UPDATED 7/31/20 8:14PM: To note an updated counterclaim from the commonwealth which no longer say the Board did not specifically recommend Walsh.

Walsh isn’t here at the Soldiers’ Home, but is he really gone? (via wikipedia)

The employment status of Bennett Walsh, the Superintendent of the Holyoke Soldiers’ Home (HSH) at the dawn of the facility’s COVID-19 outbreak, remains up in the air. A hearing on a temporary injunction barring the HSH’s Board of Trustees from dismissing him did not go forward Thursday. Rather, Walsh and the defendants in the case, the Board and the Massachusetts Department of Health & Human Services, opted to continue it. The court obliged.

The parties will instead focus on whether Walsh has actually been axed. On June 24, the date that Attorney Mark Pearlstein released his report on the breakdowns at the HSH, Governor Charlie Baker purportedly turfed Walsh via termination letter. Walsh’s attorney rejected the letter asserting only the HSH Board of Trustees could terminate him. The courts must now decide who is right.

In its answer to Walsh, the commonwealth—i.e. the HSH Board and HHS—insists different laws grant Baker and HHS Secretary Marylou Sudders authority to boot Walsh directly. To bolster their case, the commonwealth actually pulled back the curtain a bit on how Walsh’s appointment occurred. However, some of these new assertions do not comport with the findings of the administration’s own report on the HSH.

The filings came a week after Walsh’s lawyer, Bill Bennett, disputed several of Pearlstein’s findings. He also laid into the administration for turning his client into the fall guy. Bennett is also Walsh’s uncle and a former Hampden District Attorney.

On March 30, the Baker administration suspended Walsh as the extent of the COVID-19 outbreak at the HSH became clear. The litigation began in April. Walsh sued the Board and HHS to bar those entities from meeting to terminate him without due process.

Hampden Superior Court Judge Frank Flannery granted Walsh a temporary injunction barring the Board from meeting to fire him.

“Why rush?” -Hampden Superior Court (WMP&I)

At the time, the commonwealth defendants were content to sit and spin until Pearlstein completed his report. With the coronavirus still coursing through Massachusetts, the parties agreed to delay a hearing until July 30.

When Pearlstein came down from the mountain with his report on June 24, the governor announced plans to remove Walsh. At first, it was not clear whether His Excellency’s termination letter had immediate effect. Even though Baker’s letter cited direct authority over Walsh’s office, commonwealth lawyers had simultaneously, but unsuccessfully tried to lift the injunction on the Board of Trustees.

The authority Baker’s termination letter cites applies to another soldiers’ home—the one in Chelsea. The statute for the HSH clearly states that its Board of Trustees is in charge. Pearlstein’s report notes that the statutes can be confusing especially because the legal name of the Chelsea Soldiers’ Home is the Soldiers’ Home in Massachusetts.

In a brief interview with WMP&I this week, Attorney Bennett suggested the governor’s office probably cited this statute because it had erroneously referenced it when Walsh was appointed in 2016.

This conflict of laws forms the thrust of Walsh’s amended complaint. While he still requests injunctive relief, Walsh now seeks declaratory judgment on who has the authority to fire him.

“Feel the gov mistakin’ and everybody shakin’. And we’re stayin’ in court, stayin’ in court. Ah, ha, ha, ha, stayin’ in court, stayin’ in court…” Bennett Walsh earlier this year. (via SHNS & WBUR/Chris Van Buskirk)

The Monday motion to continue the injunction hearing argues that who controls Walsh’s employment must be settled first. If the administration is right, Walsh’s injunction on the Board of Trustees is moot. If Walsh is right, only the Board can formally remove him.

The parties agreed to a prompt three-week timetable including the commonwealth’s answer to the amended complaint. Originally due Wednesday, it arrived Thursday instead. The commonwealth’s motion for judgment on the pleadings should be imminent.

Walsh has until August 12 to file his cross-motion for judgment on the pleadings. Agreed-upon facts and exhibits for the court to consider will be due August 18 with a hearing to follow.

In its answer, the commonwealth denies Walsh’s contention that the wrong laws is invoked in Baker’s termination letter. Rather, in its own counterclaim for declaratory judgment, the commonwealth points to another law that states the HSH Board of Trustees and superintendent “shall be subject to such supervision as the governor deems necessary and proper.”

From this section springs His Excellency’s authority to vaporize Walsh’s employment.

The commonwealth also cites a December 21, 2015 letter Baker sent the Board of Trustees about the process to select the successor to the retiring Superintendent Paul Barabani.

“As some of you know, the Board and the Governor worked together in the recommendation and appointment of the current superintendent in 2011,” Baker wrote. “In that appointment, the Board conducted the recruitment and interviewing of applicants and then forwarded its recommendation to Governor Patrick for his approval.” Governor Baker describes this the usual process for such appointments that commissions oversee.

“I got the power!” Charlie says. But does he? (via YouTube/Mass Governor’s office)

The HSH Board’s statute does not explicitly envision a role for the governor during selection of the superintendent. However, the supervisory statute the commonwealth cites could leave room for gubernatorial approval of the Board’s choice.

Unlike a singular recommendation as Baker suggested in 2015, the counterclaim states that the Board did not actually select Walsh. Rather, after meeting in executive session over several weeks, it forwarded three names to the governor. The counterclaim cites February 26, 2016 Board of Trustees minutes that say the Board discussed the “process of submitting the final candidates to Governor Baker.”

The Counterclaim adds that the Board “did not specifically recommend that the Governor appoint the Plaintiff Bennett Walsh or any one candidate to the position of superintendent.”

However on Friday, after this story was originally published, the commonwealth amended its counterclaim to omit the allegation that the Board did not specifically recommend any one candidate.

What it does not say is how, of the three recommendeds, Walsh became a made man in the Baker administration. Secretary Sudders provided the verification for both versions of the counterclaim.

Of two minds Secretary Sudders? (via mass.gov)

Moreover, neither counterclaim entirely meshes with the Pearlstein report. In a section about the provenance of Walsh’s hiring, the report states that the Board had a firm preference. Then-Veteran Services Secretary Francisco Urena had pushed for more interviews.

“Nevertheless, the Board settled on Mr. Walsh, and Secretary Urena then recommended to Secretary Sudders that Mr. Walsh be appointed,” Pearlstein writes. The footnotes indicate this was based on a May 28 interview with Sudders.

The report goes on to say, “Secretary Sudders likewise recalls that Mr. Walsh was ‘overwhelmingly’ the choice of the Soldiers’ Home Board of Trustees.”

Sudders accepted Urena’s recommendation and the governor approved it. The report and the counterclaim appear to agree Baker and Sudders, rather than the Board, actually offered Walsh the gig. Thus, the counterclaim argues, what the governor giveth, he can taketh away.

A spokesperson for HHS did not return a request for comment about the discrepancies between the counterclaim and the Pearlstein report.

If Walsh succeeds, the court will reschedule the injunction hearing. The Monday motion to continue the injunction hearing also states that further action on the injunction will not occur until the court acts on the declaratory judgment claim.