In an important decision, the Supreme Judicial Court has clarified the standards that apply to a claim made by a public employee under the Massachusetts Whistleblower Act (“MWA”), G.L. c. 149, § 185, that they have been unlawfully retaliated against for objecting to activities that they reasonably believe are unlawful.

In Galvin v. Roxbury Community College, No. SJC 13754 (January 27, 2026), the court addressed a claim by a state college employee who was the school’s compliance officer regarding the college’s obligation to report sexual offenses to the United States Department of Education under the federal Clery Act. While the facts in this case are specific to that activity and the procedural aspects are complicated, the principles that have been addressed and clarified by the court apply to all public employers covered by the MWA.

The court focused on two of the three essential elements of a MWA claim – (1) that the employee engaged in “protected activity” by objecting to or refusing to participate in an activity that he reasonably believes is a violation of the law; and (2) that his protected activity was the cause of an adverse employment action by the employer.[1] The court’s analysis was informed by two relevant facts. First, it was undisputed that the activity objected to by the employee – failure to make Clery Act reports – was unlawful. Second, the employer raised the issue that the employee himself had failed to make required reports in addition to claiming that the employer was culpable. The court addressed the case with these facts in mind.

First, the court held that because the activity objected to was undisputedly unlawful, the employee satisfied as a matter of law the requirement that he have an objectively reasonable basis for believing that it was unlawful. The court pointed out that in a case where the unlawfulness is disputed and the employee’s belief may be erroneous, the “factual inquiry” on this element of the claim “would be more complex.”

Regarding the employee’s own Clery Act failures, the court held that the MWA “does not exclude objections made by employees involved in the wrongdoing” and therefore did not bar the employee’s claim based on the first element “given that the activity he objected to was undisputedly unlawful.”

Since the employer had challenged the employee’s “good faith” in making the objection, the court addressed that issue, as well. It held that because the objected-to activity was undisputedly unlawful, there was no need to inquire further into his “good faith”. It added that “good faith” would be a relevant subject where the objections were “erroneous”, pointing out that erroneous objections may nonetheless still be protected.

Turning to the employee’s own Clery Act violations, the court held that this issue is relevant to the second required MWA element, i.e., that his protected activity was the cause of his termination. The court stated that “[a]lthough an employer cannot terminate an employee because the employee objected to the wrongdoing, an employer may of course terminate an employee for being responsible for the wrongdoing.” It noted that “[i]n the case of employees who both object to and are involved in the wrongdoing, the cause of the termination requires a difficult, fact-specific inquiry, …”.

This decision is an important explication of the elements of a MWA retaliation claim, especially claims in which the employee’s belief in illegality may be wrong or in which the employee may have been involved in the wrongdoing. Frequently, employees who are dismissed from employment claim retaliation for objecting to illegal conduct. It is essential that employers navigate these issues carefully and seek the advice of counsel.

We are pleased to advise public employers in all aspects of employment/labor relations, including claims of protected whistleblowing activity.

[1] The third element, proof of resulting damages, was not at issue in the decision.

Robert D. Hillman has been named Massachusetts Super Lawyers for 2025 and Jennifer F. King and Matthew P. Milward have been named Massachusetts Rising Stars. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations. Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.

Earlier in August VDH posted an advisory regarding the July 22, 2025 “Dear Colleague” Letter issued by the U.S. Department of Education (“DOE”). That advisory generally outlines the permissible uses of federal grant funds when state and local education agencies utilize artificial intelligence (“AI”). One permissible use is “training of educators, providers, and families to use AI tools effectively and responsibly.” The Massachusetts Department of Elementary and Secondary Education (“DESE”) through its Office of EdTech now has issued guidelines in its publication Massachusetts Guidance for Artificial Intelligence In K-12 Education related to this use. The publication can be accessed and downloaded at https://www.doe.mass.edu/edtech/ai/ai-guidance.pdf.

Under the topic “Academic Integrity”, the Guidance urges school districts to help students “reflect on their process, make intentional choices, and take ownership of their learning—even when AI is part of it”; “to create cultures where honesty [about use of AI] is normalized and met with trust—not suspicion” and that “reward transparency”; and to minimize the use of AI detection tools, which are “often inaccurate, reinforce punitive mindsets, and undermine a culture of learning.”

