SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH & others.
Supreme Judicial Court of Massachusetts, Suffolk.
September 6, 2016. - November 22, 2016.
476 Mass. 51 (2016)
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Discussion of privatization act, G. L. c. 7, §§ 52-55. [55-57]
This court concluded that the invalidity of privatization contracts that failed to comply with the privatization act rendered such contracts void ab initio, where the language of the act made it unmistakably clear that the act was intended to be prohibitory, especially when viewed in light of the act’s stated purpose to regulate such contracts in order to protect taxpayers, recipients of services, and workers. [57-58]
This court concluded that renewal contracts between the Department of Mental Health (department) and private vendors, that were made by the exercise of rights under earlier privatization contracts between the parties and that, at the time of renewal, had already been challenged under the privatization act and were ultimately determined, during the renewal term, to have been void ab initio, were accordingly also void [58-59]; moreover, G. L. c. 7, § 53, a provision of the privatization act exempting from the definition of privatization contracts all subsequent agreements, including renewal contracts, did not, in these unusual circumstances, render the renewal contracts immune from challenge [59-64].
Civil action commenced in the Superior Court Department on February 15, 2012.
Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings.
Ian O. Russell (Katherine D. Shea also present) for the plaintiff.
Iraida J. Alvarez, Assistant Attorney General, for Department of Mental Health.
Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue.
Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue.
Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief.
LENK, J. This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012. Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Massachusetts privatization statute,
In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not privatization contracts. While recognizing that the Pacheco Law does not expressly provide a private right of action, we also recognized that the Legislature did not contemplate the situation presented there (and here), in which an agency determines on its own that it need not comply with the requirements of the statute. Id. at 335-336. Because unreviewable agency decision-making on such a matter would thwart legislative intent, we concluded that in these circumstances “declaratory judgment is an appropriate vehicle for relief to ensure that agencies may not
While SEIU I was under advisement in this court, however, the five-year term of the subject contracts drew to an end and, pursuant to the provisions of those contracts, DMH exercised options renewing them for successive one-year periods.3 Following our decision in SEIU I and the amendment of the complaint, DMH again successfully moved to dismiss the union’s declaratory judgment action, this time asserting it was moot. The basis for the dismissal was two-fold: first, the action was moot as to the now-expired 2009 contracts, and, second, the remaining extant renewal contracts were immune from challenge by virtue of
We are thus called upon to construe §§ 53 and 54 as they apply in these unusual circumstances. Cognizant that the Pacheco Law only contemplates the situation, unlike this one, where an agency recognizes a potential privatization contract as such and acts in compliance with the statutory requirements to assure its validity, see, e.g., SEIU I, 469 Mass. at 329-330; Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 784-787 (2000) (MBTA), we interpret §§ 53-54 with that framework in mind. Fidelity to the intent and purpose of the Legislature in enacting the Pacheco Law, evident in both the plain language of the statute when read as a harmonious whole and the legislative history, requires that the protection afforded renewal contracts by § 53 not be extended to those renewal contracts made pursuant to timely challenged and subsequently invalidated privatization contracts under § 54. We accordingly vacate the judgment of dismissal.
Sometime in 2009, SEIU notified the Auditor of the Commonwealth of DMH’s intent to enter into the contracts and the union’s objections to the contracts. The Auditor undertook an investigation, and in September, 2010, the Auditor’s general counsel sent DMH, SEIU, and the Attorney General a letter and memorandum stating that the contracts “[had] the effect . . . of privatizing services previously performed by public employees,” and therefore should have been submitted for review prior to taking effect. The Auditor told the Attorney General “to take whatever steps [the Attorney General felt] were appropriate,” but the Attorney General did not take any action.
Having failed to obtain relief through administrative channels, the union filed its initial complaint in 2012. As discussed, a Superior Court judge dismissed that complaint for lack of standing; we vacated the decision, concluding that the union did have standing, and we remanded for further proceedings. On remand, a different Superior Court judge dismissed the amended complaint, this time as moot; SEIU appealed, and we granted direct appellate review.
“The [G]eneral [C]ourt hereby finds and declares that using private contractors to provide public services formerly provided by [S]tate employees does not always promote the public interest. To ensure that citizens of the [C]ommonwealth receive high quality public services at low cost, with due regard for the taxpayers of the [C]ommonwealth and the needs of public and private workers, the [G]eneral [C]ourt finds it necessary to regulate such privatization contracts in accordance with [the rest of the law].”
