10 Mass. App. Ct. 404 | Mass. App. Ct. | 1980
Pursuant to G. L. c. 214, § 1, c. 231A, § 1, and c. 40, § 53, the plaintiffs brought an action in the Superior Court seeking declaratory and injunctive relief against the defendants. The plaintiffs allege that the mayor is acting in violation of pertinent portions of a 1979 ordinance by employing more than thirty non-civil service employees in his office and by paying them salaries in excess of
The Legislature has granted to the mayor the sole power of the appointment and removal of certain employees in his office. Statute 1909, c. 486, § 15, provides in pertinent part: “The civil service laws shall not apply to the appointment of the mayor’s secretaries, nor of the stenographers, clerks, telephone operators and messengers connected with his office, and the mayor may remove such appointees without a hearing and without making a statement of the cause for their removal.” In April of 1979 the city council enacted over the mayor’s veto, see St. 1948, c. 452, § 17D, as amended by St. 1951, c. 376, § 1, an ordinance pertaining to the same matter as that treated in § 15. City of Boston Code, Ord. 2 § 361 (1979), states in applicable part: “nor shall the mayor, unless authorized to do so by ordinance, appoint or incur expenses to the city for more than thirty non-civil service persons connected with his office as administrative assistants, secretaries, stenographers, clerks, telephone operators or messengers, no more than twelve of whom shall be administrative assistants; nor shall the compensation of any of such [specified employees] be established or changed except by ordinance.” In addition, the ordinance sets out a schedule of maximum salaries for the various established classes of employees, and it purports to abolish all non-civil service positions in the mayor’s office in excess of thirty.
The question presented is whether these portions of the ordinance derogate from St. 1909, c. 486, § 15. “[A] municipal ordinance cannot prevail over or supersede a statute, and the ordinance is invalid, where the ordinance and statute relate to a matter that is fully, exclusively and validly covered by the statute.” 6 McQuillin, Municipal Corporations § 21.34 (3d ed. 1980). See generally Doherty v.
“The establishment of salaries of municipal officers and employees is an act that is legislative in nature and may be exercised by the Legislature itself, or entrusted to the legislative branch of the city government, or delegated to the board or officer who appoints them or to some other board or officer.” Quinlan v. Cambridge, 320 Mass. 124, 126 (1946), and cases there cited. Our review of St. 1909, c. 486, leads us to conclude that the Legislature, in creating the administrative framework for the government of Boston, delineated clear spheres of activities to be exercised by the separate branches of municipal authority. There is nothing in § 15 which even suggests that the Legislature in
Further, we cannot agree that the ordinance neither detracts from nor conflicts with the mayor’s statutory privileges because it merely imposes outer limits upon his powers. As a practical and realistic matter, these outer limits defeat the intent and objective of § 15, which are to give the mayor employment prerogatives, restricted only by budgetary action (see note 3, supra) in performing his executive duties.
The plaintiffs also argue that the city council was empowered by G. L. c. 41, § 108A, to enact the ordinance.
The disputed portions of the ordinance are an invalid interference with the mayor’s exclusive powers delegated to him by the Legislature. In light of our conclusion, it is unnecessary to consider the parties’ remaining contentions concerning the validity of the ordinance.
Judgment affirmed.
Statute 1941, c. 604, § 1, contains the relevant provision concerning the city council’s appropriation powers: “ The city council may reduce or reject any [budget] item, but, except upon the recommendation of the mayor, shall not increase any item in, nor the total of, a budget, nor add any item thereto, nor shall it originate a budget. Not later than the first Monday in [October] the city council shall take definite action on the annual budget by adopting, reducing or rejecting it, and in the event of their failure so to do the items and the appropriation orders in the budget as recommendated by the mayor shall be in effect as if formally adopted by the city council and approved by the mayor.”
Section 108A, as appearing in St. 1948, c. 351, provides in pertinent part: “A city by ordinance . . . may establish, and . . . amend, a plan classifying any or all positions [with exceptions not here applicable] . . . into groups and classes doing substantially similar work or having substantially equal responsibilities. Such city . . . may in like manner or . . . by vote of the city council, subject to the provisions of its charter . . . establish, and . . . amend, a plan establishing minimum and maximum salaries to be paid to employees in positions so classified.”