WEBVTT
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SJC13412.
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Fairhaven Housing Authority, the Commonwealth.
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Okay, Attorney Randazzo.
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Good morning, Chief Justice Budd,
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Honorable Justices, may it please the court.
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My name is Michele Randazzo for the plaintiffs-appellants,
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Fairhaven Housing Authority and others.
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With the court's permission for consistency
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with the party's briefing in this matter,
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I will continue to refer to the agency as DHCD as opposed
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to its current title
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of Executive Office of Housing and Livable Communities.
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Thank you.
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How far is too far Your Honors?
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That's the case that we posit is presented in this case.
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Court well knows that administrative agencies only have
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as much authority as the legislature
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gives to it, and no more.
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And the courts routinely serve as the gatekeepers
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against administrative agency overreach,
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thus inherent in almost every legal challenge
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to regulations, rules, policies, guidelines,
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challenges to administrative agency action in that regard.
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When does the agency cross the line
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between what the legislature
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has delegated to it as authority?
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That's inherent in every case-
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So here, the legislature has delegated the authority
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to strike contract provisions that do not conform
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to the guidelines.
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Why is that not clear?
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We're not saying that's not clear, Your Honor.
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Here's our read of Section 7A.
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First off, it's three sentences long.
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The first sentence says, "The agency shall promulgate
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guidelines for executive director employment contracts."
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Prior to the adoption of this statute,
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DHCD had its own regulation.
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That said, if a housing authority and an executive director
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shall enter into an employment agreement,
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DHCD shall prove and shall set standards
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for the guidelines for the standards of such approval.
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What existed, therefore,
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at the time that the legislature enacted Section 7A
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were exactly what we call guidelines, parameters,
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minimum qualifications,
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minimum hours of work, salary ranges.
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And the legislatures
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considered to have known that landscape when it directed-
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That didn't work very well, right?
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Because we had-
Exactly.
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We had the disaster where someone, I can't remember,
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he was making, you know,
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three or four times the amount he was supposed to make
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and it was all hidden, right?
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Exactly, Your Honor.
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That is exactly the point.
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And our read of Section 7A
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is that it was a mandate to DHCD to do better,
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not necessarily to go beyond and actually do what it did.
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And I'll talk about the substance in a minute,
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but guidelines don't have the force of laws regulations,
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we all know that.
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As this court said, in the main opinion,
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and I think more forcefully in justice bots
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for its concurrence in global naps,
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agency guidelines can't create or impose obligations
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beyond what the statute affords.
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Unless the statute intends and it does.
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So that's what the intent of 7A was.
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So put aside for a minute,
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the internal management exception issue on regulations,
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and I know you'll get to it,
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but just put it aside for a second.
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What you've got is you've got 7A drafted
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knowing about section seven, and you've got
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the issue that happened in Chelsea.
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So why can't the legislature decide to delegate
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to the agency that they are going to deal with salary
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at the local housing authority
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through not regulations, but guidelines?
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And that the delegation gives the agency
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the ability to do that.
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We don't disagree with that, Your Honors,
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what we do disagree with
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is how far those quote unquote "guidelines" went.
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And we think that that's one of the fundamental flaws
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with the lower court's dismissal of this case,
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so that there's no apparent review
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of those actual guidelines.
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And I think it's very important we've included them
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in the addendum to show exactly what it
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is that these guidelines purport to do.
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How do the guidelines go beyond the authority?
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I don't, can you just identify that?
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Absolutely, they dictate every single term
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of an employment contract.
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They've drafted an employment contract.
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So what term are you concerned about that's dictated?
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Okay, so there's several terms
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and I will first start off with-
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Give me one, any.
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Mandatory arbitration for any dispute under the contract.
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Where is the authority for that under section 7A.
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Precluding agents, precluding precluding executive directors
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from receiving benefits that they had received
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or that their other employees receive
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from either throughout their tenure
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or as part of a negotiated contract
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prior to the enactment of chapter 235 of the Acts of 2014-
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Now, how is mandatory arbitration, just to stick with one,
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violate 7A? Okay.
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First off, it is not a term that deals with remuneration
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and our view of Section 7A
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is that is the focus of section 7A.
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Where does it say that in 7A?
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The second sentence says, "DHCD shall may review
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all employment contracts funded with state dollars,
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but shall review all contracts
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worth more than $100,000 dollars per annum.
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But where does it limit the authority to only issue
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guidelines with regard to remuneration?
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So again, as was mentioned by Justice Kafker.
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The prelude, if you will, to the legislative amendment.
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No, I'm just sticking with the text for now,
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and then you can get to the (indistinct) later.
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But where in the text of 7A does it say that the agency
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is limited to promulgating guidelines
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that deal with remuneration?
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Those two words are not in the same sentence together.
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So let's go back to your example
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on mandatory arbitration, how does that violate the 7A?
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Because under section seven,
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the board of commissioners of any housing authority
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have the authority to determine
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the terms and conditions of employment,
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including the choices to whether or not
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to even enter into an employment contract at all.
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Mandatory arbitration, for example,
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and you know, this isn't before you on the record
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because this was dismissed on a motion to dismiss,
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but something like that is a policy decision
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by any public sector employer as to whether or not
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it was choose to negotiate that term
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with an incoming or a continuing executive director
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from a employer perspective,
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and I represent public sector employers
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all across the state, I'd never agree to that.
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And there's policy reasons why.
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This is a different animal
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in the sense that we've got going
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all the way back to the 1970s,
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the Medford Housing Authority and West Broadway
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and the nature of the relationship between the housing
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and development and the local housing agencies.
