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SJC-12095

 RENEE PERULLO     vs.   ADVISORY COMMITTEE ON PERSONNEL STANDARDS.



            Suffolk.     January 9, 2017. - April 24, 2017.

Present:     Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.1


Public Employment, Removal. Trial Court. District Court. Due
     Process of Law, Employment, Termination of employment.



     Civil action commenced in the Superior Court Department on
January 12, 2015.

     The case was heard by Elizabeth M. Fahey, J., on motions
for judgment on the pleadings.

     The Supreme Judicial Court granted an application for
direct appellate review.


     John F. Tocci (Cary P. Gianoulis also present) for the
plaintiff.
     Suleyken D. Walker, Assistant Attorney General, for the
defendant.


     BOTSFORD, J.      In 2014, the clerk-magistrate of the Salem

Division of the District Court Department (Salem District Court)

     1
       Justice Botsford participated in the deliberation on this
case and authored this opinion prior to her retirement.
                                                                      2


removed the plaintiff, Renee Perullo, from her position as an

assistant clerk-magistrate of that court.     Perullo's removal

followed a lengthy series of disciplinary reprimands and

suspensions for misconduct that included abuse of leave time and

other inappropriate behavior.   Perullo brought this action in

the nature of certiorari in the Superior Court to challenge her

removal, and contends that the decision to remove her exceeded

the statutory authority of the clerk-magistrate, in any event

was arbitrary or capricious, and also violated her

constitutional guarantee of due process.     In ruling on cross

motions for judgment on the pleadings, a Superior Court judge

rejected Perullo's contentions and upheld the removal decision.

Given Perullo's history of misconduct, we agree that it was

appropriate for the clerk-magistrate to factor in the whole of

Perullo's disciplinary record in deciding that removal was the

appropriate level of discipline.   We affirm the judgment of the

Superior Court.

    Background.2   Perullo began her employment with the

Commonwealth's trial court system in 1989.     At the time of her

removal in June, 2014, Perullo served as an assistant clerk-

magistrate of the Salem District Court.     According to § 2.000 of

    2
       The background facts stated here are taken from the
administrative record filed by the defendant in the Superior
Court as its answer to Renee Perullo's complaint in the nature
of certiorari.
                                                                     3


the Massachusetts Trial Court Personnel Policies and Procedures

Manual (Jan. 7, 2013) (Manual), an assistant clerk is a

"managerial employee."

    Perullo maintained a clean disciplinary record until 2006.

Thereafter, she was disciplined numerous times by various

District Court clerks.     As detailed below, Perullo's

disciplinary infractions generally fell into two categories --

excessive absenteeism and inappropriate behavior.

    In February, 2006, Perullo agreed to a ten-day suspension

without pay due to "inappropriate behavior" with a member of the

Salem police department.    In November, 2006, after agreeing to

an indefinite transfer to the Lynn Division of the District

Court Department (Lynn District Court), Perullo received a

written warning for her use of profanity during a discussion

with the clerk-magistrate of that court.     In January, 2007, the

clerk-magistrate requested that Perullo not return to the Lynn

District Court based on the profanity incident, along with her

failure to properly stamp certain criminal files, one of her

assigned responsibilities.

    In May, 2008, while assigned to work in the Chelsea

Division of the District Court Department, Perullo made

disparaging remarks about Spanish-speaking persons during a

recess in court proceedings.    As a result, the presiding judge

of that court requested that Perullo be reassigned, and Perullo
                                                                     4


ultimately was placed on administrative leave for approximately

one week.

    In November, 2009, after being transferred back to the

Salem District Court, Perullo was removed from the payroll after

exhausting all of her accrued leave time.   Perullo's supervisor,

Clerk-Magistrate Brian Lawlor, advised her not to abuse her sick

time because it had an adverse impact on the administration of

the court.   On a day in June, 2010, Perullo did not report to

work in the morning, but called in sick at some point after

noon.   Shortly thereafter, she was again removed from the

payroll, having again exhausted all of her accrued leave time.

Ultimately, Lawlor issued Perullo a written reprimand, informing

her that any continued sick time abuse or insubordination could

result in further disciplinary action, "up to and including

termination."

