Service Employees International Union, Local 509 v. Department of Mental Health , 469 Mass. 323 ( 2014 )

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SJC-11544
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs.
DEPARTMENT OF MENTAL HEALTH.
Suffolk. April 7, 2014. - August 15, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1
Privatization Act. Commissioner of Mental Health. Auditor.
Declaratory Relief. Practice, Civil, Declaratory
proceeding, Standing, Parties, Failure to join party.
Civil action commenced in the Superior Court Department on
February 15, 2012.
The case was heard by Merita A. Hopkins, J., on a motion
for judgment on the pleadings.
The Supreme Judicial Court granted an application for
direct appellate review.
Alfred Gordon O'Connell for the plaintiff.
Jo Ann Shotwell Kaplan, Assistant Attorney General, for the
defendant.
Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-
CIO, amicus curiae, submitted a brief.
Gerald A. McDonough, for the Auditor of the Commonwealth,
amicus curiae, submitted a brief.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
LENK, J. The plaintiff, Service Employees International
Union, Local 509 (union), appeals from an order of a Superior
Court judge dismissing its complaint for declaratory judgment
pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint,
the union alleged that the Department of Mental Health (DMH)
violated the Massachusetts privatization statute, G. L. c. 7,
§§ 52-55 (Pacheco Law), by entering into contracts with private
entities to obtain services substantially similar to those
performed by members of the union, but failing to comply with
relevant statutory obligations. DMH filed an answer as well as
a motion for judgment on the pleadings pursuant to Mass. R. Civ.
P. 12 (c), 365 Mass. 754 (1974). After a hearing, the judge
granted DMH's motion, which she treated as a motion to dismiss
for lack of subject matter jurisdiction under Mass. R. Civ. P.
12 (b) (1), 365 Mass. 754 (1974). The judge determined that the
union lacked both direct and associational standing to seek
declaratory relief and, additionally, that the union's failure
to join necessary parties constituted a separate jurisdictional
bar requiring dismissal. The judge did not err in declining to
consider the union's complaint on the basis of its failure to
name all necessary parties. However, because we conclude that
the union has direct standing to seek a declaratory judgment
under G. L. c. 231A that would invalidate the contracts at
3
issue, we remand the case to the Superior Court for the limited
purpose of allowing the union to seek leave to amend its
complaint by adding all necessary parties. An order of
dismissal shall enter if the union does not take such action
within thirty days of the issuance of the rescript in this case.
1. Background. The following facts are taken from the
union's complaint. For over a decade, DMH, which provides
mental health services to clients throughout the Commonwealth,
has employed case managers who are members of the union. Case
managers are responsible for conducting initial need
assessments, developing individualized service plans, and
maintaining ongoing client contact and advocacy. In late 2008
or early 2009, DMH entered into contracts with private entities
to initiate a new program, Community Based Flexible Supports
(CBFS). CBFS services, which were intended to facilitate more
personalized client assistance, overlapped in certain respects
with services previously provided by DMH case managers.2
2
The Department of Mental Health (DMH) has described
Community Based Flexible Supports (CBFS) services as including
"interventions and supports that manage psychiatric symptoms in
the community, restore or maintain daily living skills, promote
wellness and the management of medical conditions and assist
clients to restore or maintain and use their strengths and
skills to undertake employment. . . . CBFS contractors are
responsible for: client screenings and enrollment; assessments
and integrated treatment planning; quality and utilization
management; data collection and reporting; service documentation
and discharge planning."
4
DMH concluded that the contracts into which it sought to
enter did not constitute "privatization contracts" within the
meaning of G. L. c. 7, § 53,3 and that it was therefore not
subject to the terms of the Pacheco Law. For this reason,
throughout the contracting process, DMH did not comply with any
of the requirements enumerated in G. L. c. 7, §§ 52-55,
discussed in more detail below, nor did it notify the union or
the Auditor of the Commonwealth that it had entered into such
contracts. During fiscal year 2009, approximately one hundred
case managers, all members of the union, were laid off. The
union alleges that these layoffs resulted from implementation of
DMH's CBFS contracts because the services provided by private
3
General Laws c. 7, § 53, defines a "privatization
contract" as "an agreement or combination or series of
agreements by which a non-governmental person or entity agrees
with an agency to provide services, valued at $500,000 . . .
which are substantially similar to and in lieu of, services
theretofore provided, in whole or in part, by regular employees
of an agency." The statute further provides that the value of
applicable contracts will increase as of January 1 each year in
order to reflect the consumer price index. Id. As of January
1, 2014, only contracts valued at $543,442 or more were subject
to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55.