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We of course, acknowledge the pronouncements of this court
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from the 1970s, both in the West Broadway Task Force case
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and the Medford Housing Authority case.
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But I think they also have to be looked
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critically in context.
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Those cases cited to specific statutory provisions of 121B
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as well as regulations that delineated
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the different types of authorities in coming
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to the conclusion that this agency has oversight authority.
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But similar to the Department of Education
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and elementary and secondary education,
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they have broad oversight authority over schools,
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but school districts are not arms of the state entity
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and neither are local housing authorities arms of DHCD.
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But the first sentence is so specific in 7A.
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"DHCD shall promulgate guidelines for contracts
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to be executed by the LHA and an executive director."
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I mean, that's very,
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and we know it's passed in response to basically
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cute contracting with executive directors.
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Then the third sentence provided however,
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shall review all contracts and all terms for payments
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or monetary renumeration worth more than 100,000 again.
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And then you got the killer sentence
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may strike contract provisions that do not conform
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to the guidelines.
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I mean, it's hard to be more specific than that.
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So to that point, Your Honor,
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certainly, if under the guidelines that existed
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prior to the challenge guidelines here,
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there were salary ranges based on housing authority size.
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But that didn't work.
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But that clearly was avoided.
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And the legislature and everyone else
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was embarrassed by that.
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So they tightened the noose.
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And that's...
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Legislative history I think could show not only that,
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but who was the focus of that tightening the noose.
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Executive director, executive directors.
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I disagree, Your honors,
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I would say that it was in fact DHCD to pay more attention
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where they had already previously,
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had that authority and a record if developed, which again,
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this was on a motion to dismiss might show that in fact,
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executive director contracts were submitted to the agency
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and routinely, or at least not infrequently,
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not acted upon for years, if ever.
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But they were blown by them.
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Because the guidelines weren't specific enough before
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that this Chelsea Housing Executive Director agreement
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slipped through and no one noticed it.
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Affirmative criminal misconduct for which he was jailed.
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So it's a one bad apple in the bunch.
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I get it.
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But then they said, "We're gonna err on the other side.
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We're gonna police this really carefully."
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And then we go to how far is too far?
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Well counsel, if the provision that Justice Kafker
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just read to you said, shall promulgate regulations,
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would you have anything to say?
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Would you just lose?
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Well, if they were promulgate,
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our position is that if they wanted to go
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as far as they did, at a minimum,
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those would've had to have been promulgated as regulations.
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You need the word regulation.
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Yes.
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And then in conformance of 30A.
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Absolutely.
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Absolutely, Your Honors.
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Because this court has well recognized the value
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of the public notice and comment period.
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'Cause it involves the public, right?
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The 30A regulations deal with matters
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that aren't just purely internal, right?
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The AG's brief makes that point pretty clearly,
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and it takes a huge amount of time
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to get through the regulatory process
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or at least some amount of time.
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And this was an emergency
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and they could pass the guidelines right away.
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And they weigh internal matters isn't well again,
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that within the power of the legislature to do that.
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Just a couple of factual points.
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These guidelines were not passed right away.
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It was almost 2 1/2 years after the legislation was passed.
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They were changed repeatedly when it was drawn
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to their attention that at least one of the provisions
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that they had in this mandatory contract
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violated other provisions of state law.
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Who addressed the part about the internal aspects of this?
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So I think that that's the key
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as to whether or not 30A applies.
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And that argument of course,
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was just raised at this point, was not raised below and-
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So is it your position that's not proper before us?
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I think that it would require more fact finding
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as this court has said before,
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that various pieces that go into an analysis
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of whether or not something
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is in fact internal management requires,
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I would say, more facts than what you have
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on the record before you right now.
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In order to accept that argument,
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respectfully, Your Honors, you'd have to accept
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the notion that local housing authorities
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and their executive directors
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who are constituted under statutory scheme,
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elected in most instances by the populace of the community
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in which they serve,
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that those people are essentially arms of DHCD and-
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00:12:47.400 --> 00:12:49.080
No, they're the opposite actually.
269
00:12:49.080 --> 00:12:51.820
They have such independent political power
270
00:12:53.910 --> 00:12:56.100
that you need a countervailing force
271
00:12:56.100 --> 00:12:58.263
to monitor and regulate them.
272
00:13:00.420 --> 00:13:03.180
Isn't that what happened in Chelsea?
273
00:13:03.180 --> 00:13:08.180
He had a power base and that's fairly common
274
00:13:08.520 --> 00:13:10.020
for these executive directors, right?
275
00:13:10.020 --> 00:13:13.830
They're political figures from each town often,
276
00:13:13.830 --> 00:13:17.130
and they were concerned about how much power they had
277
00:13:17.130 --> 00:13:19.200
and they needed to be regulated.
278
00:13:19.200 --> 00:13:21.150
I'd suggest that we don't have that on the record
279
00:13:21.150 --> 00:13:23.040
before you and I would have any number
280
00:13:23.040 --> 00:13:25.560
of small housing authority
281
00:13:25.560 --> 00:13:28.800
executive directors testified to the exact opposite
282
00:13:28.800 --> 00:13:30.540
if we were in that position.
283
00:13:30.540 --> 00:13:31.830
But I think, again,
284
00:13:31.830 --> 00:13:36.000
our main point is guidelines are guidelines.
285
00:13:36.000 --> 00:13:38.742
The common sense usage of the word is not.