    The following month, Perullo was suspended without pay for

five days after an "altercation" with two correction officers in

the court parking lot.   In June, 2011, Perullo was again

suspended without pay, this time for one month.   The suspension

was based on twelve violations of court rules governing persons

authorized to take bail, nine violations of the standards of

employee conduct, and other infractions.    In a letter describing

these violations, Lawlor informed Perullo that, in light of her

entire disciplinary record, Lawlor at that time believed he had
                                                                      5


the authority to terminate Perullo.     However, Lawlor informed

Perullo that, instead of termination, he would impose a two-

month suspension without pay.   In a subsequent written agreement

that reduced the suspension to one month, Perullo, after

consulting with and being advised by counsel, agreed to "accrue

and use sick time properly" pursuant to the Manual, and

"acknowledge[d] that any further disciplinary action [was]

likely to result in her termination."

    In February, 2014, Lawlor issued Perullo another written

reprimand regarding her "pattern of abuse" of leave time.    This

memorandum explained that between January, 2012, and February,

2014, Perullo had only worked one two-week pay period during

which she did not use any time off, and as a result she had just

over six days of accumulated time off remaining.     The reprimand

memorandum also expressed Lawlor's view that Perullo had

"transformed [her] full-time job into a part-time one" and

informed her that any further "abuse" of her leave time "[would]

result in disciplinary action."   Subsequently, in March, 2014,

Perullo was verbally reprimanded for distracting and

unprofessional conduct in the court room.

    In June, 2014, Lawlor convened a disciplinary hearing,

after having provided written notice to Perullo in May.     At the

hearing, Perullo was represented by counsel.     The purpose of the

hearing was to determine whether cause existed to discipline
                                                                    6


Perullo based on two grounds.     The first was her "continuous

abuse of sick and vacation time" despite the February, 2014,

written reprimand.3   The second ground stated was Perullo's

alleged failure to pay a local business owner for renting a

parking space near the Salem District Court House.    Following

the hearing, Lawlor determined that both grounds provided cause

to impose discipline, and he set forth his findings in a letter

to Perullo dated June 11, 2014.

     In support of the first ground for discipline charged,

Lawlor found that between February and June, 2014, there were

only three weeks in which Perullo worked a full work week.     He

outlined Perullo's prior attendance-based discipline, noting in

particular how, in February, 2014, he told Perullo that her

pattern of sick time abuse could result in further discipline,

as well as "removal from the payroll, which is unacceptable for

any person, especially one in a senior management position."

Lawlor also found that Perullo's "pattern of conduct" had not

changed since the February warning, but rather that she had

"continue[d] to fail to appear at work."    Lawlor further found

that Perullo's pattern of conduct "adversely affect[ed] [his]

ability to manage this office and this court," and that her

     3
       Unfortunately, the record makes no effort to distinguish
between Perullo's use of sick time and her use of vacation time.
However, we do not think that this distinction would alter our
analysis in this case.
                                                                       7


"continued absences from work [left them] short-handed."        As a

result of these findings, Lawlor concluded that Perullo had

violated three personnel rules:     §§ 16.100.B.1 (failure to

comply with reasonable order), 16.100.B.16 (chronic absences in

reporting to work), and 16.100.B.22 (conduct that undermines

administration of court) of the Manual.

    With respect to the second ground for discipline, Lawlor

stated in his letter that he learned of the parking space issue

in April, 2014, when the business owner contacted Lawlor at the

Salem District Court House to express dissatisfaction that one

of Lawlor's employees failed to pay for parking at the business

owner's establishment.     The business owner informed Lawlor that

Perullo had agreed to rent the space starting in late 2011 for

sixty dollars per month.    However, Perullo soon fell behind in

her payments, and ignored efforts by the business owner to

collect on three months of unpaid rent.     Lawlor also stated that

he was "loath[] to delve into someone's personal issues," but

found that Perullo knowingly and voluntarily entered into the

parking arrangement in furtherance of her position at the Salem

District Court, and then intentionally ignored the business

owner and failed to pay for services rendered.    Lawlor concluded

that this conduct violated four personnel rules:     §§ 16.100.B.3

(discourtesy to public), 16.100.B.22 (conduct that undermines

administration of court), 16.100.B.23 (conduct that tends to
                                                                    8


bring court into disrepute), and 16.100.B.24 (conduct unbecoming

trial court employee) of the Manual.