See http://www.mass.gov/auditor/information-and-resources/for-
public-agencies/the-commonwealths-privatization-law-.html (last
viewed Aug. 12, 2014). While the record does not reflect the
value of the contracts at issue in the present case, DMH has
maintained that the Pacheco Law was inapplicable only because
CBFS services, in its view, were distinct from those offered by
case managers, not because the contract price was below the
established minimum amount.
5
entities were substantially similar to those previously offered
by the case managers.4
In early 2009, the union notified the Auditor, who is
endowed by G. L. c. 7, § 55, with a "broad grant of power" to
review all privatization contracts for compliance with the
Pacheco Law, Massachusetts Bay Transp. Auth. v. Auditor of the
Commonwealth, 430 Mass. 783, 791 (2000) (MBTA), that DMH had
declined to follow the terms of the Pacheco Law despite having
contracted with private entities in order to implement the CBFS
program. On September 15, 2010, after soliciting information
from DMH about the contracts at issue, the general counsel for
the Auditor issued a memorandum to both parties in which he
concluded that the contracts in question constituted
privatization contracts under the Pacheco Law and that,
accordingly, DMH had erred in declining to comply with the
Pacheco Law's requirements.5 Counsel forwarded this memorandum
to the office of the Attorney General "to take whatever
4
In its complaint, Service Employees International Union,
Local 509 (union) alleged that case managers lost their jobs as
a direct result of DMH's contractual activities. We take no
view as to whether the layoffs in fact resulted from the
contracts into which DMH entered, or, indeed, whether those
contracts constituted "privatization contracts" within the
meaning of G. L. c. 7, § 53.
5
The memorandum states that "the facts in general and the
statistics in particular indicate that at least a portion of
public services was moved from state employees to private
contractors without following the provisions set forth in G. L.
c. 7, section 52-57."
6
steps . . . are appropriate." The Attorney General took no
action as a result of the Auditor's findings. Following the
issuance of the Auditor's report, DMH has not taken steps to
comply with the terms of the Pacheco Law in connection with its
implementation of the CBFS program, and has not reinstated the
case managers who lost their jobs.
On February 15, 2012, the union filed a complaint in the
Superior Court seeking a declaratory judgment pursuant to G. L.
c. 231A, §§ 1, 2, and 5. The complaint alleged that DMH had
violated the Pacheco Law by entering into contracts with private
entities without adhering to the requirements set forth in G. L.
c. 7, §§ 52-55, and requested a declaration that the contracts
at issue are invalid, as well as equitable relief including
monetary damages and reinstatement of the case managers who were
laid off. In its answer, DMH averred that there was no
violation because the provisions of the Pacheco Law were not
applicable to the CBFS contracts.
After a hearing, the judge allowed DMH's motion for
judgment on the pleadings, which consisted only of the union's
complaint and DMH's answer. She determined that the union
lacked both direct and associational standing to pursue its
claim, concluding that, where an agency "believes that the law
is not applicable in a particular situation," it owes no duty to
an employee organization or its members. The judge also
7
concluded that the Superior Court lacked jurisdiction because
the union had failed to join necessary parties to the action
pursuant to G. L. c. 231A, § 8, and Mass. R. Civ. P. 19, 365
Mass. 765 (1974). We granted the union's petition for direct
appellate review.
2. Discussion. We are asked to determine whether the
union has standing to seek declaratory relief where DMH did not
comply with the provisions of the Pacheco Law, given its
unilateral determination that the law was inapplicable to its
proposed contracts with outside vendors. According to the
union, DMH breached its statutory duties when it opted not to
follow the procedures set forth in the Pacheco Law, thereby
preventing the union from protecting the interests and
employment rights of its membership. This inability to fulfill
its core mission, the union argues, constituted a legally
cognizable injury sufficient to confer direct standing for the
purposes of G. L. c. 231A.
DMH maintains that the Pacheco Law provides no benefits to
the union itself, as distinct from its members, and that the
union's rights under the Pacheco Law exist solely to assist
State employees. Therefore, DMH contends, it owes no duty to
the union under the Pacheco Law, and the union has no standing
to seek declaratory relief. In a related vein, DMH argues that
the union has suffered no legally cognizable injury that could
8
serve as a predicate for direct standing. Because, on this
view, any statutory obligations DMH might owe the union inure
only to the benefit of DMH employees, any injuries occasioned by
a violation of those obligations would harm only the union's
members and not the union itself. In any event, such injuries
would lie outside the Pacheco Law's zone of interest.
