no support in our law for limiting the “for cause” standard in the removal of public officers to misfeasance, malfeasance, or wilful neglect of duty. See A. Celia, Administrative Law and Practice § 1004 (1986). To the contrary, in Mc-Sweeney v. Town Manager of Lexington, supra at 798, we concluded that “ ‘[cjause’ under the Town Manager Act includes any ground asserted in good faith which is not arbitrary, irrational, unreasonable, or irrelevant to the town manager’s task of ensuring efficient management of the town.” In reaching this conclusion, we specifically held that “[rjemoval ‘for cause’ does not require a showing of inefficiency, neglect, or misconduct, and hence the cause for removal need not amount to a-substantive dereliction of known duties or standards of performance.” Id. at 797. Similarly, in Dunn v. Mayor of Taun-ton, 200 Mass. 252 (1908), we concluded that the mayor had sufficient grounds to remove town sewer commissioners under a statute which provided that they could be removed for “cause,” based on actions that he found to be fiscally irresponsible, imprudent, and against the public interest. See Ayers v. Hatch, 175 Mass. 489, 492 (1900) (in mayor’s removal of city assessor, “[cjause implies ... a reasonable ground of removal, and not a frivolous or wholly unsatisfactory or incompetent ground of removal”). See also Gaw v. Ashley, 195 Mass. 173, 177 (1907) (when cause alleged is frivolous or unreasonable and in *758law insufficient, we can revise mayor’s dismissal of board of health members for cause); Ham v. Board of Police of Boston, 142 Mass. 90, 95 (1886) (court may review removal of police officer for “cause” to determine whether cause “unreasonable and in law insufficient; as, for example, refusing to contribute money for political purposes”).

Although we have not previously.had occasion to consider what causes for removal are sufficient in the context of the Governor’s exercise of her power under G. L. c. 30, § 9,4 I would interpret G. L. c. 30, § 9, consistent with our extended line of jurisprudence interpreting the standard of cause for the removal of public officers under similar statutes, and not limit it to grounds of misfeasance, malfeasance, or neglect of duty.

I agree that the duties and responsibilities entrusted to the members by the enabling act are intended to insulate them from the ever-changing political winds so that they may more independently act in the best interests of the Authority, its toll payers, and its bondholders. I also agree that it would be inconsistent with the Authority’s statutory scheme to permit the Governor to remove its members on the basis of policy differences or disagreements and that such “cause” would be inadequate as a matter of law, and a removal decision based only on such evidence would be arbitrary or capricious. Removal for reasons of maladministration5 or fiscal irresponsibility, however, are consistent with the purposes of ensuring responsible leadership over matters of important public and private trust, and protecting the responsibilities of the members to make independent judgments regarding the policy, *759direction, and management of the Authority.

3. Removal Decision.

That conduct constituting financial irresponsibility and maladministration may not have exceeded the wide bounds of discretion vested in the members or may not have violated any legal duty, is not determinative of whether such cause exists. Conduct within those categories may well be fiscally irresponsible or constitute maladministration in the context of the events in which it occurs. In simplest terms, the Governor removed Levy and Mihos (at least in part) because they caused the Authority to renege on its commitment to raise tolls as scheduled, without adequate reason and without proper regard to the negative consequences of their actions to the financial strength and credit worthiness of the Authority,6 and the impact on funding the project. This commitment was made by the Authority to the Governor and legislative leaders in 1996, repeated to the Federal Highway Administration, repeated to potential bond buyers in the prospectuses issued when it raised money to fund the project in 1997 and 1999, and repeated in *760the Authority’s annual financial reports, the last of which was dated September 27, 2001.7

At the two-day hearing held in January, 2002, the Governor heard and considered the reasons articulated by Mihos and Levy to justify their actions. She found their explanations not credible, illogical, and irresponsible.8 She also found the altema*761five revenue plan which Levy and Mihos cobbled together after the vote of October 30, 2001 (to make up for $30 million in revenue lost by the vote to delay tolls), to be hastily prepared, imprudent, unrealistic, inadequate, and financially unviable.* *****9 While Levy and Mihos have labeled their dispute with the Governor a disagreement about toll policy, the evidence adduced before the Governor that Levy and Mihos caused the Authority to renege on an important, long-standing commitment to the executive and legislative branches of government as well as to the financial community, to the potential financial detriment of the Authority, the Commonwealth, and the project, was sufficient to establish adequate cause other than a mere policy disagreement, and therefore, satisfied the arbitrary and capricious standard.