     Having found that both alleged grounds for discipline were

proved, Lawlor considered Perullo's entire disciplinary record

to determine the appropriate discipline.   Ultimately, he decided

to terminate her employment.

     Following the recommendation of the trial court's human

resources department, the Court Administrator approved Lawlor's

decision to remove Perullo.4   Pursuant to G. L. c. 211B, § 8

(§ 8), and § 16.800 of the Manual, Perullo sought review of

Lawlor's decision by the Advisory Committee on Personnel

Standards (committee).5   After a hearing, the committee affirmed

the decision in November, 2014.

     Perullo thereafter timely filed her complaint in the nature

of certiorari in the Superior Court to challenge the removal


     4
       Pursuant to the Massachusetts Trial Court Personnel
Policies and Procedures Manual (Jan. 7, 2013) (Manual), the
decision of Clerk-Magistrate Brian Lawlor, as Perullo's
appointing authority, to remove Perullo was subject to approval
by the Court Administrator after a review and recommendation of
the trial court's human resources department. See § 16.700.B of
the Manual.
     5
       The Advisory Committee on Personnel Standards (committee)
is established pursuant to G. L. c. 211B, § 8 (§ 8). Its
members are the Chief Justice of the Trial Court, the Chief
Justices of the seven trial court departments, the Court
Administrator, the Commissioner of Probation, a clerk of the
Superior Court, a clerk of the District Court, and a register of
probate. See G. L. c. 211B, § 8, first par.
                                                                      9


decision.6   Perullo and the committee filed cross motions for

judgment on the pleadings.     After hearing, the judge allowed the

committee's motion, and entered judgment for the committee.

Perullo appealed, and this court allowed Perullo's application

for direct appellate review.

     Discussion.   We review de novo the allowance of a motion

for judgment on the pleadings.    Champa v. Weston Pub. Schs., 473

Mass. 86, 90 (2015).    Although the record before us does not

contain the parties' pleadings in the Superior Court action, it

appears that Perullo advanced essentially the same arguments in

the Superior Court as she does on appeal.    In particular,

Perullo's appeal raises three issues:     (1) whether the removal

of an assistant clerk-magistrate comes within the scope of § 8;

(2) whether the decision to remove Perullo was arbitrary or

capricious, and therefore violated § 8; and (3) whether Perullo

was afforded adequate procedural protections such that the

constitutional guarantee of due process was satisfied.    We

address each in turn.

     1.   The scope of G. L. c. 211B, § 8.    Section 8, as amended

through St. 2011, c. 93, § 52, establishes and defines the


     6
       Perullo appropriately named the committee as the defendant
because its affirmance of Lawlor's decision was the final
decision of the administrative process, but there is no dispute
that the focus of review in this action in the nature of
certiorari is Lawlor's decision to remove Perullo.
                                                                     10


duties of the committee (see note 5, supra), but it also

concerns the duty of the Court Administrator to establish

employment standards governing certain trial court employees,

and defines the standard and procedures for the removal of the

employees covered by that statute.    Thus, § 8 provides in part:

            "The committee shall advise the court administrator
       who shall establish and promulgate standards for the
       appointment, performance, promotion, continuing education
       and removal of all personnel within the trial court, except
       judges, clerks and registers of probate . . . .

            "Subject to the terms of applicable collective
       bargaining agreements, any officer or employee whose
       appointment is subject to the provisions of this section
       may be removed by the appointing authority, in accordance
       with the standards promulgated by the committee; provided,
       however, that any such removal is not for arbitrary or
       capricious reasons and, if the employee so requests, is
       approved by the [c]ommittee. Every removal of an officer
       or employee whose appointment was subject to the provisions
       of this section shall be reviewed by the committee, and no
       such removal shall be final until approved by the
       committee" (emphases added).

       Perullo argues that she does not come within the scope of

§ 8, because "judges, clerks and registers of probate" are

excepted from the section's coverage and, as an assistant clerk-

magistrate, she qualifies as a "clerk" within the exception.

The argument fails.