As an initial matter and before turning to the merits of
this dispute, it seems plain that the Pacheco Law as written
does not contemplate the situation presented here. The Pacheco
Law establishes "[p]rocedures that agencies must follow when
beginning the bidding process for and entering into a
privatization contract." MBTA, supra at 786. While G. L. c. 7,
§ 53, defines which contracts are subject to those enumerated
procedures, the Pacheco Law provides no means by which to
resolve questions as to whether a particular proposed contract
with a private entity constitutes a "privatization contract"
within the meaning of G. L. c. 7, § 53. Otherwise put, there is
no statutory provision addressing the procedures to follow when
an agency makes a unilateral decision that it need not comply
with the requirements of the Pacheco Law.
Nor did our previous analysis of the Pacheco Law anticipate
such a situation. See MBTA, supra. In that case, a public
agency sought to privatize certain services and presented its
proposed contract to the Auditor. The Auditor objected,
9
concluding that the agency had not sufficiently complied with
the terms of the Pacheco Law and that its contracts therefore
were invalid. Id. at 784-785. The agency sought review
pursuant to G. L. c. 249, § 4, based on asserted errors in the
Auditor's determination. MBTA, supra at 790. Importantly,
neither party disputed the applicability of the Pacheco Law.
The agency submitted a draft contract as contemplated by G. L.
c. 7, § 54, and the Auditor reviewed that draft in accordance
with G. L. c. 7, § 55. MBTA, supra at 784-785. In our review,
we asked only whether the Auditor had erred in executing his
statutory duties.6 Id. at 791. Here, on the other hand, we must
determine the proper means by which parties may resolve the
preliminary question, not expressly contemplated by the
Legislature, whether the Pacheco Law applies to certain
contracts such that an agency must satisfy its requirements.
With these considerations in mind, we first address whether
the union has standing to contest DMH's determination that its
proposed contracts fell outside the ambit of the Pacheco Law by
6
Although G. L. c. 7, §§ 52-55, does not explicitly provide
for the judicial review of a determination made by the Auditor,
in Massachusetts Bay Transp. Auth. v. Auditor of the
Commonwealth, 430 Mass. 783, 791 (2000) (MBTA), we considered
whether the Auditor "substantially erred in a way that
materially affected the rights of the parties." See G. L.
c. 249, § 4; Carney v. Springfield, 403 Mass. 604, 605 (1988),
citing Murray v. Second Dist. Court of E. Middlesex, 389 Mass.
508, 511 (1983). Here, however, we are not asked to assess the
substantive merits of a decision made by the Auditor, and need
not further consider the scope of such review.
10
seeking declaratory relief. We then turn to the union's alleged
failure to join all necessary parties to its complaint.
a. Standing. The declaratory judgment statute, G. L.
c. 231A, "may be used in the superior court to enjoin and to
obtain a declaration of the legality of the administrative
practices and procedures of any municipal, county, or state
agency . . . ." G. L. c. 231A, § 2. A party has standing
pursuant to G. L. c. 231A where the defendant has "violated some
duty owed to the plaintiff[s]," Enos v. Secretary of Envtl.
Affairs, 432 Mass. 132, 135 (2000) (Enos), quoting Penal Insts.
Comm'r for Suffolk County v. Commissioner of Correction, 382
Mass. 527, 532 (1981), and where the plaintiffs "can allege an
injury within the area of concern of the statute or regulatory
scheme." Enos, supra, quoting Massachusetts Ass'n of Indep.
Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass.
290, 293 (1977).7 In assessing whether a party may seek
declaratory relief, we have considered the text and purpose of
the relevant statute and the nature of the administrative scheme
it sets forth, the availability of other remedies for the
plaintiffs, and any adverse consequences that might follow
should standing be recognized. Enos, supra at 135-136.
7
General Laws c. 231A does not provide an independent basis
for standing. See Enos v. Secretary of Envtl. Affairs, 432
Mass. 132, 135 (2000), citing Pratt v. Boston, 396 Mass. 37, 42-
43 (1985).
11
The notion of standing is an "elastic concept[]" whose
meaning depends on the particular parties at issue, id. at 135,
and "standing requirements should be liberally construed" in
declaratory judgment proceedings, Home Bldrs. Ass'n of Cape Cod,
Inc. v. Cape Cod Comm'n, 441 Mass. 724, 733 (2004). We take as
true all facts alleged in the union's complaint. See Warth v.