286
00:13:38.742 --> 00:13:39.960
What is the guideline
287
00:13:39.960 --> 00:13:44.756
that the agency can strike provisions that do not comply
288
00:13:44.756 --> 00:13:46.410
with the guidelines?
289
00:13:46.410 --> 00:13:48.645
So perfect example, Your Honor is,
290
00:13:48.645 --> 00:13:49.478
"Here's our salary range.
291
00:13:49.478 --> 00:13:50.610
If you are a housing authority."
292
00:13:50.610 --> 00:13:53.280
If I say the guideline is a maximum
293
00:13:53.280 --> 00:13:55.830
of, you know, I don't know, 198,000?
294
00:13:55.830 --> 00:13:58.740
Right, and in fact.
That would be okay.
295
00:13:58.740 --> 00:14:03.000
Yes, I mean, look, four years, I will acknowledge that-
296
00:14:03.000 --> 00:14:05.430
What if my guideline was,
297
00:14:05.430 --> 00:14:08.340
I'd like these things to be arbitrated?
298
00:14:08.340 --> 00:14:10.950
I disagree.
Disagree with what?
299
00:14:10.950 --> 00:14:12.780
The idea that that is permissible
300
00:14:12.780 --> 00:14:13.971
within the set of guidelines.
301
00:14:13.971 --> 00:14:16.980
So tell me why that one doesn't work.
302
00:14:16.980 --> 00:14:20.250
Why can't I have a guideline that says arbitration,
303
00:14:20.250 --> 00:14:21.600
that's what I want.
304
00:14:21.600 --> 00:14:23.160
And then you show me a contract
305
00:14:23.160 --> 00:14:24.420
that doesn't have arbitration.
306
00:14:24.420 --> 00:14:26.190
And I look at 7A and I say, look,
307
00:14:26.190 --> 00:14:28.500
I have the authority to strike contract positions
308
00:14:28.500 --> 00:14:31.020
that do not comply with my guidelines.
309
00:14:31.020 --> 00:14:33.630
So I'm gonna strike that one that says no arbitration.
310
00:14:33.630 --> 00:14:35.880
First off, the department is not,
311
00:14:35.880 --> 00:14:38.160
and I don't think that they would argue to be,
312
00:14:38.160 --> 00:14:40.290
have any particular expertise
313
00:14:40.290 --> 00:14:43.710
in the field of public employment contracts, number one.
314
00:14:43.710 --> 00:14:48.710
Number two, the terms that they are asking to include,
315
00:14:49.020 --> 00:14:51.270
well go beyond guidelines.
316
00:14:51.270 --> 00:14:53.490
They've mandated, for example,
317
00:14:53.490 --> 00:14:57.450
that executive directors must be fired
318
00:14:57.450 --> 00:14:59.520
in certain delineated circumstances.
319
00:14:59.520 --> 00:15:01.710
And that in fact, the employment agreement,
320
00:15:01.710 --> 00:15:03.600
this is the language they require,
321
00:15:03.600 --> 00:15:05.760
that the employment agreement will terminate
322
00:15:05.760 --> 00:15:09.150
upon a conviction of any misdemeanor or felony,
323
00:15:09.150 --> 00:15:11.550
regardless of whether it's attached
324
00:15:11.550 --> 00:15:15.030
to the executive director's employment.
325
00:15:15.030 --> 00:15:19.800
The issue though is what guidelines means in this statute.
326
00:15:19.800 --> 00:15:23.190
And when the legislature passed 7A,
327
00:15:23.190 --> 00:15:26.880
they were aware of the APA
328
00:15:26.880 --> 00:15:30.360
and didn't use the word regulations.
329
00:15:30.360 --> 00:15:32.910
And that has significance, Your Honor.
330
00:15:32.910 --> 00:15:37.910
I mean, there's not a case that that the agency has cited,
331
00:15:38.820 --> 00:15:42.240
nor am I aware of any particular case that says,
332
00:15:42.240 --> 00:15:45.840
because it's easier for an agency to more fluidly,
333
00:15:45.840 --> 00:15:50.840
I think as they characterize it to adopt guidelines
334
00:15:51.240 --> 00:15:53.070
that therefore means that those guidelines
335
00:15:53.070 --> 00:15:56.040
can say whatever the agency wants
336
00:15:56.040 --> 00:15:58.320
precisely because it's easier for them
337
00:15:58.320 --> 00:15:59.400
to do it on the fly.
338
00:15:59.400 --> 00:16:03.870
Could you quickly just address the internal management
339
00:16:03.870 --> 00:16:08.550
and exception for discipline exception
340
00:16:08.550 --> 00:16:10.800
and how Commonwealth versus Tuttle
341
00:16:10.800 --> 00:16:14.996
and the sobriety stop points
342
00:16:14.996 --> 00:16:17.970
are somehow different than this situation?
343
00:16:17.970 --> 00:16:20.190
Again, and of course,
344
00:16:20.190 --> 00:16:22.140
this court knows that there's sparse case law
345
00:16:22.140 --> 00:16:24.090
in this internal management exemption.
346
00:16:24.090 --> 00:16:26.100
I don't think that the analogs to federal cases
347
00:16:26.100 --> 00:16:29.281
is particularly helpful because the wording is more precise.
348
00:16:29.281 --> 00:16:34.281
But those cases involved efforts by state agencies
349
00:16:34.530 --> 00:16:38.340
to regulate those people, their employees, their personnel.
350
00:16:38.340 --> 00:16:40.770
But the public's being stopped at the sobriety,
351
00:16:40.770 --> 00:16:44.366
stop points in total.
352
00:16:44.366 --> 00:16:47.584
Because I think Trumble maybe?