In addition to defining several key terms, the other three sections of the law both set forth the procedures that agencies must follow when seeking to enter into privatization contracts and describe the independent review process that the Auditor is to conduct of a proposed privatization contract upon receiving from the agency specified information and a certification of compliance with those prerequisites.
Section 53 defines “privatization contract” as follows:
“[A]n agreement or combination or series of agreements by which a non-governmental person or entity agrees with an agency to provide services, valued at [an amount to be adjusted for inflation, currently $500,000, or more] which are substantially similar to and in lieu of, services theretofore provided, in whole or in part, by regular employees of an agency.”
It excludes from the definition “[a]ny subsequent agreement, including any agreement resulting from a rebidding of previously privatized service, or any agreement renewing or extending a privatization contract.”5 Id. Section 54 makes plain that “[n]o agency shall make any privatization contract and no such contract shall be valid unless the agency [follows requisite procedures].” This point is underscored in
DMH contends that, even if the initial 2009 contracts were deemed invalid, the now fully performed contracts should not be deemed void. It is DMH’s view that the renewal contracts would remain unaffected even in the face of such a declaration because renewal contracts are not privatization contracts by definition, and therefore need not comply with Pacheco Law requirements. Accordingly, in its view, the renewal contracts cannot be set aside by virtue of either their own noncompliance with such requirements or that of the predecessor contracts. The union maintains, by contrast, that the invalidity of the initial privatization contracts requires that they be set aside as void, that they could not give rise to validly exercised options to renew, and therefore that such renewal contracts are themselves void. Section 53, the union argues, does not provide a safe harbor immunizing such renewal contracts from the consequences of predecessor agreements’ invalidity.
Assuming, as we must at this stage, that the contracts DMH entered into with private vendors in 2009 were privatization contracts6 and that, pursuant to § 54, “no such contract shall be valid,” the questions we must resolve are these. Is the consequence of declaring a noncompliant privatization contract invalid to render it void and of no effect? If the answer is in the affirmative, are renewal contracts that are entered into pursuant to the exercise of rights in an invalid contract themselves thereby to be set aside? If the answer is in the affirmative, does the language of § 53 nonetheless create a safe harbor, as it were, for these renewal contracts?
We address each question in turn, interpreting the statute “according to the intent of the Legislature, ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Commonwealth v. Mogelinski, 473 Mass. 164, 169
a. The invalid 2009 contracts and voidness. Under the plain language of § 54, no privatization contract made by an agency “shall be valid” unless it is compliant with the requirements of the statute.7 Given that the 2009 contracts are assumed for these purposes to be noncompliant privatization contracts, they must be considered invalid.
Generally speaking, whether a contract made in violation of a statute is rendered void ab initio, i.e., treated as having no force or effect, depends upon the language of the statute and the nature of the violation. See Baltazar Contractors, Inc. v. Lunenburg, 65 Mass. App. Ct. 718, 720-721 (2006) (contract void where statute declares it so or where voiding contract necessary to accomplish statutory purpose). See also Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 55 (1991) (absent statutory declaration or binding precedent “voiding ab initio . . . applied . . . with the view of . . . effectuating public policy”).8 The language that the Legislature chose to use in both § 54 and § 55 (that “no agency shall make any privatization contract and no such contract shall be valid” [emphasis supplied]) makes it unmistakably clear that the statute was intended to be “prohibitory,” so as to render any contract in violation of it absolutely void, rather than simply “directory.” See Baltazar Contractors, Inc., supra at 721.
This is especially so when viewed in light of the Legislature’s stated purpose in § 52 that, in order to protect taxpayers, recipients of services, and workers, “it is necessary to regulate such privatization contracts” by means of the provisions set forth in the
b. Status of renewal contracts. It is undisputed that the renewal contracts were made by DMH’s exercise of rights under the 2009 contracts, which for purposes here are deemed invalid and void. Were such invalidation to have been the result of a declaratory judgment entered during the term of the 2009 contracts, we have little doubt that such void contracts would be deemed without force or effect, and that they would no longer give rise to rights to renew. See, e.g., Winslow v. Baltimore & Ohio R.R. Co., 188 U.S. 646, 657-659 (1903). The inquiry then is whether the same result should obtain where, as here, the options to renew were exercised before the already-challenged 2009 contracts were declared to be invalid. We conclude that it should.