Seldin, 422 U.S. 490, 501 (1975) (when considering motion to
dismiss for lack of standing, reviewing court must accept as
true all material allegations in complaint); Iannacchino v. Ford
Motor Co., 451 Mass. 623, 636 (2008); Barbara F. v. Bristol Div.
of the Juvenile Court Dept., 432 Mass. 1024, 1025 (2000) (court
construed all allegations as true in determining whether
plaintiff had standing).
i. Text and purpose of the Pacheco Law and its
administrative scheme. General Laws c. 7, §§ 52-55, was enacted
in 1993, over the veto of Governor William Weld, based on the
Legislature's findings that "using private contractors to
provide public services formerly provided by state employees
does not always promote the public interest." G. L. c. 7, § 52.
See MBTA, supra at 787, quoting Senate Committee on Ways and
Means, Fiscal Year 1994 Budget Recommendations 2-21 (June 1993)
(noting that "some privatization has indeed come at the
citizens' expense"). Accordingly, "[t]o ensure that citizens of
the commonwealth receive high quality public services at low
12
cost, with due regard for the taxpayers of the commonwealth and
the needs of public and private workers," the Pacheco Law
permits State agencies to enter into privatization contracts
only after satisfying certain prerequisites. See MBTA, supra at
785, quoting G. L. c. 7, § 52.
General Laws c. 7, § 54, sets forth the procedures an
agency is obliged to follow when it seeks to enter into a
"privatization contract" as defined in G. L. c. 7, § 53. The
agency must, among other things, (1) prepare a written statement
of the services to be performed by private entities; (2) prepare
a written estimate of the cost of those services as performed by
State employees in the most cost-efficient manner; (3) allow
"any relevant employee organization" the opportunity to propose
amendments to collective bargaining agreements to lower the
estimated cost of State employees performing the services; and
(4) consult with any such organization and provide information
designed to assist State employees in proposing a bid to keep
the services in house. G. L. c. 7, § 54.8 These requirements
8
General Laws c. 7, § 54, provides, in relevant part:
"No agency shall make any privatization contract and
no contract shall be valid unless the agency . . . first
complies with each of the following requirements: -- (1)
The agency shall prepare a specific written statement of
the services proposed to be the subject of the
privatization contract, including the specific quantity and
standard of quality of the subject services. . . . (4) The
agency shall prepare a comprehensive written estimate of
13
ensure that privatization contracts are permissible only if a
State agency can demonstrate cost savings that do not result
from lowered employment standards. "[N]o [privatization]
contract shall be valid" unless and until the agency submits a
written certification that it has complied with the above
requirements and all others enumerated by the statute. Id.
In order to enforce these requirements, the Auditor may
adopt regulations and prescribe forms that an agency must use
when formulating its proposal. G. L. c. 7, § 55 (c). The
Auditor may object to any proposed privatization contract within
thirty days of receiving the agency's certificate of compliance.
G. L. c. 7, § 55 (a). Such an objection is final and binding on
the agency. Id.
ii. Duty and injury. DMH contends that the provisions of
the Pacheco Law serve only State employees and not the unions to
which they belong, and that, accordingly, it owes no duty to the
the costs of regular agency employees' providing the
subject services in the most cost-efficient manner. . . .
For the purpose of this estimate, any employee organization
may . . . propose amendments to any relevant collective
bargaining agreement to which it is a party. . . . (5)
After consulting any relevant employee organization, the
agency shall provide adequate resources for the purpose of
encouraging and assisting present agency employees to
organize and submit a bid to provide the subject
services. . . . (7) The head of the agency and the
commissioner of administration shall each certify in
writing to the state auditor, that: (i) he has complied
with all provisions of this section and of all other
applicable laws . . . ."
14
union. This argument finds little support in the statutory
language. The Pacheco Law confers two specific, substantive
rights on employee organizations that benefit those
organizations in and of themselves. First, G. L. c. 7,
§ 54 (4), provides that "any employee organization may . . .
propose amendments to any relevant collective bargaining
agreement to which it is a party" in order to reduce the
estimated cost of allowing the services in question to continue
to be provided by State employees. Second, G. L. c. 7,
§ 54 (5), requires that the agency shall consult with "any
relevant employee organization" before providing resources that
will encourage agency employees to prepare a bid for the
services in question. No privatization contract "shall be
valid" if a public agency fails to comply with these substantive
requirements, G. L. c. 7, § 54, which recognize and promote the
essential role unions play in "assist[ing their] members to
improve their wages, hours, and conditions of employment."