       Section 8 exempts from its scope "clerks."   G. L. c. 211B,

§ 8.    It never mentions "assistant clerks."   See id.   Clerks and

assistant clerks are two distinct positions, as related sections

of c. 211B make clear.    See Commissioners of the Bristol County
                                                                  11


Mosquito Control Dist. v. State Reclamation & Mosquito Control

Bd., 466 Mass. 523, 528–529 (2013), and cases cited (court

should interpret section of particular chapter not in isolation,

but rather "in relation to the over-all framework" of chapter).

In particular, G. L. c. 211B, § 10B, discusses the standards

applicable to the "[a]ppointment of assistant clerks."   This

section vests "clerks" with the "exclusive authority" to appoint

"assistant clerks" and describes the procedure that "clerks"

must follow to make such appointments.   It is difficult to

conceive of a statute that more clearly distinguishes between

"clerks" and "assistant clerks."7   Yet, Perullo contends that the

Legislature, just sections earlier in the same chapter of the

General Laws, used the term "clerks" to denote both "clerks" and

"assistant clerks."   When statutes relate to the same subject

matter, we must read them "as a harmonious whole and avoid

absurd results" (citation omitted).   Connors v. Annino, 460

Mass. 790, 796 (2011).   We therefore reject Perullo's argument

because it is clear to us that, in § 8, the Legislature has

purposefully distinguished between "clerks" and "assistant

clerks."




     7
       See G. L. c. 218, §§ 1 (defining "clerks" as distinct from
"assistant clerks"), 10 (providing that clerk of District Court
"may . . . appoint one or more assistant clerks").
                                                                    12


     2.   Certiorari review.   In an action in the nature of

certiorari, "the standard of review may vary according to the

nature of the action for which review is sought."    Forsyth Sch.

for Dental Hygienists v. Board of Registration in Dentistry, 404

Mass. 211, 217 (1989).   Under § 8, an assistant clerk-magistrate

such as Perullo may be removed from her employment by her

appointing authority -- here, Lawlor as the clerk-magistrate of

the Salem District Court -– as long as the removal (1) was not

for "arbitrary or capricious reasons," (2) followed the

personnel standards promulgated pursuant to that statute, and

(3) was approved by the committee.   See G. L. c. 211B, § 8,

fifth par.8   Perullo does not contest the second or third of

these rationales -– that is, she does not argue that her

termination violated the governing personnel standards,9 or that

Lawlor's decision lacked approval by the committee.    At bottom,

therefore, Perullo's appeal centers on the claim that Lawlor's

decision was arbitrary or capricious.10   "A decision is arbitrary


     8
       The relevant language of § 8, fifth par., is quoted in the
text, supra.
     9
       To the contrary, she argues that the committee's
standards, although followed, were "clearly deficient" under a
due process lens. We discuss this argument, infra.
     10
       To the extent that Perullo suggests that a substantial
evidence standard should govern, the plain language of the
statute forecloses that argument. As the language of § 8 quoted
previously in the text demonstrates, a covered employee may be
                                                                   13


or capricious . . . where it 'lacks any rational explanation

that reasonable persons might support.'"11   Frawley v. Police

Comm'r of Cambridge, 473 Mass. 716, 729 (2016), quoting Doe v.

Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 (2002).      We

consider Lawlor's decision to remove Perullo under this

standard.

     Lawlor's decision was based on his findings and conclusions

about Perullo's excessive leave-taking as a management employee,

as well as her inappropriate conduct in failing to pay for her

rented parking space near the court house.   Based on these two

infractions, Lawlor considered the whole of Perullo's

disciplinary record and terminated her.   Perullo offers

essentially three reasons why this was arbitrary or capricious:

(1) her time off was always approved by her supervisors,




removed so long as the removal comports with the committee's
standards, is approved by the committee, and is "not for
arbitrary or capricious reasons." G. L. c. 211B, § 8, fifth
par. Accordingly, the statute, in an action in the nature of
certiorari such as this one, imposes an arbitrary or capricious
standard of review, not a substantial evidence standard.
     11
       Court decisions reflect that the phrases "arbitrary and
capricious" and "arbitrary or capricious" are used essentially
interchangeably, and typically denote the same standard. See,
e.g., Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 728–
729 (2016) (using "and" and "or" formulations interchangeably);
Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 5–6
(2002) (same); T.D.J. Dev. Corp. v. Conservation Comm'n of N.
Andover, 36 Mass. App. Ct. 124, 128 (1994) (same).
                                                                  14


including, implicitly, Lawlor,12 and therefore cannot constitute

"abuse"; (2) the facts surrounding the parking space dispute

were unverified and, in any event, were an inappropriate basis

for imposing discipline; and (3) Lawlor imposed a new punishment

for old disciplinary infractions.   None of these arguments

succeeds.