The fact that we confront this issue at a time when the 2009 contracts have expired only underscores the highly unusual circumstances here. As we noted in SEIU I, “the Pacheco Law . . . provides a streamlined and time-sensitive process . . . . [T]he . . . need for expedition in settling questions . . . is evident.” SEIU I, 469 Mass. at 337 n.12. The statutory framework contemplates that an agency seeking to privatize functions will follow the procedures outlined and, if there is a challenge to the Auditor’s independent review of the proposed contract, that an action in the nature of certiorari will be filed and adjudicated promptly, protecting the many interests at stake. See MBTA, 430 Mass. at 786-787, 790-791. On the other hand, “it seems plain that the Pacheco Law as written does not contemplate the situation presented here.” SEIU I, supra at 327.
In light of the fact that the parties find themselves in a situation not expressly addressed in the statute, it is hardly surprising that the union’s challenges to DMH’s unilateral decision to forgo the Pacheco procedures began by raising the issue first with DMH and the Auditor and, thereafter, by awaiting enforcement action from the Attorney General. Cf. MBTA, 430 Mass. at 791 (law
That being said, this is not a case where the litigation was brought to challenge renewal contracts in the first instance on the basis that the predecessor contracts were invalid. To the contrary, the union challenged the predecessor 2009 contracts well before their expiration and now, only due to delays in adjudication, challenges the vitality of the extant renewal contracts. DMH and the vendors entered into those renewal contracts fully aware of the challenges lodged to the validity of the contracts pursuant to which the options to renew were exercised. In essence, DMH would have the result turn on the fortuity of the clock running out on the 2009 contracts before the litigation concluded. We fail to see how it serves the purpose of the Pacheco Law to permit the passage of time to be dispositive in such circumstances. See Mogelinski II, 473 Mass. at 169 (looking to statutory purpose). Cf. Commonwealth v. Vega, 449 Mass. 227, 233 (2007) (courts do not interpret statute to produce illogical result); 2A N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 45:12 (7th ed. rev. 2014).
The union’s claim that the 2009 contracts are invalid, and that they and the resulting renewal contracts are thereby void, gives rise to a live controversy. SEIU has a legally cognizable interest in the outcome of a declaration as to the validity and voidness of the 2009 contracts. Such a declaration implicates the consequent inability of DMH effectively to have exercised rights of renewal pursuant to such contracts and, insofar as such a declaration would permit any such ongoing renewal contracts to be set aside, would itself provide a remedy. In these circumstances, declaratory relief is not merely advisory and the union’s claim is not moot.
c. The impact of Section 53. DMH maintains, however, that because all subsequent agreements, including the renewal con-
We have no quarrel with the view urged by DMH that the language of § 53 is fairly read as subjecting to statutory requirements and review processes only new privatization agreements, entered into after the statute became effective, that privatize for the first time services that were until then provided by government employees. “Any subsequent agreement” continuing those privatized services is “not a privatization contract.”
There is nothing in the language of § 53 that renders the exempt categories bulletproof from challenges that may be made to contracts as such. The exempt agreements, as any contracts, are subject to all manner of common-law contract claims, ranging from simple breaches to issues such as fraud, unconscionability, or the ultra vires doctrine, some of which could, if proved, result in an agreement being rendered void. See, e.g., Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. at 54 (contract void ab initio as ultra vires); Restatement 2d of Contracts § 7 comment b (1981) (circumstances such as fraud or duress allow
Challenges also can seek indirectly the same result as to agreements ancillary to a void contract, because that contract is thereby rendered incapable of giving rise to any rights or duties. See 17A C.J.S. Contracts § 374 (2011) (“When parties to an illegal contract attempt to extend or renew it by entering into a new agreement, the new contract . . . is illegal and unenforceable”). Similarly, the latter type of challenge may affect “subsequent agreements” as the byproduct of a timely challenge to the validity of earlier contracts under the Pacheco Law, whether by virtue of the Auditor’s objection pursuant to § 55, an action in the nature of certiorari challenging the Auditor’s decision, or a declaratory judgment action challenging the agency’s noncompliance with §§ 54 and 55. Nothing in the express language of § 53 shields exempt agreements from such claims.
