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SJC-13412

FAIRHAVEN HOUSING AUTHORITY & others1 vs. COMMONWEALTH & 

another.2

Suffolk. October 2, 2023. - November 6, 2023.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt, 

& Georges, JJ.

Department of Housing and Community Development. Housing 

Authority. Contract, Employment. Statute, Construction, 

Amendment. Declaratory Relief. Practice, Civil, 

Declaratory proceeding, Motion to dismiss. Administrative 

Law, Agency's authority.

Civil action commenced in the Superior Court Department on 

January 9, 2020.

A motion to dismiss was heard by Rosemary Connolly, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

1 Lawrence Housing Authority, Medford Housing Authority, 

Nantucket Housing Authority, Provincetown Housing Authority, 

Stoneham Housing Authority, Sudbury Housing Authority, Renee H. 

Ceely, Kristin Hatch, Efrain Rolon, Sharon Wilkins, Brian 

Costello, and the Massachusetts Chapter of the National 

Association of Housing and Redevelopment Officials.

2 Department of Housing and Community Development.
2

Michele Randazzo for the plaintiffs.

Eric A. Haskell, Assistant Attorney General, for the 

defendants.

Frank A. Flynn, for Southeastern Massachusetts Executive 

Directors Association & others, amici curiae, submitted a brief.

WENDLANDT, J. This case presents the question whether 

G. L. c. 121B, § 7A, grants the Department of Housing and 

Community Development (DHCD)3 the authority to decline to approve

employment contracts between local housing authorities (LHAs) 

and their executive directors where those contracts fail to 

conform to DHCD's guidelines. Concluding that it does, we 

affirm the well-reasoned decision of the Superior Court judge 

dismissing the declaratory judgment complaint.4

1. Background. "We summarize the factual allegations set 

forth in the complaint and in the undisputed documents 

incorporated by reference in the complaint." Osborne-Trussell

v. Children's Hosp. Corp., 488 Mass. 248, 250 (2021). We 

"accept[] as true all well-pleaded facts alleged in the 

3 In 2023, DHCD changed its name to the Executive Office of 

Housing and Livable Communities and became a cabinet-level 

secretariat. In the past DHCD was referred to as the Department 

of Community Affairs. In keeping with the complaint and briefs, 

we refer to the agency as DHCD.

4 We acknowledge the brief of amici curiae Southeastern 

Massachusetts Executive Directors Association, Central Executive 

Directors Association, North Shore Executive Directors 

Association, Small Housing Authority Directors Organization, and 

Western Massachusetts Housing Authority Executive Directors 

Association.
3

complaint." Id. at 253, quoting Ryan v. Mary Ann Morse 

Healthcare Corp., 483 Mass. 612, 614 (2019).

The plaintiffs are LHAs of various cities and towns in the 

Commonwealth, current and former executive directors of LHAs, 

and the Massachusetts chapter of the National Association of 

Housing and Redevelopment Officials, a membership association of 

LHAs, community development agencies, and housing and 

redevelopment officials. At the time of the complaint, DHCD was 

a department within the Commonwealth's Executive Office of 

Housing and Economic Development and, as "supervisor" of LHAs,

had the "power to oversee most phases of the operations of" 

them. West Broadway Task Force, Inc. v. Commissioner of the 

Dep't of Community Affairs, 363 Mass. 745, 748 (1973).

The plaintiffs allege that DHCD has exceeded its authority 

under G. L. c. 121B, § 7A, by promulgating guidelines, referred 

to as public housing notices (PHNs), that govern contracts 

between an LHA and its executive director in a manner that 

interferes with the authority of the LHA to "determine [the]

qualifications, duties and compensation" of its executive 

directors as provided by G. L. c. 121B, § 7. Among other things,

DHCD's guidelines require that contracts between an LHA and an 

executive director be in writing and be approved by DHCD. See 

Department of Housing and Community Development, PHN No. 2017-21 

at 2-3 (Sept. 7, 2017). The guidelines set forth an executive 
4

director's maximum allowable salary based on a formula and a 

schedule for executive director salary, including a capped 

maximum salary amount.5 See Department of Housing and Community 

Development, PHN No. 2019-21 at 3-4 (Sept. 16, 2019).