     As a general matter, Perullo's arguments misapprehend the

considerable managerial discretion that a District Court clerk-

magistrate possesses.   A clerk has "exclusive authority" to

appoint assistant clerks.   G. L. c. 211B, § 10B.    As the

appointing authority, the clerk also is vested with the power to

remove assistant clerks, within the bounds of § 8, fifth par.

In this regard, it is important to recognize the Legislature's

decision, in 2011, to amend § 8 and replace what was a "for

cause" termination standard with the current one, which allows

termination for any reason that is not arbitrary or capricious,

so long as the committee's standards are followed.    Compare St.

1978, c. 478, § 110, inserting G. L. c. 211B, § 8 ("An officer


     12
       More specifically, Perullo argues that, following the
February, 2014, memorandum, she requested permission to take
time off from her immediate supervisor, the first assistant
clerk-magistrate, who approved those requests. Further, she
argues that Lawlor was responsible for reviewing payroll
records, including time off, for all court staff on a biweekly
basis, and that by failing to object to Perullo taking any time
off based on his regular review of payroll records, Lawlor
"tacitly approved" her leave time.
                                                                  15


or employee whose appointment is subject to the provisions of

this section may be removed for cause by the appointment

authority" [emphasis added]), and St. 1992, c. 379, § 76,

amending G. L. c. 211B, § 8 (retaining "for cause" standard),

with St. 2011, c. 93, § 52, amending G. L. c. 211B, § 8 ("[A]ny

officer or employee whose appointment is subject to the

provisions of this section may be removed by the appointing

authority . . . provided, however, that any such removal is not

for arbitrary or capricious reasons" [emphasis added]).

    Considering Lawlor's first ground for removal, Perullo's

alleged abuse of leave time, we are not persuaded by Perullo's

contention that a supervisor's approval of her requests to take

time off forecloses the possibility that she was misusing her

leave time, at least not in the particular circumstances of this

case.   We recognize that, when Lawlor reprimanded Perullo in

February, 2014, for abuse of leave time and when he terminated

her in June, 2014, she maintained a positive balance of leave

time; we of course also recognize that trial court employees

generally are entitled to take the leave time that they accrue.

However, three interrelated factors influence our analysis in

this case.

    First, a significant consideration here is the fact that

Perullo was a "managerial" employee.   See § 2.000 of the Manual.

Managerial employees are "expected to perform their
                                                                       16


responsibilities at a high level of competence."      See § 16.300

of the Manual.    One of the specific responsibilities of a

managerial employee is to "work the hours needed or required by

the operational needs of a particular court . . . providing

reasonable notice is given."     See § 8.100 of the Manual.      The

reason for that responsibility is that the work of a managerial

employee sometimes is defined not "in terms of hours, days or

weeks," but rather by the demands of "the orderly administration

of justice."     See id.   To this point, Lawlor specifically

informed Perullo, in February, 2014, that her pattern of

absences was "unacceptable for any person, especially one in a

senior management position," and that any further issues with

leave time would result in discipline.      Yet, over the next

fifteen weeks, Perullo worked a full work week only three

times.13   Regardless of whether these absences were approved by a

supervisor on a case-by-case basis, Perullo had ample notice

that engaging in such a pattern of behavior was virtually

certain to result in further discipline by Lawlor because it




     13
       The record does not specify precisely when Perullo took
time off in the other twelve weeks. However, Lawlor did state
that, in that span, Perullo took over forty-seven hours of time
off, in addition to using all five of her personal days.
Roughly, that averages out to Perullo being out of the office
for about one working day for twelve out of fifteen weeks
following Lawlor's February, 2014, warning.
                                                                   17


failed to meet his -- and, importantly, the Manual's --

expectations for a "managerial" employee.