*762I would also conclude that the evidence received and considered by the Governor passes the substantial evidence test applied by the court. In order to meet that test, there must be more than just “some evidence” or “any evidence” that might rationally create an inference; rather, there must be “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 930 (1980), quoting G. L. c. 30A, § 1 (6). In applying the test to the evidence, questions of credibility, or the resolution of “ ‘fairly conflicting views,’ are for the [executive], and not for the court” to decide. Id. at 930, quoting School Comm. of Wellesley v. Labor Relations Comm’n, 376 Mass. 112, 120 (1978). In my view, there was ample evidence that Levy and Mihos acted in a financially irresponsible manner leading up to and following the October 30, 2001, vote on toll increases. While there certainly was evidence from which Levy and Mihos could argue their position, that is not the test; the mere existence of some evidence in their favor (as recited by the court today) does not mean that there was not substantial evidence to support the Governor’s decision. The Governor was present during the hearings, was able to assess the credibility of witnesses, both in the context of conflicting testimony and more generally, and made credibility determinations that clearly and appropriately influenced her decision. She found the explanations of Levy and Mihos as to why they failed to follow the financial plan that had been in place for many years to be inconsistent and not credible in several regards. She also found the alternative revenue plan that they quickly developed after negative comment concerning their vote on October 30 to be unrealistic, financially irresponsible, inadequate, and not the product of the type of careful analysis and review necessary for such important financial decision-making. These conclusions are well grounded in the evidence, and even though contested by Levy and Mihos, fully meet the substantial evidence test and support the Governor’s conclusion that adequate cause existed for their removal.

I would therefore affirm the Governor’s termination of Levy and Mihos.

In furtherance of this shared responsibility, the Authority has raised and contributed in excess of $1,555 billion to the Central Artery project costs ($1,255 billion of this coming directly from the 1997 and 1999 Massachusetts Highway System [MHS] bond offerings), and has further committed $185 million from the sale of its “Allston Landing” real estate, $68 million in proceeds from the sale of additional parcels, and more generally, future revenue from the Authority’s real estate assets as may be required to meet the rising costs of the project.

See, e.g., board of environmental management (seven-year term), G. L. c. 21, § 2; board of food and agriculture (seven-year term), G. L. c. 20, § 1; Savings Bank Life Insurance policyholders protective board (seven-year term), G. L. c. 178A, § 9; Massachusetts housing finance agency (seven-year term), St. 1966, c. 708, § 3, as amended; board of registration of architects (five-year term), G. L. c. 13, § 44A; board of trustees of the Massachusetts hospital school (five-year term), G. L. c. Ill, § 3A; board of registration in podiatry (five-year term), G. L. c. 13, § 12A; board of registration in optometry (five-year term), G. L. c. 13, § 16; educational management audit council (five-year term), G. L. c. 15, § 55A; board of education (five-year term), G. L. c. 15, § IE; board of registration in dentistry (five-year term), G. L. c. 13, § 19.

Many other high ranking public employees whose actions the Governor supervises or oversees serve at her pleasure, and may be removed for no cause or any cause at all, e.g., Executive Secretaries, commissioners (and their senior staffs), and the staff in her own office.

In Murphy v. Casey, 300 Mass. 232 (1938), the Commissioner of Agriculture was removed by the Governor pursuant to G. L. c. 30, § 9, for the stated reasons of incompetence, lack of necessary qualifications and experience, and neglect of duty. The commissioner originally contended that these grounds were “insufficient in law for a removal for cause,” but that claim was not pressed when the case was argued before the court, and therefore was not decided.

Maladministration is one of the causes on which the impeachment of a public officer may be based under our Constitution. Part II, c. 1, § 2, art. 8, of the Constitution of the Commonwealth.

Those negative consequences began to accrue shortly after the October 30 vote. In its revised outlook, Moody’s Investors Services stated:

“Moody’s believes that the six-month deferral of a previously scheduled toll rate increase will weaken cash flows for the MHS by approximately $30 million, reduce debt service coverage for the bonds, and deplete working capital reserves, and produce a deficit balance in the MHS General Fund. These reserves are important as a financial cushion for unforseen events, as a source of pay-go capital funding, and as a reserve for potential additional overruns and start up costs of the [Authority’s] now $14.75 billion Central Artery/Tunnel project. In our April 2001 Global Credit Report on the [Authority] we noted that the . . . rating outlook was based on our expectation that management would make necessary adjustments to toll rates and expenditures .... Given the reluctance of the [Authority] to increase tolls as scheduled, Moody’s is concerned that future expected toll increases may be in jeopardy, and this would likely further erode credit quality” (emphasis added).