The guidelines also include a template agreement6 and 

require use of a cover sheet. See Department of Housing and 

Community Development, PHN No. 2017-25 at 2-4 (Oct. 31, 2017). 

DHCD's guidelines require contracts to include limitations on 

the numbers of hours for which the executive director may be 

compensated, a provision for binding arbitration for dispute 

resolution, and a "for cause" termination7 provision. Id. at 8, 

10, 13. An LHA executive director's benefits must be governed 

5 Four versions of the schedule have been published since 

the passage of G. L. c. 121B, § 7A. See Department of Housing 

and Community Development, PHN No. 2015-17 (July 1, 2015);

Department of Housing and Community Development, PHN No. 2018-

01; Department of Housing and Community Development, PHN No. 

2019-21 (Sept. 16, 2019); Department of Housing and Community, 

PHN No. 2022-02 (Jan. 26, 2022).

6 While DHCD does not make the template agreement mandatory, 

it "highly recommends use of this contract template in order to 

facilitate its prompt review and approval, and will provide 

expedited review for housing authorities utilizing the contract 

template." Department of Housing and Community Development, PHN

No. 2017-25 at 2 (Oct. 31, 2017). According to the plaintiff's 

complaint, DHCD has rejected "virtually all" contracts that do 

not follow its template agreement.

7 Under this provision, the LHA "may and, under certain 

circumstances . . . , shall terminate" the employment contract 

of its executive director for "any lawful reason in good faith 

relied upon by the [LHA]." PHN No. 2017-25, supra at 10.
5

by an LHA personnel policy approved by DHCD.8 Department of 

Housing and Community Development, PHN No. 2019-29 at 1 (Dec. 

11, 2019). The guidelines prohibit contracts that include 

provisions for longevity payments,9 automatic contract renewals 

or extensions, or indemnification of the executive director. 

PHN No. 2017-25, supra at 15.

DHCD has withheld funding and budget approvals when 

contracts depart from the guidelines. Several executive 

directors have accepted reduced compensation as a result of 

DHCD's approval process.

2. Procedural history. The plaintiffs filed a complaint 

pursuant to G. L. c. 231A, § 1, seeking a judgment declaring

that DHCD exceeded its authority by promulgating guidelines for 

contracts between LHAs and executive directors and making 

8 DHCD's guidelines require that executive director benefits 

may not exceed the "benefits available to DHCD's administrative 

union . . . employees." Department of Housing and Community 

Development, PHN No. 2019-29 at 1 (Dec. 11, 2019). However, 

"DHCD will review and consider a request for deviation from 

[state employee union benefit] standards so long as it can be 

demonstrated that the deviation is reasonable . . . and that the 

contract terms will not negatively impact either the financial 

condition of the [L]HA or the [L]HA's staff and coverage 

availability." Id. at 2.

9 Longevity payments refer to "increased compensation on the 

basis of increased years of service." PHN No. 2017-25, supra at 

15. DHCD began allowing such payments as "bonuses" in 2022, but 

the bonus cannot be used in calculating an executive director's 

retirement benefits. Department of Housing and Community 

Development, PHN No. 2022-16 (Sept. 21, 2022) at 3.
6

compliance with the guidelines a requirement to obtain 

contractual approval from DHCD. A Superior Court judge allowed 

DHCD's motion to dismiss the complaint under Mass. R. Civ. P. 

12 (b) (6), 365 Mass. 754 (1974).10 The plaintiffs timely 

appealed, and we transferred the case to this court on our own 

motion.

3. Discussion. "We review the allowance of a motion to 

dismiss de novo, accepting as true all well-pleaded facts 

alleged in the complaint." Osborne-Trussell, 488 Mass. at 253, 

quoting Ryan, 483 Mass. at 614. "We draw all reasonable 

inferences in the plaintiff's favor, and determine whether the 

allegations plausibly suggest that the plaintiff is entitled to 

relief on that legal claim" (quotations omitted). OsborneTrussell, supra, quoting Buffalo-Water 1, LLC v. Fidelity Real 

Estate Co., 481 Mass. 13, 17 (2018). See Iannacchino v. Ford 

Motor Co., 451 Mass. 623, 636 (2008). "To survive a motion to 

dismiss, the 'factual allegations must be enough to raise a 

right to relief above the speculative level based on the 

assumption that all the allegations in the complaint are true 

10 Contrary to the plaintiffs' contention, the judge did not 

convert the motion to dismiss into a motion for summary judgment

by considering DHCD's guidelines referenced in the complaint. 