The silence of § 53 as to whether exempt agreements are immunized from all claims must be viewed in light of the statutory scheme as a whole. See Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Comm’n, 394 Mass. 233, 240 (1985) (statutes must be construed “as a harmonious whole”). Sections 54 and 55 plainly contemplate that privatization agreements, as defined in § 53, that are entered into absent compliance with the requirements set forth in those sections will be deemed void. To imply that § 53 draws a cloak of immunity over renewal contracts made pursuant to a contract voided by virtue of §§ 54 and 55 would countermand the clear mandate of those sections, i.e., that agencies must comply with the Pacheco Law when entering into agreements to privatize services.
Nor does the legislative history support the view that the exemption of “subsequent agreements” from the definition of “privatization contracts” was intended to render such agreements wholly unreviewable. We look to legislative history because “statutes are to be interpreted, not alone according to their simple, literal, or strict verbal meaning” (citation omitted), Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 24 (2006), and “[u]nderstanding the intent of the Legislature” can be “far more important than a literal dictionary meaning.” Quincy City Hosp. v. Rate Setting Comm’n, 406 Mass. 431, 449 (1990).
DMH contends, however, that the Legislature intended the statute to provide a safe harbor for subsequent agreements, including renewal contracts, in order to ensure finality and attendant certainty for the parties to the contracts and those they serve. On this view, § 53 functions as an implicit statute of repose. Challenges belatedly invalidating renewal contracts as the result of statutory noncompliance in connection with the predecessor privatization contract would interfere with this salutary goal. There is merit to this point, but it does not justify the immunity that DMH seeks for renewal contracts. It goes instead to the timing of such challenges.
We are mindful that the statutory scheme recognizes the need for expedition in the review of privatization contracts. That is apparent in the short timelines set forth in § 55 for agency-initiated review by the Auditor, and the fact that, if challenged thereafter in an action in the nature of certiorari, that action should be brought and adjudicated promptly. Given this, we have indicated the need for similar dispatch in the one-off situations, as here, prompting declaratory judgment actions. See SEIU I, 469 Mass. at 337 n.12.
Ordinarily, we would expect that a union challenging an agency’s decision to forgo Pacheco Law review for alleged privatization contracts would bring a declaratory judgment action promptly after the agency’s decision becomes public informa-
To the extent that suit cannot reasonably be brought until the contract is already in place, and in the presumably rare instances where the initial privatization contract is of such short duration that its renewal may take effect before the case is adjudicated, the result of a determination that the initial agreement is in fact a privatization agreement will be to declare such a contract invalid and thereby void and to set aside any renewal contracts made pursuant to it. Timeliness issues for laches purposes are, of necessity, to be decided on a case-by-case basis, with the guiding principle being fairness; parties must not sit on their hands. See, e.g., West Broadway Task Force v. Boston Hous. Auth., 414 Mass 394, 400 (1993) (laches operates where there is “unreasonable delay”).
As discussed, the case before us is sui generis in this regard. The union brought this suit in the absence of an express statutory remedy and after having made reasonable, if ultimately fruitless and time-consuming, administrative efforts to challenge the initial contracts. In the face of this challenge to the validity of the agreements, the agency exercised its rights under them to renew. In these unusual circumstances, it appears that the union did not sit on its hands.
To construe § 53 as barring the union from seeking to set aside the extant renewal contracts as the byproduct of a declaration as to the invalidity of the initial contracts would contravene the statutory mandate that noncompliance with its requirements has significant repercussions. It would also, in these circumstances, render meaningless the timely challenge brought to the agency’s decision not to submit the 2009 contract to the Auditor, in essence inoculating the agency from review and allowing it to evade the Pacheco Law with impunity by virtue of the passage of time. As
“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, confounding the Legislature’s efforts to ensure that privatization does not occur at the expense of public welfare.”
Here, as in SEIU I, DMH urges an interpretation of the Pacheco Law which would insulate potential privatization contracts from the very review that the law mandates. We do not believe the Legislature contemplated such a result.
3. Conclusion. The judgment dismissing the amended complaint is vacated, and the matter is remanded for further proceedings consistent with this opinion. Given the many delays that already have occurred, and the 2017 expiration of the extant renewal contracts, such further proceedings are to take place forthwith on an expedited basis.
So ordered.