353
00:16:47.584 --> 00:16:51.360
I think that the issue there was directing
354
00:16:51.360 --> 00:16:54.180
the state troopers on how they perform
355
00:16:54.180 --> 00:16:56.220
a function that they'd already performed.
356
00:16:56.220 --> 00:16:59.970
And it was giving more definition, if you will,
357
00:16:59.970 --> 00:17:02.220
into how they performed their duties.
358
00:17:02.220 --> 00:17:03.840
These were state troopers,
359
00:17:03.840 --> 00:17:05.700
these were folks that worked for the state,
360
00:17:05.700 --> 00:17:08.460
for the agency that promulgated the regulations at issue.
361
00:17:08.460 --> 00:17:10.890
It's very clear that local housing authorities
362
00:17:10.890 --> 00:17:13.980
and their executive directors are separate legal entities.
363
00:17:13.980 --> 00:17:15.870
They are not arms from the state.
364
00:17:15.870 --> 00:17:18.060
And again, we respectfully request
365
00:17:18.060 --> 00:17:21.150
this court critically look at what is framed as guidelines
366
00:17:21.150 --> 00:17:22.800
because they aren't guidelines,
367
00:17:22.800 --> 00:17:26.340
they're mandates and mandates that go to such an extreme
368
00:17:26.340 --> 00:17:28.470
that they ought to have been at a minimum promulgated
369
00:17:28.470 --> 00:17:30.420
as formal regulations.
370
00:17:30.420 --> 00:17:31.530
There's no other questions.
371
00:17:31.530 --> 00:17:32.363
Thank you, Your Honor.
372
00:17:32.363 --> 00:17:33.430
Thank you, Your Honors.
373
00:17:34.980 --> 00:17:36.230
Okay. Attorney Haskell.
374
00:17:46.494 --> 00:17:47.760
Thank you, Chief Justice Budd,
375
00:17:47.760 --> 00:17:50.070
and may it please the court.
376
00:17:50.070 --> 00:17:53.970
We would make two basic broad points in this appeal.
377
00:17:53.970 --> 00:17:56.860
One is that what the department has done
378
00:17:58.290 --> 00:17:59.820
in the public housing notices
379
00:17:59.820 --> 00:18:01.950
that are at issue here is fully consistent
380
00:18:01.950 --> 00:18:04.920
with Section 7A and what the legislature intended
381
00:18:04.920 --> 00:18:08.430
for the department to do when it enacted Section 7A.
382
00:18:08.430 --> 00:18:09.330
And then second,
383
00:18:09.330 --> 00:18:12.560
what the department has done is consistent with chapter 30A
384
00:18:12.560 --> 00:18:15.090
in the Administrative Procedure Act.
385
00:18:15.090 --> 00:18:19.865
As to section 7A, it does come down
386
00:18:19.865 --> 00:18:22.350
to the terms of the statute that we've already
387
00:18:22.350 --> 00:18:24.150
spoken about during this argument.
388
00:18:24.150 --> 00:18:27.480
First sentence of section 7A provides the department
389
00:18:27.480 --> 00:18:30.480
shall promulgate guidelines for contracts.
390
00:18:30.480 --> 00:18:33.480
It doesn't say guidelines relating to remuneration terms
391
00:18:33.480 --> 00:18:36.570
of contracts or any other particular terms.
392
00:18:36.570 --> 00:18:38.370
Guidelines for contracts.
393
00:18:38.370 --> 00:18:42.750
And we know that that is intended to mean contractual terms
394
00:18:42.750 --> 00:18:46.320
beyond just compensation from a statute that was enacted
395
00:18:46.320 --> 00:18:49.320
at the same time as part of the same legislation,
396
00:18:49.320 --> 00:18:54.320
specifically chapter 121B, section 26B, subsection D,
397
00:18:55.710 --> 00:18:58.860
the very last sentence of that statute
398
00:18:58.860 --> 00:19:01.980
as part of the same housing reform, or excuse me,
399
00:19:01.980 --> 00:19:05.280
housing authority reform legislation in 2014,
400
00:19:05.280 --> 00:19:09.570
the legislature created a program supervised by DHCD
401
00:19:09.570 --> 00:19:13.570
to identify and correct chronically poor performing
402
00:19:14.940 --> 00:19:16.642
housing authorities, including-
403
00:19:16.642 --> 00:19:20.190
They're not saying you can't promulgate guidelines.
404
00:19:20.190 --> 00:19:21.750
They're just saying that if you wanna go
405
00:19:21.750 --> 00:19:23.010
as far as you are going,
406
00:19:23.010 --> 00:19:26.790
you need regulations that comply with 30A.
407
00:19:26.790 --> 00:19:29.730
Well, and again, I think as I understand
408
00:19:29.730 --> 00:19:33.120
Ms. Randazzo, I may be misunderstanding it.
409
00:19:33.120 --> 00:19:35.040
As I understand Ms. Randazzo argument,
410
00:19:35.040 --> 00:19:38.010
she seems to be arguing that where Section 7A
411
00:19:38.010 --> 00:19:40.860
says guidelines for contracts,
412
00:19:40.860 --> 00:19:43.320
there's some subject matter restriction in there,
413
00:19:43.320 --> 00:19:47.640
guidelines for these parts of contracts, but not others.
414
00:19:47.640 --> 00:19:50.400
And what I would direct the court's attention to
415
00:19:50.400 --> 00:19:54.727
is that very last sentence of 121B, section 26B.