G. L. c. 150E, § 1.
Under the plain language of the Pacheco Law, then, a public
agency owes certain duties to a collective bargaining
organization. When such an agency seeks to privatize duties
previously performed by State employees, it is incumbent upon
that agency to allow the union to amend its collective
bargaining agreement and benefit from a consultation about
15
materials relevant to the preparation of a competitive bid. An
agency that does not afford a union these opportunities is not
in compliance with the Pacheco Law and cannot be said to have
fulfilled its obligations. Here, accepting all facts alleged in
the union's complaint, DMH declined to submit its proposed
contracts to the Auditor for review even though the contracts
constituted "privatization contracts" within the meaning of
G. L. c. 7, § 53. In thus preventing the union from advocating
on behalf of its members in the manner specifically permitted by
the Pacheco Law, DMH committed a breach of the duty it owes the
union pursuant to that statute.
The union has alleged in its complaint a "reasonably
definite" injury stemming from this breach, Professional Fire
Fighters of Mass. v. Commonwealth, 72 Mass. App. Ct. 66, 75
(2008), that is neither "speculative, remote, [nor] indirect,"
Ginther v. Commissioner of Ins., 427 Mass. 319, 323 (1998).
Because DMH did not follow the procedural steps set forth in
G. L. c. 7, § 54, the union had no opportunity, pursuant to
G. L. c. 7, § 54 (4), to amend the terms of its collective
bargaining agreements with a public agency in an effort to lower
the costs of providing the relevant services by union members.
Nor was it able to consult with DMH pursuant to G. L. c. 7,
§ 54 (5), to assist in compiling information for use by agency
employees. As a result of DMH's unilateral determination that
16
the Pacheco Law did not apply to its proposed contracts,
therefore, the union was precluded from exercising its explicit
statutory rights and from intervening, in service of its
membership, when confronted with the prospect of privatization.
These consequences are not "inchoate and
nonparticularized," Ten Persons of the Commonwealth v. Fellsway
Dev. LLC, 460 Mass. 366, 381 (2011) (citation omitted); they
bear directly on the union's core mission of protecting the
long-term interests of all of its members. See G. L. c. 150E,
§ 5 ("The exclusive representative . . . shall be responsible
for representing the interests of all . . . employees without
discrimination"). In essence, the union's complaint alleges
that, because of DMH's failure to submit its contracts to the
Auditor and to comply with the terms of the Pacheco Law, one
hundred case managers lost their jobs; the union could neither
exercise its statutory rights to bargain on their behalf nor
continue to represent those managers once they were no longer
State employees. Taken as true, these deprivations constitute
cognizable injury for purposes of the declaratory judgment
statute.
What is more, such injuries fall within the zone of
interest of the Pacheco Law. See Massachusetts Ass'n of Indep.
Ins. Agents & Brokers, Inc. v. Commissioner of Ins., supra at
294 (injury must be "within the parameters of the statutory
17
concern"). The Pacheco Law was enacted "with due regard
for . . . the needs of public and private workers," G. L. c. 7,
§ 52,9 and, accordingly, allows the union to amend collective
bargaining agreements and consult with a public agency about the
resources necessary to prepare competitive bids. The
administrative scheme set forth by the Pacheco Law, therefore,
fairly can be seen as promoting the role of employee
organizations in representing the interests of State employees.
When the union was foreclosed from assisting its members in the
ways enumerated by the Legislature, the resulting injury fell
squarely within the statute's area of concern. See
Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v.
Commissioner of Ins., supra at 295-296.
In contending that it owes no duty to the union and that
the union has suffered no cognizable injury to itself, DMH
misapprehends the nature of employee organizations as defined in
G. L. c. 150E. A union is the exclusive representative of all
employee members, see G. L. c. 150E, § 4, and it "shall have the
9
Indeed, Governor Weld understood the Pacheco Law, as first
proposed by the Legislature, to be a "State Employee
Preservation Act." Governor William F. Weld, Testimony before
the Joint Committee on State Administration, in Executive Office
for Administration and Finance, Commonwealth of Massachusetts,
Privatization in Massachusetts: Getting Results 49 (Draft Nov.
1, 1993). See Rosse v. Commissioner of Revenue, 430 Mass. 431,
438 n.6 (1999), quoting Kartell v. Blue Shield of Mass., Inc.,
384 Mass. 409, 421 (1981) (This court "may turn to unofficial
sources in order to gain a 'contemporary understanding of the
underlying purposes' of the legislation").
