PAUL C. NORDBERG vs. MASSACHUSETTS DEPARTMENT OF EDUCATION & others. [Note 1]

BROWN, J. The pro se plaintiff, Paul C. Nordberg, is certified

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by the Department of Education (DOE or department) as a school business administrator. The Education Reform Act of 1993 (the Act) provides that school districts may hire only "certified" school business administrators. See G. L. c. 71, § 38G, as amended through St. 1993, c. 495, § 26. The DOE commissioner, however, may grant one-year waivers of the certification requirement if a school district has established, "in the opinion of the commissioner," that compliance would be a "great hardship."

Nordberg's detailed amended complaint, filed against the DOE, the DOE commissioner in his individual capacity (commissioner), and the Commonwealth, alleged numerous specific instances in which he applied for particular positions that later went to uncertified applicants after a department waiver. [Note 2]

The defendants filed a motion to dismiss the amended complaint, which was allowed. The motion judge ruled that the Commonwealth and the DOE were immune from suit, because claims asserted against both were based on a discretionary function, and, as such, were barred by the Massachusetts Tort Claims Act. See G. L. c. 258, § 10(b). The judge also ruled that the commissioner, as a public employee acting within the scope of his employment, was immune from personal liability pursuant to G. L. c. 258, § 2. [Note 3] Nordberg has appealed from the judgment dismissing his complaint.

1. Discretionary function exception. On appeal, the government defendants maintain that the commissioner has complete discretion under the Act to determine whether compliance with the certification requirements would "constitute a great hardship." G. L. c. 71, § 38G. [Note 4] They also argue that the Act and the regulations leave it entirely to the commissioner's discretion to determine whether a school district has demonstrated "a

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good-faith effort to hire licensed or certified personnel, and has been unable to find them." 603 Code Mass. Regs. § 7.14(13) (2007).

Nordberg avers, however, that the waiver process is automatic. According to his complaint, all that a school district needs to do to obtain a waiver is to submit a request, electronically, that certifies as to "hardship," and that all such requests are granted, again electronically, with no evaluation or review being conducted by the commissioner or by anyone else in the department.

The question, then, is whether such a process amounts to the exercise of discretion. We conclude that it does not. The Legislature has determined that the public is best served if school districts hire only school business administrators who have satisfied the requirements to become "certified." A school district may obtain a one-year waiver only if, "in the opinion of the commissioner" (emphasis added), compliance would be a "great hardship." G. L. c. 71, § 38G.

The defendants contend that they are entitled to discretionary immunity. Although such immunity is broad, it is not so broad as to include nondiscretionary functions. Here, accepting as true the allegations in Nordberg's well-pleaded complaint [Note 5] for purposes of this rule 12(b)(6) motion, see Nader v. Citron, 372 Mass. 96 (1977), the commissioner -- contrary to the mandate of the Legislature -- divested himself of the discretion he was statutorily required to exercise in order to form an opinion as to whether to grant or deny a waiver. Discretion was neither exercised nor abused; it was extracted entirely from the process and set aside. In these circumstances, discretionary immunity does not apply because, at bottom, no discretion was involved. See, e.g., United States v. Gaubert, 499 U.S. 315, 325 (1991) ("[a] discretionary act is one that involves choice or judgment"). If, as Nordberg avers, all waiver requests were automatically granted electronically, we fail to see how such actions "involved the kind of policy judgment that the discretionary function exception was designed to shield." Id. at 332. The discretion that ought to be involved in deciding waivers entails "weighing

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alternatives and making choices with respect to public policy and planning," as opposed to conduct that consists of "the carrying out of previously established policies or plans." Harry Stoller & Co. v. Lowell, 412 Mass. 139 , 142 (1992), quoting from Whitney v. Worcester, 373 Mass. 208 , 218 (1977). [Note 6]

2. Constitutional claims. Nordberg's complaint also alleged due process and equal protection violations. The motion judge did not rule on these claims. Nordberg alleged that, in some instances, the licensing statute was circumvented in order that friends or benefactors of the appointing authorities could be rewarded. If the Act was systematically undermined for this purpose, such actions would represent an abuse of power that would "shock[] the conscience," see Rochin v. California, 342 U.S. 165, 172 (1952), and would be actionable. Compare Coyne v. Somerville, 972 F.2d 440 (1st Cir. 1992). Cf. Kennie v. Natural Resource Dept. of Dennis, 451 Mass. 754 , 761-762 & nn.14 & 15 (2008). [Note 7]

Conclusion. It was error to dismiss the plaintiff's complaint under the Massachusetts Tort Claims Act, based on the state of the pleadings in this action. Accepting the plaintiff's allegations as true, as is required by rule 12(b)(6), his complaint fairly states a claim upon which relief may be granted. [Note 8], [Note 9] As to the constitutional claims, the matter must be remanded for consideration

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by the motion judge in the first instance. Accordingly, the judgment is reversed and the matter is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.