416
00:19:56.370 --> 00:19:59.850
What that says is that under certain circumstances,
417
00:19:59.850 --> 00:20:02.970
the department is authorized to terminate the employment
418
00:20:02.970 --> 00:20:05.580
of an executive director in accordance
419
00:20:05.580 --> 00:20:10.320
with that person's employment agreement with the authority
420
00:20:10.320 --> 00:20:11.940
as approved by the department.
421
00:20:11.940 --> 00:20:15.480
What that last sentence of section 26B indicates,
422
00:20:15.480 --> 00:20:17.765
what it contemplates is that executive director
423
00:20:17.765 --> 00:20:21.330
employment contracts that are approved by the department
424
00:20:21.330 --> 00:20:23.370
are going to have a termination clause
425
00:20:23.370 --> 00:20:26.220
and therefore suggests that the legislature
426
00:20:26.220 --> 00:20:29.709
envisioned the scope of the guidelines
427
00:20:29.709 --> 00:20:31.620
under Section 7A as not being limited
428
00:20:31.620 --> 00:20:34.410
to just compensation or remuneration.
429
00:20:34.410 --> 00:20:37.890
Rather, section 7A ought to be taken at face value
430
00:20:37.890 --> 00:20:38.970
at its plain language.
431
00:20:38.970 --> 00:20:41.340
Guidelines for contracts means guidelines
432
00:20:41.340 --> 00:20:44.010
for all aspects of contracts.
433
00:20:44.010 --> 00:20:45.210
I'm assuming we agree with that.
434
00:20:45.210 --> 00:20:49.680
It does not limit it to a particular aspect of the contract.
435
00:20:49.680 --> 00:20:51.540
Why doesn't guidelines mean something
436
00:20:51.540 --> 00:20:55.440
other than rules or regulations?
437
00:20:55.440 --> 00:20:56.273
Sure.
438
00:20:57.840 --> 00:21:00.330
Guidelines, as we know,
439
00:21:00.330 --> 00:21:03.150
unlike regulations, is not a defined term.
440
00:21:03.150 --> 00:21:04.953
The Administrative Procedures Act,
441
00:21:06.300 --> 00:21:09.600
we really have two reasons that we would suggest
442
00:21:09.600 --> 00:21:13.800
why this isn't subject to the Administrative Procedures Act,
443
00:21:13.800 --> 00:21:17.970
because it falls under the rubric of rules and regulations.
444
00:21:17.970 --> 00:21:21.390
One is that the Administrative Procedures Act, chapter 30A,
445
00:21:21.390 --> 00:21:25.830
has been on the books for 70 years, the mid 1950s.
446
00:21:25.830 --> 00:21:28.560
The legislature knew it was there when it enacted
447
00:21:28.560 --> 00:21:32.550
section 7A and chose in section 7A
448
00:21:32.550 --> 00:21:34.410
to say something different.
449
00:21:34.410 --> 00:21:37.140
Guidelines that we know from the last sentence
450
00:21:37.140 --> 00:21:39.270
of Section 7A are gonna be enforceable
451
00:21:39.270 --> 00:21:41.760
because the department is going to strike contracts
452
00:21:41.760 --> 00:21:43.950
that don't comply with guidelines-
453
00:21:43.950 --> 00:21:45.540
But when they do that,
454
00:21:45.540 --> 00:21:48.750
when they add the last sentence to the first sentence,
455
00:21:48.750 --> 00:21:51.570
do they convert guidelines basically into regulations
456
00:21:51.570 --> 00:21:53.733
without going through the APA?
457
00:21:54.720 --> 00:21:55.740
Our view, Your Honor,
458
00:21:55.740 --> 00:21:58.290
is that the better way to view Section 7A
459
00:21:58.290 --> 00:22:03.030
and the way to really harmonize the entirety of Section 7A
460
00:22:03.030 --> 00:22:04.470
with the APA.
461
00:22:04.470 --> 00:22:06.570
That what the legislature intended to do here was create
462
00:22:06.570 --> 00:22:09.060
an exception to the Administrative Procedures Act.
463
00:22:09.060 --> 00:22:11.793
What the legislature here is authorizing the-
464
00:22:13.232 --> 00:22:15.630
I mean, normally they do notwithstanding any spec
465
00:22:15.630 --> 00:22:18.483
or to the contrary, we do this,
466
00:22:19.350 --> 00:22:21.951
they kind of don't do that here.
467
00:22:21.951 --> 00:22:24.090
It's a little odd, right?
468
00:22:24.090 --> 00:22:25.080
I'm sorry, say that again.
469
00:22:25.080 --> 00:22:29.340
I mean, when the legislature tends to create exceptions,
470
00:22:29.340 --> 00:22:31.050
they have ways of doing it, right?
471
00:22:31.050 --> 00:22:32.880
They write notwithstanding any other general
472
00:22:32.880 --> 00:22:34.560
or special audit of the contrary.
473
00:22:34.560 --> 00:22:38.400
Here, you're saying they're creating an exception
474
00:22:38.400 --> 00:22:39.233
to the APA.
475
00:22:39.233 --> 00:22:40.780
but they don't say they're doing that.
476
00:22:41.850 --> 00:22:43.380
I understand that.
477
00:22:43.380 --> 00:22:44.550
I hear that, Your Honor,
478
00:22:44.550 --> 00:22:47.550
I don't think that's the only way that the legislature
479
00:22:47.550 --> 00:22:50.310
can create an exception to a preexisting statute
480
00:22:50.310 --> 00:22:51.510
and where the ordinary-
481
00:22:51.510 --> 00:22:53.940
Is there anything like this anywhere else?