18
right to act for and negotiate agreements covering all employees
in the unit." G. L. c. 150E, § 5. It is not the case,
moreover, that the interests of a union are always coextensive
with those of its members. See Anderson v. Commonwealth
Employment Relations Bd., 73 Mass. App. Ct. 908, 911 (2009)
(union "did act reasonably in negotiating the [collective
bargaining agreement] for all its members" even where it did not
cater to each individual member's demands). A union may take
action in service of the long-term interests of its members,
even where certain employees disagree or are displeased with the
immediate result. See Ford Motor Co. v. Huffman, 345 U.S. 330,
338 (1953) ("The complete satisfaction of all who are
represented [by a union] is hardly to be expected").
The Pacheco Law preserves this distinction between a union
and its membership. For instance, only a union may, pursuant to
the Pacheco Law, amend collective bargaining agreements in order
to lower the costs of having its members perform the services at
issue. An individual employee has no statutory authority to
take such action.10 See Miller v. Board of Regents of Higher
Educ., 405 Mass. 475, 480 (1989); DiLuzio v. United Elec., Radio
10
This is in keeping with the requirements of G. L.
c. 150E, § 6, pursuant to which public employers may negotiate
in good faith only with a union. They are prohibited from
dealing directly with individual employee members. See G. L.
c. 150E, § 6; Service Employees Int'l Union, AFL-CIO, Local 509
v. Labor Relations Comm'n, 431 Mass. 710, 714-715 (2000).
19
& Mach. Workers of Am., Local 274, 386 Mass. 314, 314 (1982),
S.C., 391 Mass. 211 (1984) (labor unions are legal entities for
purposes of suing or being sued). Furthermore, the Pacheco Law
distinguishes between rights that belong to a union and rights
that belong to a union's members. As discussed, under the
Pacheco Law, the union is empowered to consult with an agency
prior to the agency's dissemination of information relevant to
competitive bids. Pursuant to G. L. c. 7, § 54 (5), however,
the individual members are the parties actually permitted to
submit such bids.
These provisions reflect the Legislature's understanding
that a union may have rights and interests separate from those
of the employees it represents. Although DMH's asserted failure
to notify the union of its intent to contract may also have run
counter to the interests of the case managers, who were State
employees, such conduct caused independent harm to the union
itself, which was barred thereby not only from exercising its
statutory privileges, but also from engaging in actions
indispensable to its essential function. See Massachusetts
Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of
Ins., supra at 296 (plaintiffs had standing where opposite
ruling would have had "the potential of lessening the role and
vitality of such persons" within administrative scheme).
20
While the injuries a union suffers also may affect the
well-being and rights of its members, rather than being a bar to
union standing, such concurrent injury simply reflects the very
nature of the relationship between a collective bargaining
association and the employees it represents. A union may have
standing in its own right even where its members suffer injury,
so long as the union, too, is injured in its capacity as an
organization. See Babbitt v. United Farm Workers Nat'l Union,
442 U.S. 289, 299 n.11 (1979), overruled on other grounds by 442
U.S. 936 (1979) (union had direct standing to seek declaratory
judgment invalidating provision of farm labor statute that
inhibited members' constitutional right to freedom of
association). Contrast Massachusetts Elec. Co. v. Massachusetts
Comm'n Against Discrimination, 375 Mass. 160, 177-178 (1978)
(union lacked standing pursuant to G. L. c. 151B, § 1, where
"union as a union did not sustain any direct injury as a result
of the company's alleged [sex-based] discriminatory practices,"
which only affected rights of its pregnant members).
iii. Availability of other remedies and possible adverse
consequences. To deny standing in these circumstances would
leave the union no recourse whenever an agency decides that the
requirements of the Pacheco Law are inapplicable and, therefore,
that it need not comply with those requirements. See Villages
Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs,
21
410 Mass. 100, 107 (1991) (plaintiff had standing to seek
declaratory relief where no other remedy available). Contrast
Enos, supra at 141-143 (plaintiffs who had an alternative
statutory remedy lacked standing to file claim under G. L.
c. 231A). Issuance of a writ of mandamus would be inappropriate
against DMH, the Auditor, or the Attorney General, where none of
those parties has failed "to perform a clear cut duty" pursuant
to the statute.11 See Montefusco v. Commonwealth, 452 Mass.
