UPDATED 11:30AM: To include a statement from Walsh’s attorney.

Play with firing and you get burned. (via YouTube/Mass Governor’s office)

A Hampden County Superior Court Judge has sided with the former(ish?) Hoyloke Soldiers’ Home Superintendent, ruling that Governor Charlie Baker’s termination of Bennett Walsh was not valid. The ruling, if upheld, could entitle Walsh to backpay and related damages dating back to then. Yet, Judge John Ferrara also made clear how His Excellency could eventually boot Walsh from the ship of state for good.

The ruling comes after a relatively short but arduous court battle arising from an outbreak of COVID-19 at the Soldiers’ Home that left 76 infected veterans dead. Many facts remain in contention, but after learning about the conditions there, state Health & Human Services Secretary Marylou Sudders removed Walsh from his post. Walsh then filed suit to block the Home’s Board of Trustees from firing him. However, after receiving a report about virus’ spread there, Baker canned Walsh.

That move, Ferrara wrote, was not within the governor’s authority.

“The plain language of the termination letter indicates that the Governor merely approved the action of the Secretary of EOHHS, who had acted beyond the scope of her authority,” the judge wrote.

Ferrara may have only delayed the inevitable for Walsh, though. He also ruled Walsh is not entitled to a hearing under the Veterans’ Tenure Act. Thanks to Walsh’s lawsuit, originally filed in April, the Board of Trustees is under injunction barring his termination. Motions are pending to lift that bar. Once that happens, the Board could meet quickly to cut Walsh loose.

Still judicially alive and kicking (the governor…in the face). (via WBUR/SHNS)

After the outbreak and Walsh’s suspension, Baker hired Attorney Mark Pearlstein to investigate how COVID-19 could spread and ultimately kill a third of the veterans living there. Attorney General Maura Healey, US Attorney Andrew Lelling, the state inspector general and the legislature have launched probes, too.

That the litigation is not even over only underscores how Byzantine the legal issues have been. While the case started with Walsh’s suit to stop the Board from meeting, His Excellency’s summary termination of Walsh after Pearlstein’s report complicated matters further. (Walsh amended his complaint to reverse his firing). However, some of the issues date even further back to Baker’s original appointment of Walsh.

Ferrara ruled, as Walsh had argued, that the Home’s Board of Trustees has the ultimate oversight authority of the facility’s superintendent. That includes hiring and, by extension, firing. Originally, it seemed like the Baker administration’s strategy was to work through the Board. However, it abandoned that plan after the court refused to expedite removal of the injunction. Instead, the commonwealth argued Baker’s actions via Sudders were sufficient.

The commonwealth, namely HHS, argued that the governor’s supervisory authority over the Board and the superintendent gave him inherent the power to terminate. However, in doing so, he relied on a law that applies to the Chelsea Soldiers Home, not the one in Holyoke.

To support its application of the Chelsea law to Holyoke—despite Pearlstein noting the distinction in his report—the commonwealth claimed that to think otherwise would obviate Walsh’s appointment entirely. Baker’s appointment of Walsh in 2016 also invoked the incorrect law.

The court declared that argument cow excrement, too.

“At the Governor’s behest, the Board engaged in recruitment and interviews of prospective candidate for the Superintendent’s position in 2016, and referred three potential candidates to the Governor for his review,” the judge wrote. “The Governor selected Walsh.”

Walsh is out of here, but apparently not terminated. (WMP&I)

That Sudders and the governor cited the wrong statute when appointing Walsh was irrelevant. Walsh took the oath and served nearly four years, but Sudders was not in Walsh’s direct chain of command.  The governor could coordinate the Board as it was the entity that oversaw the superintendent’s position.

“His appointment through the Board was valid,” Ferrara continued. “His termination without input from the Board was not.”

Neither HHS nor the governor’s office immediately returned a request for comment on the ruling.

As a technical matter, the Board itself took no position on the motions the Court ruled on. Both Walsh and the commonwealth, again specifically HHS, filed for declaratory judgment and sought a ruling on the pleadings. Ferrara heard (Zoomed) oral arguments on September 8.

The commonwealth, acting through Sudders, had filed a counterclaim that originally stated that the Board of Trustees had identified several superintendent candidate but recommended no one to His Excellency. Pearlstein’s report had said the Board favored Walsh for the job. After WMP&I reported the counterclaim, the commonwealth quietly amended it to delete the contrary claim.

The court re: HHS Sec. Sudders? Wrong number. (via Mass.gov)

Both HHS and the Board have private counsel. Ostensibly because Healey is conducting her own investigation, her office could not represent these entities as it normally would

With this ruling in hand, the next issue is the injunction. Judge Frank Flannery originally imposed when Walsh filed suit. The sorta ex-superintendent will presumably fight to keep it for as long as possible. Flannery enjoined the Board because, Walsh argued his suspension prevented him from accessing staff, documents or correspondence. These might assist Walsh in any hearing on his termination. However, Ferrara may soon snap the injunction away after essentially saying Walsh has no right to a hearing.

“It is clear that the position of the superintendent of the Soldiers’ Home is a management position exempted from coverage under the [Veterans’ Tenure] Act,” Ferrera writes. Moreover, he adds, because the position is open-ended and not for a term, there is no requirement he only be let go “for cause.”

In statement Tuesday Morning, Walsh’s lawyer, William Bennett suggested that his client had become a scapegoat for the administration.

“For several months Superintendent Walsh has been vilified by Governor Baker, Secretary Sudders and others. I hope that this decision will allow people to consider that perhaps that criticism is unfair and that the actual story of what happened has not yet been understood,” Bennett said.

Bennett did not address the part of Ferrara’s ruling that said there was no right to a hearing.

Walsh may still have avenues to sue the commonwealth regarding his termination. The seemingly bolloxed effort to fire him could fuel other claims against the commonwealth in addition to any lost wages. Presumably, in a purely HR sense, Walsh terminated back on June 24.

Not so friendly confines for His Excellency. (WMP&I)

Earlier this year, Walsh’s lawyer (and uncle), a former Hampden County District Attorney, argued Pearlstein got a lot wrong in his report. Likewise, in his statement Tuesday, said the tragedy unfolded despite the best efforts of the staff.

“A true inquiry into the Covid outbreak at the Soldiers’ Home should focus on the science,” Bennett added.

Pearlstein did not heap much blame on Baker or Sudders, but one Walsh superior was in his cross hairs. Veterans Services Secretary Francisco Urena resigned ahead of the report’s release.

Even if some of Bennett’s claims amble around the speculation, a growing chorus of officials, pols and veterans advocates are questioning the Baker administration’s oversight of the Home.

While Baker has received some praise for finally moving on a renovation project of the home—after delaying it—legislators remain skeptical of his reform proposals. They are considering changes to oversight an funding of the Home. The legislature’s joint House-Senate report is due in March.