482
00:22:53.940 --> 00:22:57.330
It seems like it's idiosyncratic.
483
00:22:57.330 --> 00:22:58.740
I have to confess, Your Honor,
484
00:22:58.740 --> 00:23:03.740
I can't point the court to a statute that displays
485
00:23:04.140 --> 00:23:06.330
these same features the same way this one does.
486
00:23:06.330 --> 00:23:07.798
And of course,
487
00:23:07.798 --> 00:23:10.440
part of the reason for that is this really,
488
00:23:10.440 --> 00:23:11.880
I don't wanna call it unique,
489
00:23:11.880 --> 00:23:15.900
but this really well developed background context
490
00:23:15.900 --> 00:23:18.180
of the relationship between DHCD
491
00:23:18.180 --> 00:23:19.830
and local housing authorities.
492
00:23:19.830 --> 00:23:23.100
Section 7A was enacted against the backdrop
493
00:23:23.100 --> 00:23:27.060
of you know, West Broadway, Medford Housing Authority,
494
00:23:27.060 --> 00:23:32.060
this very, very robust oversight role for DHCD.
495
00:23:32.173 --> 00:23:33.810
As we argue in our brief,
496
00:23:33.810 --> 00:23:36.450
our view is that the best way to understand
497
00:23:36.450 --> 00:23:39.330
what the legislature was trying to do in section 7A
498
00:23:39.330 --> 00:23:44.330
is force DHCD to wield this authority to review
499
00:23:45.690 --> 00:23:48.330
and strike contracts more vigorously.
500
00:23:48.330 --> 00:23:50.910
And also through the use of guidelines
501
00:23:50.910 --> 00:23:54.180
as opposed to regulations, give the department the ability
502
00:23:54.180 --> 00:23:57.240
to do it with some more flexibility, some more nimbleness.
503
00:23:57.240 --> 00:23:59.880
If executive directors start engaging
504
00:23:59.880 --> 00:24:01.320
in some sort of malfeasance
505
00:24:01.320 --> 00:24:03.660
that nobody had really imagined before,
506
00:24:03.660 --> 00:24:04.770
the department has the ability
507
00:24:04.770 --> 00:24:08.310
to change its guidelines promptly and address that squarely.
508
00:24:08.310 --> 00:24:10.950
I know, but promulgate guidelines, first of all,
509
00:24:10.950 --> 00:24:13.980
they used the word promulgate and there's no doubt
510
00:24:13.980 --> 00:24:17.280
that 7A contemplates that seven exists,
511
00:24:17.280 --> 00:24:21.210
and that you've got that Chelsea Housing Authority backdrop.
512
00:24:21.210 --> 00:24:26.210
But what is it about the text of 7A that says the APA
513
00:24:27.840 --> 00:24:32.840
and 30A is out for such a broad range of terms?
514
00:24:35.400 --> 00:24:37.560
It's chiefly, Your Honor,
515
00:24:37.560 --> 00:24:41.610
the use of the word "guidelines" juxtaposed
516
00:24:41.610 --> 00:24:44.370
with the express authority in that third sentence
517
00:24:44.370 --> 00:24:47.610
that indicates the guidelines are going to be,
518
00:24:47.610 --> 00:24:48.660
they're going to be mandatory,
519
00:24:48.660 --> 00:24:51.583
they're gonna be binding housing authorities
520
00:24:51.583 --> 00:24:52.470
are gonna have to comply with them.
521
00:24:52.470 --> 00:24:54.990
Guidelines just kind of relies on the notion
522
00:24:54.990 --> 00:24:58.350
that when the legislature chooses a word,
523
00:24:58.350 --> 00:25:01.050
different words have different meanings in the statute.
524
00:25:01.050 --> 00:25:04.560
Guidelines suggest something different than regulations.
525
00:25:04.560 --> 00:25:07.620
We know that in fact, in another section, 120-
526
00:25:07.620 --> 00:25:08.483
But isn't that a problem for you?
527
00:25:08.483 --> 00:25:13.483
Because here, the agency has promulgated rules,
528
00:25:15.480 --> 00:25:18.700
like you must have a mandatory arbitration provision
529
00:25:20.070 --> 00:25:22.173
in your contracts with your EDs.
530
00:25:24.750 --> 00:25:27.603
Those don't sound like guidelines.
531
00:25:31.650 --> 00:25:34.875
The way the department reads the word "guidelines,"
532
00:25:34.875 --> 00:25:36.962
And it's as if it's a rule.
533
00:25:36.962 --> 00:25:39.360
And we believe this is the way the legislature intended it
534
00:25:39.360 --> 00:25:41.490
is the difference between guidelines and regulations
535
00:25:41.490 --> 00:25:45.150
isn't the scope or subject matter or content
536
00:25:45.150 --> 00:25:49.080
of what things can be addressed through that pronouncement,
537
00:25:49.080 --> 00:25:52.950
but rather the way that it comes into being regulations,
538
00:25:52.950 --> 00:25:56.220
as we discussed earlier, is a fine term in 30A section one,
539
00:25:56.220 --> 00:25:58.650
if something meets the definition of regulation,
540
00:25:58.650 --> 00:26:01.470
it has to come into being in a certain way
541
00:26:01.470 --> 00:26:03.870
in compliance with 30A.
542
00:26:03.870 --> 00:26:06.240
That's why the legislature chose the word guidelines.
543
00:26:06.240 --> 00:26:09.143
And if the court, you can see the statute site in our brief-
544
00:26:09.143 --> 00:26:11.730
Thought your argument was better the other way,
545
00:26:11.730 --> 00:26:16.730
which its guidelines for executive director contracts.