1015, 1015 (2008), quoting Simmons v. Clerk-Magistrate of the
Boston Div. of the Housing Court Dep't, 448 Mass. 57, 59-60
(2006). Where a State agency seeks to enter into contracts that
constitute "privatization contracts" under G. L. c. 7, § 54,
that agency, as discussed above, owes certain specific duties to
a union pursuant to the Pacheco Law. Here, however, the parties
dispute whether the law applies to the proposed contracts in
question and thus whether DMH, in fact, owed any duties at all
to the union. Indeed, the union sought declaratory judgment in
order to resolve precisely this question. Accordingly, absent a
11
Moreover, the extraordinary remedy of mandamus is
appropriate only to prevent a failure of justice in instances
where no other relief is available and "nothing else would
work." Doe v. District Attorney for the Plymouth Dist., 29
Mass. App. Ct. 671, 674 (1991). The Coach & Six Restaurant,
Inc. v. Public Works Comm'n, 363 Mass. 643, 644 (1973). See
Trust Ins. Co. v. Commissioner of Ins., 48 Mass. App. Ct. 617,
622 (2000) (where petitioner had filed petition for declaratory
judgment, mandamus was inappropriate given petitioner's "more
general request for relief").
22
binding declaration that DMH's efforts at privatization did,
indeed, fall within the terms of the Pacheco Law, DMH would
maintain it has no "clear cut" obligations to the union that
might render mandamus an apt mechanism for relief.
It would be equally unsuitable for the union to seek
mandamus against the Auditor, who neither shirked his statutory
obligation or otherwise violated the terms of the Pacheco Law.
As noted, the Legislature did not establish any means by which
the Auditor may contest an agency's assertion that the Pacheco
Law is inapplicable. Here, the Auditor nevertheless issued a
memorandum advising DMH that its proposed contracts were subject
to the terms of the Pacheco Law, but subsequently, DMH has taken
no steps towards compliance. There is therefore no other action
on the part of the Auditor that the union properly could request
in a petition for a writ of mandamus. Finally, as for the
Attorney General, the Pacheco Law provides only that she may
file an action pursuant to G. L. c. 7, § 54 (2), in order to
enforce the minimum wage to be paid to those employed under a
privatization contract. It makes no express provision for her
to intervene when an agency, as here, declines at the outset to
submit its contracts to the Auditor.
Nor does the Pacheco Law contain a private right of action
that might provide some other avenue for relief. Although DMH
points to this absence as evidence that permitting an employee
23
organization to seek declaratory relief against a public agency
would contravene the intention of the Legislature, we draw the
opposite conclusion. A plaintiff may seek the equitable remedy
of declaratory relief, Grady v. Commissioner of Correction, 83
Mass. App. Ct. 126, 137 n.9 (2013), even if the relevant statute
does not provide a private right of action. See, e.g., Ten
Persons of the Commonwealth v. Fellsway Dev. LLC, 460 Mass. 366,
380 (2011), quoting Enos, supra at 134-135 ("to invoke the
court's general equity jurisdiction under c. 231A, '[t]he
dispositive question is whether the plaintiffs have demonstrated
that they have standing to maintain their action . . .'"). Cf.
Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court,
448 Mass. 15, 24, 38 (2006) (plaintiff employees could seek
declaratory relief against trial court for exposure to asbestos
despite absence of private right of action in applicable
environmental statutes).
To be sure, a party may not seek declaratory relief to
effect an "end run" around the absence of a private right of
action where the Legislature intended to foreclose certain
remedies. See Boston Med. Ctr. Corp. v. Secretary of the
Executive Office of Health & Human Servs., 463 Mass. 447, 471
(2012), citing Green v. Mansour, 474 U.S. 64, 73 (1985)
(plaintiff medical provider could not seek declaratory judgment
as to reasonableness of rate determinations absent private right
24
of action). But that rationale has little weight where the
absence of declaratory relief would prevent the Pacheco Law from
being administered properly and thus contravene the
Legislature's intent. Here, the union suffered a cognizable
injury but cannot directly enforce the terms of the statute or
otherwise vindicate its rights. No other party is entitled to
challenge the alleged violation. In such specific
circumstances, declaratory judgment is an appropriate vehicle
for relief to ensure that agencies may not evade the
requirements of the Pacheco Law with impunity.
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,
25
confounding the Legislature's efforts to ensure that
privatization does not occur at the expense of public welfare.