     Second, it was reasonable for Lawlor to determine that

Perullo's habitual absences, effectuated by drawing down her

leave time as soon as it accrued, constituted "chronic

absences," see § 16.100.B.16 of the Manual, that disrupted the

court's work,14 see § 16.100.B.22 of the Manual (permitting

discipline for "conduct that undermines the administration of

the court").   It is well-documented that a clerk-magistrate like

Lawlor "performs many roles that are crucial to the fair and

efficient administration of justice in a District Court."

Matter of Powers, 465 Mass. 63, 66 (2013).    See id. at 66-68

(discussing duties of clerk-magistrate).    Most pertinent here,

the clerk-magistrate is part of the over-all "senior management

team" in each court house, "working collaboratively to ensure

the fair, effective, and efficient administration of justice."

Id. at 68.   That role gives important texture to Lawlor's

admonition to Perullo, in February, 2014, that he was unable to

"ensure the efficient administration of this office if

individuals at all levels did not appear at work as required,


     14
       Perullo mentions in passing that some of her days off may
have been related to Ménière's Disease. To the extent that she
may believe she was wrongfully terminated on the basis of that
ailment, such an argument is not developed in the record before
this court and we do not decide the question.
                                                                     18


and that adversely impacts [his] ability to run [his] office."

Perullo, in response to this warning, utterly failed to change

her behavior.   Perullo might stand on different footing if she

had not already been reprimanded repeatedly for exhausting her

leave time.   But Perullo's disciplinary history lends further

credence to Lawlor's position that her "chronic absences"

represented a managerial problem in terms of his ability to

staff the court house consistently.     Given that history, Lawlor

was not obligated to stand idly by as Perullo continued to use

her leave time as soon as it accrued.

    Third, even assuming for the sake of argument that

Perullo's absences by themselves did not constitute abuse of the

trial court's leave policies, she had agreed with Lawlor, in

2011 and again in 2014, to cease her "pattern of abuse" of leave

time -- in other words, to stop using her leave time as soon as

it accrued.   It certainly was not unreasonable for Lawlor to

conclude, based on Perullo's post-February, 2014, conduct, that

she ignored this agreement, thereby violating the trial court

policy permitting discipline for "failure or refusal to comply

with a reasonable order."   See § 16.100.B.1 of the Manual.

    It also was not irrational or unreasonable for Lawlor to

treat the parking space dispute as a basis of his decision.      The

personnel standards permit discipline for discourtesy to the

public, see § 16.100.B.3 of the Manual; conduct that tends to
                                                                   19


bring the court into disrepute, see § 16.100.B.23 of the Manual;

and conduct unbecoming a trial court employee, see § 16.100.B.24

of the Manual.   Because Lawlor received a telephone call at his

office regarding Perullo's failure to pay for the parking space,

it is evident both that the business owner knew that Perullo was

a court employee and that Perullo's use of the parking space was

connected to her court job.   Lawlor rationally could conclude

that this conduct constituted a violation of any of the policies

mentioned above.   If Perullo were starting from a clean

disciplinary slate, the parking space dispute, perhaps, might be

more questionable as a basis for discipline.   But given

Perullo's history of inappropriate conduct, including very

public, work-related confrontations with and outbursts about

others, Lawlor acted well within his discretion to investigate

the parking space dispute and, after hearing Perullo's response,

to treat the parking dispute as a cause for discipline.

    Finally, after concluding that Perullo's absenteeism and

the parking space dispute warranted discipline, it was neither

arbitrary nor capricious for Lawlor to consider Perullo's entire

disciplinary record when determining the appropriate sanction.

Perullo's argument would have more force if the "for cause"

standard for removal of a trial court employee remained in

place, or if Lawlor were still obligated to use progressive

discipline for a management employee like Perullo.   But, as
                                                                     20


discussed, the "for cause" regime has been replaced by the

"arbitrary or capricious" standard currently prescribed by § 8,

and progressive discipline does not apply to management

employees like Perullo.     See §§ 16.400 and 16.500 of the Manual.

In these circumstances, we conclude that Lawlor acted well

within his broad managerial discretion to factor the history of

Perullo's prior disciplinary offenses into his sanction and to

determine that, given Perullo's long disciplinary record, the

two new infractions constituted the proverbial "last straw" that

made removal the appropriate level of discipline.