See Ryan, 483 Mass. at 614 n.5 (where "the complaint makes clear 

reference" to document and "neither party disputes [its]

existence or terms," it may be considered in connection with 

motion to dismiss).
7

(even if doubtful in fact)'" (alterations omitted). OsborneTrussell, supra, quoting Sudbury v. Massachusetts Bay Transp. 

Auth., 485 Mass. 774, 779 (2020). "The facts alleged must 

plausibly suggest (not merely be consistent with) an entitlement 

to relief" (quotation, citation, and alteration omitted). 

Osborne-Trussell, supra.

The complaint seeks a declaratory judgment regarding the 

scope of DHCD's authority under G. L. c. 121B, § 7A -- a 

question of statutory interpretation, which we review de novo. 

See Armstrong v. Secretary of Energy & Envtl. Affairs, 490 Mass. 

243, 247 (2022). In deciding whether an agency is acting within 

its statutory authority, we use "conventional tools of statutory 

interpretation" to determine "whether the Legislature has spoken 

with certainty on the topic in question"; if the statute is 

unambiguous, "we give effect to the Legislature's intent." Id., 

quoting Goldberg v. Board of Health of Granby, 444 Mass. 627, 

632-633 (2005).

"[T]he general and familiar rule is that a statute must be 

interpreted according to the intent of the Legislature 

ascertained from all its words construed by the ordinary 

and approved usage of the language, considered in 

connection with the cause of its enactment, the mischief or 

imperfection to be remedied and the main object to be 

accomplished, to the end that the purpose of its framers 

may be effectuated."

Reagan v. Commissioner of Revenue, 491 Mass. 446, 451 (2023), 

quoting Oracle USA, Inc. v. Commissioner of Revenue, 487 Mass. 
8

518, 522 (2021). Accordingly, we begin our analysis with the 

words of the statute. "[O]rdinarily, where the language of a 

statute is plain and unambiguous, it is conclusive as to 

legislative intent" (citation omitted). Osborne-Trussell, 488 

Mass. at 254.

Adopted in the wake of a public scandal involving the

executive director of a local housing authority,11 G. L. c. 121B, 

§ 7A, provides that:

"[DHCD] shall promulgate guidelines for contracts to be 

executed by the housing authority and an executive 

director. [DHCD] may review all contracts between the 

housing authorities and executive directors and all terms 

for payments or monetary remuneration relevant to state 

payments; provided, however, that [DHCD] shall review all 

contracts and all terms for payments or monetary 

remuneration worth more than $100,000 per annum. [DHCD] 

may strike contract provisions that do not conform to the 

guidelines." (Emphases added.)

The complaint alleges that DHCD has exceeded its authority to 

issue "guidelines" by requiring contracts between LHAs and 

executive directors to comply with the guidelines. 

Specifically, the plaintiffs maintain that the Legislature's use 

of the term "guidelines" evinces an intent that DHCD issue broad 

parameters that lack the force of a mandate. The term 

"guideline" does not support the plaintiffs' argument. A 

"guideline" is "an indication or outline of policy or conduct." 

11 See Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579, 582 

(2019) (involving unreported compensation of executive director 

of Chelsea Housing Authority).
9

Merriam Webster Collegiate Dictionary 555 (11th ed. 2020). This 

definition does not preclude such rules from being mandatory. 

Any ambiguity in this regard is clarified by the Legislature's 

granting DHCD the authority to "strike contract provisions that 

do not conform to the guidelines." See Malloy v. Department of 

Correction, 487 Mass. 482, 496 (2021), quoting Pentucket Manor 

Chronic Hosp., Inc. v. Rate Setting Comm'n, 394 Mass. 233, 240

(1985) ("we look not only to the specific words at issue but 

also to other sections [of the statute], and 'construe them 

together . . . so as to constitute an harmonious whole 

consistent with legislative purpose'").