Allowing the union to contest an agency's otherwise
unreviewable pronouncement that it need not comply with the
Pacheco Law will not, as DMH contends, transform the declaratory
judgment statute into a "roving entitlement for allegedly
aggrieved plaintiffs." Enos, supra at 141 (no standing where
public agency did not owe plaintiff property owners duty under
Massachusetts Environmental Protection Act). To confer standing
on an employee organization in this circumstance does no more
than allow it to challenge the view of a public agency that its
proposed contracts do not fall within the terms of the Pacheco
Law.12 Indeed, such challenges are critical to the functioning
12
Our decision that declaratory judgment is an appropriate
remedy here should be understood as limited to the circumstances
presented, where an agency takes the position that the Pacheco
Law does not apply to certain contracts with private entities
and accordingly does not comply with relevant statutory
obligations including notification of the Auditor as to such
contracts. See G. L. c. 7, §§ 52-55. In contrast, an action in
the nature of certiorari pursuant to G. L. c. 249, § 4, is the
proper vehicle for relief when challenging a decision made by
the Auditor. See MBTA, supra at 790-791.
Further, the Pacheco Law, consistent with its purpose,
provides a streamlined and time-sensitive process for agencies
seeking to enter into privatization contracts. Such contracts
affect the interests of many parties and the concomitant need
for expedition in settling questions as to their validity is
evident. Given this, and notwithstanding the three-year statute
of limitations for declaratory judgment actions, a union failing
to take prompt action against the agency in these circumstances
26
of the statute, and also may provide clarity to parties in
related situations concerning whether they properly are subject
to the requirements of the Law.
We express no opinion as to the merits of the Auditor's
determination that the CBFS contracts at issue constitute
"privatization contracts" such that the Pacheco Law does, in
fact, apply. See note 4, supra. Contrast MBTA, supra at 791-
792. We conclude only that there must be a way to resolve any
disputes over the parameters of the Pacheco Law in the first
instance, and that the union's complaint alleged a cognizable
injury sufficient to support standing. Because the union is the
party best situated to challenge an agency's decision not to
submit proposed contracts to the Auditor, because seeking a
declaratory judgment is the only viable mechanism by which it
may do so, and because the Legislature could not have intended
that the Pacheco Law effectively be unenforceable, the union has
direct standing to pursue declaratory relief under G. L.
c. 231A.13
runs the serious risk of exposure to the affirmative defense of
laches.
13
The union also alleges that it has associational
standing, on behalf of its members, to file a petition for
declaratory relief. Given our conclusion that direct standing
does lie, we do not reach this claim.
27
b. Joinder of necessary parties. We turn to the union's
asserted failure to join necessary parties pursuant to G. L.
c. 231A, § 8, and Mass. R. Civ. P. 19, which, DMH maintains,
independently should bar consideration of the union's complaint.
The declaratory judgment statute provides that "all persons
shall be made parties who have or claim any interest which would
be affected by the declaration." G. L. c. 231A, § 8. Rule 19,
although not limited to the context of declaratory relief, is to
similar effect.14 The failure to name necessary parties may be
jurisdictional in a declaratory judgment action, thereby
precluding the court's consideration of the issue. See, e.g.,
Villages Dev. Co. v. Secretary of the Executive Office of Envtl.
Affairs, 410 Mass. 100, 105-106 (1991).
In its complaint, the union did not name as defendants the
private vendors with whom DMH entered into contracts under the
CBFS program. These vendors, however, are plainly necessary
parties. As beneficiaries of the disputed contracts, the
14
Rule 19 (a) of the Massachusetts Rules of Civil
Procedure, 365 Mass. 765 (1974), provides that a
"person who is subject to service of process shall be
joined in the action if . . . (2) he claims an interest
relating to the subject of the action and is so situated
that the disposition of the action in his absence may (i)
as a practical matter impair or impede his ability to
protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest."
28
vendors have an interest in the resolution of the union's claim,
and, like DMH, a right to contest whether the contracts are
subject to the terms of the Pacheco Law. Unless and until the
vendors are joined as parties, therefore, "any declaration of
rights would be merely academic as to persons not parties to the
proceedings." J.R. Nolan & B.R. Henry, Civil Practice § 48.11,
at 411 (3d ed. 2004) ("fundamental purpose" of declaratory
judgment "cannot be effectuated" where necessary parties are
missing from suit). Accordingly, the judge did not err in
concluding that the union's failure to name all necessary
parties rendered its complaint legally insufficient, and that
she therefore lacked jurisdiction to entertain that complaint.
3. Conclusion. While there was no error in the judge's
decision to dismiss the complaint on the ground of the failure
to name all necessary parties, in light of our conclusion as to
direct standing, the judgment of dismissal is vacated and set
aside, and the case is remanded to the Superior Court for the
limited purpose of allowing the union to file a motion seeking
leave to amend the complaint to add all necessary parties. If
the union does not file such a motion within thirty days of the
issuance of the rescript in this case, an order shall enter
dismissing the complaint.
So ordered.