     3.   Due process.    Finally, Perullo argues that the process

by which she was terminated was procedurally defective and

violated the constitutional guarantee of due process of law.15

"The threshold issue in a procedural due process action is

whether the plaintiff had a constitutionally protected property

interest at stake."   See Mard v. Amherst, 350 F.3d 184, 188 (1st

Cir. 2003), citing Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 538-541 (1985).    Such a property interest may derive

from existing rules or independent sources, such as State law.




     15
       Perullo does not specify whether she relies on the United
States Constitution or the Massachusetts Declaration of Rights.
However, "[t]he protection afforded property interests by both
provisions is subject to the same analysis." School Comm. of
Hatfield v. Board of Educ., 372 Mass. 513, 515 n.2 (1977).
                                                                   21


Mard, supra at 189, citing Board of Regents v. Roth, 408 U.S.

564, 577 (1972).

    As discussed, § 8 permitted Perullo's removal for any

reason that was not arbitrary or capricious, provided she

received the protections provided by applicable statutes and

rules.   Thus, assuming for the sake of argument that Perullo had

a constitutionally protected property interest in continued

employment, due process was satisfied by compliance with § 8 and

the personnel standards and policies promulgated by the Court

Administrator and the committee, which included an opportunity

for hearing before any discipline was imposed.   See § 16.500 of

the Manual.   See also Roth, 408 U.S. at 577 (property interests

"are created and their dimensions are defined by . . . an

independent source such as state law").

    Perullo has demonstrated no deviation from the governing

statute or rules.   Lawlor provided Perullo with written notice

of the disciplinary hearing that resulted in her termination and

the grounds that he alleged warranted discipline, along with the

ability to appear with counsel at that hearing and to respond to

the allegations orally or in writing.   Perullo took advantage of

this opportunity and both attended and participated in the

hearing with her counsel.   After the hearing's conclusion,

Lawlor set forth in detail, in a written letter of decision, his

findings and reasons for the discipline he ultimately imposed.
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Consistent with the governing policies, the trial court's human

resources department reviewed Lawlor's decision, and the court

administrator approved it.   Finally, as contemplated by § 8, the

committee held a hearing that Perullo attended and at which her

counsel presented arguments, before it affirmed the decision.

These steps fulfilled the procedural protections promised by the

relevant statute and rules, and in any event satisfied the

demands of due process by providing Perullo with a full and fair

opportunity to be heard.   See Matter of Powers, 465 Mass. at 80-

81 (where clerk-magistrate had constitutionally protected

interest in his position, due process was satisfied when he

received full and fair hearing before any meaningful deprivation

occurred).

    Perullo also suggests that Lawlor was unfairly biased

against her based, in part, on his position as investigator and

adjudicator regarding the parking space dispute.   Both the

Unites States Supreme Court and this court have rejected the

notion that it necessarily violates due process to combine

adjudicatory and investigative functions.   See D'Amour v. Board

of Registration in Dentistry, 409 Mass. 572, 580 (1991), and

cases cited.   More to the point, Lawlor, far from being biased

against Perullo, allowed her several opportunities to correct

her behavior before deciding to remove her.   Accordingly,

"[t]here has been no additional showing of actual bias to
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support a claim of lack of impartiality."    Harris v. Board of

Trustees of State Colleges, 405 Mass. 515, 522 (1989).

    Similarly, we reject Perullo's contention that the five-

month delay between Lawlor's decision to terminate her and the

committee's hearing was so untimely that it created an

independent due process violation.   We recognize that five

months is a significant period of time to wait for a

posttermination hearing.    No explanation for this delay is

apparent on the record, and the committee does not offer one in

its brief.   Although it would have been preferable for the

committee to have held its hearing and made its decision on a

more expedited basis, longer delays have been found to satisfy

the demands of due process, and Perullo has not demonstrated any

specific reason why the passage of time here resulted in a

constitutional violation.   See Loudermill, 470 U.S. at 547

(nine-month delay, without more, not unconstitutional).

    Conclusion.    For the reasons discussed, the Superior Court

judgment is affirmed.

                                     So ordered.