546
00:26:18.060 --> 00:26:23.060
That's not sort of a traditional area of regulation
547
00:26:23.190 --> 00:26:25.290
where you go through a 30A process.
548
00:26:25.290 --> 00:26:30.290
'cause the public, you know, is super concerned about it.
549
00:26:31.200 --> 00:26:34.560
You're basically dealing with executive director contracts
550
00:26:34.560 --> 00:26:38.640
in response to a well pronounced problem, which is Chelsea,
551
00:26:38.640 --> 00:26:39.993
it was a disaster.
552
00:26:40.950 --> 00:26:44.820
I mean, isn't that, I understand it's idiosyncratic,
553
00:26:44.820 --> 00:26:48.390
but the guidelines are connected to something narrow,
554
00:26:48.390 --> 00:26:50.490
which is executive director contracts.
555
00:26:50.490 --> 00:26:55.200
It's not like you're passing regulations for the entire way
556
00:26:55.200 --> 00:26:58.170
that the housing authority conducts its business.
557
00:26:58.170 --> 00:27:00.270
'Cause the public caress a lot about that.
558
00:27:00.270 --> 00:27:03.180
They care about what you're charging for rent
559
00:27:03.180 --> 00:27:04.770
and who gets in.
560
00:27:04.770 --> 00:27:07.503
But how much the executive director gets paid?
561
00:27:09.900 --> 00:27:13.440
It's not really a public problem till it we get to Chelsea.
562
00:27:13.440 --> 00:27:14.670
Let me address that, Your Honor.
563
00:27:14.670 --> 00:27:17.850
It goes to something that I alluded to a little bit earlier
564
00:27:17.850 --> 00:27:20.700
that in our view, there are really two reasons
565
00:27:20.700 --> 00:27:23.670
why the department complied with 30A here.
566
00:27:23.670 --> 00:27:26.490
One is that 30A just plain doesn't apply
567
00:27:26.490 --> 00:27:28.980
because Section 7A creates an exception.
568
00:27:28.980 --> 00:27:30.870
That's what I was speaking about earlier.
569
00:27:30.870 --> 00:27:32.970
But there's another reason and the other reason
570
00:27:32.970 --> 00:27:37.970
is that these guidelines that are contemplated by Section 7A
571
00:27:38.040 --> 00:27:40.530
fall within that internal management's exception
572
00:27:40.530 --> 00:27:44.160
to the definition of regulation under 30A section one.
573
00:27:44.160 --> 00:27:45.990
Is that a fact question?
As Your Honor knows-
574
00:27:45.990 --> 00:27:46.971
I'm sorry?
575
00:27:46.971 --> 00:27:48.000
Is that a fact question?
576
00:27:48.000 --> 00:27:49.590
No, it's not, Your Honor,
577
00:27:49.590 --> 00:27:54.330
because what it really goes to is the nature
578
00:27:54.330 --> 00:27:56.791
of what the pronouncement does.
579
00:27:56.791 --> 00:28:00.420
You know, similar to the way this court and Carrie analyzed
580
00:28:00.420 --> 00:28:03.750
the Department of Correction pronouncement about dog sniffs,
581
00:28:03.750 --> 00:28:05.370
the appeals court, Judge Sachs
582
00:28:05.370 --> 00:28:08.670
recently analyzed that DOC pronouncement about
583
00:28:08.670 --> 00:28:09.697
money transfers.
584
00:28:09.697 --> 00:28:14.040
It's not something that requires fact finding and evidence,
585
00:28:14.040 --> 00:28:17.670
it's just something that requires analysis of the terms
586
00:28:17.670 --> 00:28:20.370
of the agency's authority, in this case,
587
00:28:20.370 --> 00:28:23.610
section 7A and how the scope
588
00:28:23.610 --> 00:28:25.150
of that authority fits
589
00:28:25.150 --> 00:28:29.940
with the definition of regulation under 30A section one.
590
00:28:29.940 --> 00:28:31.440
Under your interpretation,
591
00:28:31.440 --> 00:28:36.440
how can we read section 7A and Section 7A in harmony?
592
00:28:36.872 --> 00:28:37.705
Is that possible?
593
00:28:37.705 --> 00:28:38.538
It is, Your Honor.
594
00:28:38.538 --> 00:28:40.050
And we think that in superior court,
595
00:28:41.378 --> 00:28:44.880
Judge Connolly reached exactly the right harmony there
596
00:28:44.880 --> 00:28:49.470
by reading Section seven to retain housing authorities'
597
00:28:49.470 --> 00:28:51.370
ability to set term sufficient
598
00:28:53.300 --> 00:28:55.350
the terms and conditions qualifications of employment
599
00:28:55.350 --> 00:28:58.800
within the limits imposed by the department
600
00:28:58.800 --> 00:29:02.040
pursuant to its authority under Section 7A.
601
00:29:02.040 --> 00:29:02.873
Now, in fairness,
602
00:29:02.873 --> 00:29:06.570
in some instances like the arbitration clauses,
603
00:29:06.570 --> 00:29:09.180
the department hasn't left any discretion
604
00:29:09.180 --> 00:29:10.650
to local housing authorities.
605
00:29:10.650 --> 00:29:11.483
It's said, "Hey,
606
00:29:11.483 --> 00:29:14.332
you need arbitration clauses in these contracts."
607
00:29:14.332 --> 00:29:16.290
It's a little inconsistent with the shall determine,
608
00:29:16.290 --> 00:29:17.123
I'm sorry?