The Fitch bond rating service followed Moody’s and placed MHS bonds on a negative rating watch on November 30, 2001, citing concerns about the Authority’s “ability to maintain financial discipline” and meet its financial commitments “at the margins of protection assumed by the current ratings.”

Both Mihos and Levy testified that the former chief financial officer of the Authority told them in February, 1999, that their vote to issue the 1999 MHS bonds did not make it mandatory that they raise tolls. The former chief financial officer did not testify. Whether or not their votes in 1999 made raising tolls “mandatory” is a different question from whether their vote to delay an announced toll increase two months before it was scheduled to go into effect was fiscally responsible in October, 2001. In this regard, the evidence included the Authority’s most recent annual report to its bondholders and the investment community that was issued on September 27, 2001, and that continued to represent that the toll increase scheduled for January 1, 2002, would occur: “The [Authority] is expected to vote for toll increases in October 2001 for implementation in January 2002.”

Mihos and Levy point out that the annual report qualified the statements it contained. That qualifying language, however, does not support their position that reliance should not have been placed on the Authority’s increasing tolls in January, 2002. Specifically, the qualifying language in the annual report states:

“The information contained in this document makes ‘forward looking statements’ by using forward-looking words such as ‘may,’ ‘will,’ ‘should,’ ‘expects,’ ‘believes,’ ‘anticipates,’ ‘estimates,’ or others. You are cautioned that forward-looking statements are subject to a variety of uncertainties that could cause actual results to differ from the projected results. Those risks and uncertainties include general economic and business conditions, receipt of funding grants, and various other factors which are beyond our control” (emphasis added).

The vote of the Authority just one month later to delay the toll increases was decidedly not an event beyond the Authority’s control and was not a risk warned of either in the Authority’s annual report or in the 1997 and 1999 prospectuses. To be adequate, cautionary language in a prospectus must be specific to the actual risks. See Hines vs. ESC Strategic Funds, Inc., U.S. Dist. Ct. No. 3:99-0530 (M.D. Tenn. Sept. 17, 1999) (prospectus that disclosed risks of fund’s investments, but not risk that fund might decide to liquidate, was inadequate and misleading). See also Weiner v. Quaker Oats Co., 129 F.3d 310 (3d Cir. 1997) (repeated representations in annual reports that issuer intended to maintain certain debt leverage guideline, a situation within its control, were material and should have been updated as soon as they became unreliable; cautionary language inadequate in such circumstances).

Levy and Mihos point in part to the failure of two assumptions in the prospectuses to justify their delay in raising tolls, i.e., the failure to connect to the Ted Williams Tunnel in 2002, and the disruption to the economy caused *761by the events of September 11, 2001. The Governor concluded that this reasoning was illogical, and that the assumptions were in the prospectuses so that bond purchasers could judge the reliability of the Authority’s financial projections •— not as conditions precedent to its stated commitment to raise tolls on January 1, 2002. The failure of the assumptions created the need for more revenue, not less.

The Authority’s vote of October 30 delaying toll implementation called for the staff to study and report back to it in thirty days on a number of cost delaying and revenue enhancing ideas. On November 5, Levy and Mihos unexpectedly joined an Authority staff meeting and steered it to discussing possible measures that could make up for the $30 million loss in revenue resulting from the vote to delay in toll increases. Later that day, they announced an alternative revenue plan, which was amended in some respects on November 16 when they called a meeting and voted their plan (after the Governor had notified them of her action “suspending” them). The plan included deferring' some capital maintenance expenditures on the Authority’s roadways, raising tolls on commercial vehicles, putting two additional tolls on the MHS and studying further new tolls and the sale of additional Authority real estate (the proceeds of which appear to have already been separately committed to fund increased project costs).

Among other things, the Governor found the plan to be inconsistent with many of the purported reasons for not proceeding with the scheduled rate hike in the first place. For example, Mihos claimed that he voted to delay raising tolls because the people had not gotten the benefit of the connection between the Ted Williams tunnel and the Boston extension, because one should not raise “tolls” in a down economy, because former Governor Cellucci allegedly told him never to raise tolls, and because of opposition raised against the toll increases at public hearings held in the summer of 2001. However, the alternative plan included raising tolls on commercial vehicles and instituting new tolls on the MHS roadways, and would require a number of new public hearings at which heated opposition to new tolls could also be expected.