Tiptoeing to a showdown. (WMP&I)

The saga of the employment status of once-upon-a-time Holyoke Soldiers’ Home Superintendent Bennett Walsh has reached a critical stage. Both the commonwealth—technically the Home’s Board of Trustees and the state Health & Human Services office—and Walsh filed papers for declaratory judgment on the pleadings. The court’s ruling will either end Walsh’s case or shift it to other questions.

Walsh had been the superintendent when COVID-19 struck earlier this year. Governor Charlie Baker and HHS Secretary Marylou Sudders removed him after (allegedly) learning of conditions there. Baker subsequently hired Attorney Mark Pearlstein to investigate. His findings prompted Baker to “terminate” Walsh. Yet, it is not clear the governor has that authority. Prior to the report’s release, the Home’s Board was moving to do the deed.

Walsh originally filed suit in April to block the Board from meeting to terminate him. The parties agreed to continue consideration of the injunction until Pearlstein’s report came out. It rejected the commonwealth’s attempt to expedite a hearing on lifting the injunction.

“You can’t fire me! I was never hired–by you!” (via SHNS & WBUR/Chris Van Buskirk)

Following his Excellency’s termination letter, the cases’ central issue became who under state law can fire Walsh—or even who appointed him. While facts are in dispute, the filings stipulate to enough details for a judge to rule on who can defenestrate Walsh.

The issue has been murky from the start. Dating to Walsh’s appointment in 2016, the governor’s office has cited the incorrect statute for Walsh’s position. In its court filings, the commonwealth also cites a separate statute that puts the Board and the superintendent under Baker’s supervision.

The incorrectly cited law controls the Chelsea Soldiers’ Home. If things went as the governor’s office claims, Walsh’s appointment seemingly followed the Chelsea, appointment process. Statutorily, the Holyoke Board would select the superintendent—perhaps with the governor’s input. In Walsh’s case the Board supposedly forwarded three recommendations to Baker and Sudders. Per Pearlstein’s report, Walsh was the clear favorite although Sudders briefly claimed otherwise to the court.

In substantive terms, the motions for judgment on the pleadings provide little new material. They restate arguments from earlier filings about which statute controls. Most prominent among these is the dispute about the breadth of the supervision statute. Walsh’s reply, also not entirely new, is that the commonwealth at one point acted like on the Board would terminate him.

Notably, the commonwealth now seemingly acknowledges a problem with its reliance on the Chelsea Soldiers’ Home statute. Rather than accepting the error, the commonwealth leans into it. Its motion says it cannot possible be wrong to use the Chelsea statute to dismiss Walsh. Otherwise his appointment pursuant to that law is also void.

Gonna take more than a smile to win over a judge Charlie! (via Twitter/@CharlieBakerMA)

“[I]f, as the Plaintiff argues, the Governor and his Secretary have no authority over his employment, then he was never properly appointed,” the commonwealth argues. “By extension, not only is he no longer the Superintendent, he never was.”

Walsh responds in his cross-motion for judgment that this suggestion is absurd. A typographical error cannot void his employment nor make the Chelsea statute controlling. Walsh points to the correct statutory authority and actions the Board took.

Indeed, he highlights the Governor’s 2015 directive to the Board to find a new superintendent and its subsequent efforts to find one. Even if the governor participated in his process, Walsh argues, the Board was still in the driver’s seat because it cannot delegate its authority to Baker.

“At most, the commonwealth was acting as an agent of the Board and confirming approval of Mr. Walsh’s appointment,” Walsh’s motion states, referring to the document acknowledging his appointment.

Walsh’s motion adds that the commonwealth only produced minutes through March 22, 2016, two months before Walsh’s formal appointment. Any further actions of the Board are unclear. He notes the commonwealth has exclusive control of execution session Board minutes and discovery in the case has not occurred.

The court has not yet scheduled the 9A hearing on the matter. If it finds Walsh’s termination valid, his case likely falls apart. If the court finds for Walsh, it will then consider whether to remove the injunction on the Board. Presumably, if the injunction falls, the Board would quickly move to terminate Walsh subject to any conditions the court imposes.