609
00:29:17.123 --> 00:29:17.956
It's a little inconsistent
610
00:29:17.956 --> 00:29:19.893
with section seven's shall determine.
611
00:29:21.210 --> 00:29:24.300
And I recognize that 7A was meant to reform
612
00:29:24.300 --> 00:29:25.290
the bad old days,
613
00:29:25.290 --> 00:29:28.890
but I'm just wondering what's retained of section seven?
614
00:29:28.890 --> 00:29:30.270
We do think that something,
615
00:29:30.270 --> 00:29:33.330
certainly something is retained under Section seven.
616
00:29:33.330 --> 00:29:36.060
In some particular areas like arbitration clauses,
617
00:29:36.060 --> 00:29:38.790
it may not be that broad,
618
00:29:38.790 --> 00:29:41.460
but in other areas, it certainly is broader.
619
00:29:41.460 --> 00:29:43.023
For instance, compensation.
620
00:29:45.059 --> 00:29:46.950
The DHCD sets maximum compensation.
621
00:29:46.950 --> 00:29:49.530
It doesn't tell local housing authorities
622
00:29:49.530 --> 00:29:51.303
what they need to pay these folks.
623
00:29:52.680 --> 00:29:55.287
And so returning, I guess to-
624
00:29:55.287 --> 00:29:57.420
Can you return to the internal management
625
00:29:57.420 --> 00:30:02.380
and discipline exception and tell us why this is more like
626
00:30:03.303 --> 00:30:06.753
the Commonwealth versus Trumble if I'm saying it correctly,
627
00:30:07.956 --> 00:30:11.240
case dealing with the sobriety checkpoints
628
00:30:11.240 --> 00:30:15.270
as opposed to the prisoner cases in the public
629
00:30:15.270 --> 00:30:16.860
going into the prisons.
630
00:30:16.860 --> 00:30:19.140
The key passage in Trumble, Your Honor,
631
00:30:19.140 --> 00:30:22.710
we believe is where this court wrote that the state police
632
00:30:22.710 --> 00:30:25.380
sobriety checkpoint handbook didn't purport
633
00:30:25.380 --> 00:30:28.590
to directly regulate the conduct of the public.
634
00:30:28.590 --> 00:30:31.710
And that quite squarely describes
635
00:30:31.710 --> 00:30:34.380
what these public housing notices guidelines
636
00:30:34.380 --> 00:30:36.930
for executive director contracts are doing.
637
00:30:36.930 --> 00:30:41.520
They aren't regulating the conduct of the public directly.
638
00:30:41.520 --> 00:30:42.720
And we believe that Trumbull
639
00:30:42.720 --> 00:30:47.720
is on all fours with our position in this case.
640
00:30:47.820 --> 00:30:51.120
We know that matters like contracting
641
00:30:51.120 --> 00:30:54.660
are internal management and fall within the scope
642
00:30:54.660 --> 00:30:55.980
of internal management.
643
00:30:55.980 --> 00:30:57.390
In fact, on that point,
644
00:30:57.390 --> 00:30:59.850
I would direct the court to the associated industries
645
00:30:59.850 --> 00:31:03.780
of Massachusetts case from the 1960s that indicated
646
00:31:03.780 --> 00:31:06.180
that workers' compensation insurance rates
647
00:31:06.180 --> 00:31:10.350
set by the commissioner upon a certain insurers proposal
648
00:31:10.350 --> 00:31:13.980
are not regulations that need to be subject to notice
649
00:31:13.980 --> 00:31:16.530
and hearing because they only affect the rights
650
00:31:16.530 --> 00:31:17.880
of the insurer and those
651
00:31:17.880 --> 00:31:19.560
who choose to do business with them.
652
00:31:19.560 --> 00:31:22.620
Very similarly, the guidelines for contracts here
653
00:31:22.620 --> 00:31:24.990
only affect the rights of a local housing authority
654
00:31:24.990 --> 00:31:27.333
and those who choose to work for them.
655
00:31:28.596 --> 00:31:31.740
Is there any problem with the way you raised this issue
656
00:31:31.740 --> 00:31:33.960
in the litigation?
657
00:31:33.960 --> 00:31:35.010
No, Your Honor.
658
00:31:35.010 --> 00:31:37.950
And well, first of all-
659
00:31:37.950 --> 00:31:40.080
This wasn't raised before Judge Connolly, right?
660
00:31:40.080 --> 00:31:41.100
That's right, Your Honor.
661
00:31:41.100 --> 00:31:42.500
So isn't that the problem.
662
00:31:44.130 --> 00:31:44.970
That's our view,
663
00:31:44.970 --> 00:31:49.281
Your Honor, we don't believe that this was squarely argued
664
00:31:49.281 --> 00:31:50.610
or raised in the blue brief.
665
00:31:50.610 --> 00:31:51.570
If you read the blue brief,
666
00:31:51.570 --> 00:31:54.210
you won't see citations to Trumble or Carry
667
00:31:54.210 --> 00:31:56.310
or any of the law in this area.
668
00:31:56.310 --> 00:31:57.690
Candidly, it was in response
669
00:31:57.690 --> 00:31:59.280
to this court's amicus announcement
670
00:31:59.280 --> 00:32:02.160
that we chose to put in an amended brief that did
671
00:32:02.160 --> 00:32:04.350
a full thorough workup of this issue.
672
00:32:04.350 --> 00:32:05.850
And for that reason,
673
00:32:05.850 --> 00:32:08.523
we believe it is squarely before the court.