We disagree with the plaintiffs' contention that this 

construction is at odds with the authority of LHAs, pursuant to 

G. L. c. 121B, § 7, to "determine [executive directors'] 

qualifications, duties and compensation." "We assume that, when 

it enacts legislation, the Legislature is . . . aware of 

existing statutes." Suliveres v. Commonwealth, 449 Mass. 112, 

116 (2007). Pursuant to the statutory scheme governing the 

relationship between DHCD and LHAs, DHCD operates as "the 

administrative superior" of LHAs. West Broadway Task Force, 

Inc., 363 Mass. at 748 & n.4, citing G. L. c. 121B, §§ 1, 11, 

29, 30-32, 34, 35, 37. DHCD has the "power to oversee most 

phases of the operations of the local housing authorities, and 

to that end it is given various powers of approval and veto of 
10

the activities of those authorities together with rule making 

power and power to demand reports and other information."12 West 

Broadway Task Force, Inc., supra at 748.

Subject to DHCD's supervision, LHAs retain "operating 

responsibility and corresponding powers regarding the finances, 

construction, maintenance, and day-to-day management of housing

projects in [their municipalities]." Id. In view of this 

framework, and against the backdrop of a public scandal, see 

note 11, supra, the Legislature enacted G. L. c. 121B, § 7A, to 

give DHCD further authority and oversight regarding the terms of 

executive director contracts with LHAs.13 Within those 

constraints and consistent with the oversight allowed to DHCD by 

G. L. c. 121B, § 7A, LHAs continue to have authority to hire 

12 See, e.g., G. L. c. 121B, § 3 (DHCD shall certify 

dissolution of housing authority), § 5 (DHCD shall appoint one 

member of each housing authority), § 26 (j) (renovation of 

existing housing project "shall be undertaken in accordance with 

rules and regulations promulgated by [DHCD]"), § 26 (k) (DHCD 

must approve demolition of existing project), § 26B (DHCD must 

establish performance-based monitoring program for all LHAs), 

§ 28A ("Each housing authority shall submit to [DHCD] an annual 

plan"), § 29 ("[DHCD] shall investigate the budgets, finances 

and other affairs of housing authorities and the housing 

authority's dealings, transactions and relationships"), § 31 ("A 

housing authority shall not undertake a low-rent housing project 

until it has submitted to [DHCD] the plans and description of 

the project . . .").

13 Section 7A was passed alongside G. L. c. 121B, § 26B, 

which requires LHAs to participate in a performance-based 

monitoring program established by DHCD and allows DHCD to 

designate a housing authority as "chronically poor performing." 

See St. 2014, c. 235, §§ 7, 8.
11

executive directors and "determine their qualifications, duties 

and compensation."14 G. L. c. 121B, § 7.

Judgment affirmed.

14 The plaintiffs also contend that DHCD's use of 

"guidelines" to mandate material terms of an executive 

director's contract effectively renders them "regulations" 

subject to the rulemaking provisions of the Administrative 

Procedure Act (APA), G. L. c. 30A, § 5, which require, inter 

alia, that proposed regulations be published and considered at a 

public hearing. We disagree. The term "regulation" as used in 

the APA excludes "regulations concerning only the internal 

management or discipline of the adopting agency or any other 

agency . . . not substantially affecting the rights of or the 

procedures available to the public or that portion of the public 

affected by the agency's activities." G. L. c. 30A, § 1 (5). 

The guidelines promulgated pursuant to G. L. c. 121B, § 7A,

concern the internal management of LHAs under the oversight of 

their supervisor, DHCD; they "do not purport directly to 

regulate public conduct." Commonwealth v. Trumble, 396 Mass. 

81, 89 (1985). Cf. Harborview Residents' Comm., Inc. v. Quincy 

Hous. Auth., 368 Mass. 425, 426-427 (1975) (concerning 

regulations governing public housing tenant leases and grievance 

procedures); Commissioner of the Dep't of Community Affairs v. 

Medford Hous. Auth., 363 Mass. 826, 828 (1973) (concerning 

regulations governing LHA's interaction with public housing 

tenants).