Among other suggested steps, the Guidance encourages districts to “[e]stablish a district-wide expectation around when to disclose the use of AI”; promote use of AI “tools rather than as sources of knowledge or facts that are referenced”; “[c]ommunicate expectations in student handbooks, academic integrity policies, syllabi, and classroom norms”; and “[h]elp educators model disclosure by explicitly identifying how they use AI in their own work.” The Guidance also urges measures that foster appropriate learning about how to use AI, including “[e]mbed AI integrity, authorship, and citation topics in ELA, social studies, science, digital citizenship, and other curricula” and “[p]rovide teachers with lessons and materials on how to contrast student vs. AI-generated work.” Finally, the Guidance suggests steps that can foster a culture of “safe disclosure”, including “publicly adopt a district stance that supports honest disclosure and discussion.”

Under the topic “AI Literacy: Teaching With AI”, the Guidance contains a similar list of steps by which a district’s educators can effectively and responsibly teach students using AI.

DESE’s website provides access to a number of related resources as well as links to available trainings during the 2025-2026 school year at https://www.doe.mass.edu/edtech/ai/default.html.

As school districts navigate the development of policies governing the appropriate use of AI in education, questions will undoubtedly arise. We are pleased to provide advice to districts in this and in related areas.

This update is provided for informational purposes only and should not be considered legal advice.

On July 14, 2025 the United States District Court of Massachusetts issued a decision that clarifies past rulings holding that public employees in particular circumstances have a “property right” in their employment under the Fourteenth Amendment’s procedural due process guarantee. The plaintiff sued the City of Easthampton, the Easthampton School Committee, several individual Committee members, and the City’s Mayor. The complaint alleged several claims based on the Committee’s refusal to hire the plaintiff as Superintendent of Schools, including one based on the Fourteenth Amendment’s Due Process Clause.

In February 2023, the plaintiff had been interviewed by the School Committee for the job and then voted to offer the job to him. The plaintiff was informed of the Committee’s decision; was told that the position had a yearly salary of $151,000; and was informed that the contract would be for a period of three years. The plaintiff verbally indicated that he would accept the job, and the Committee responded that it would send him a written employment contract with minor details to be further negotiated.

A proposed contract was emailed to the plaintiff the following day by a School Committee member’s assistant and he responded to the email by addressing the recipients as “Ladies.” His email requested changes related to compensation, vacation, and sick time.

During its discussion of his response, members asserted that the plaintiff’s use of “Ladies” in his email was “unprofessional and dismissive.” A Committee member added that she was “insulted” and “terrified of [Plaintiff’s] behavior” and suggested that the Committee should rescind the employment offer as opposed to having to go through a termination procedure at a later date. The Committee voted five to one (with one abstention) to rescind the decision to hire the plaintiff. He was told that his use of the term “Ladies” was unprofessional and dismissive, and constituted a microaggression. Although he apologized, he was informed that a vote had already been taken and that he would not be hired.

In the lawsuit the defendants filed a motion to dismiss and the court addressed the Due Process claim. Applying the lenient standard for a plaintiff at the pleadings stage, the court assumed that the alleged facts were true. It also took into account the Committee’s meeting minutes because they are a matter of public record, were fairly incorporated into the complaint, and were produced in their entirety by the defendants as attachments to their motion.

The court noted that the plaintiff’s Due Process claim requires that he establish that (1) he was deprived of a protected property interest under State law; and (2) the deprivation occurred without adequate procedural due process. While a simple breach of contract does not amount to an unconstitutional deprivation, in the context of public employment an employee may possess a property interest in continued employment that is created by contract. The court ruled, however, that the contract did not yet exist. The plaintiff had argued that although he had not signed the employment contract that was sent to him, his ensuing communications with the Committee constituted a counteroffer that created a valid contract. The court noted that under Massachusetts law a counteroffer can constitute an executed agreement if all material or essential terms of the employment contract are agreed to by both parties but that the parties must have progressed “beyond the stage of imperfect negotiation.” Because they had not yet agreed on the material terms the court decided that a valid contract was never created. It emphasized that the plaintiff’s requested salary increases actually showed that the agreement’s most essential term – compensation – had not yet been established and that his email was insufficient to create an enforceable contract.

The court further pointed to established Massachusetts policy that a party seeking to enforce a contract with a governmental entity must comply with statutory contracting requirements. It observed that G.L. c. 71 §§ 41 and 59 require that the School Committee fix the superintendent’s salary and formally offer an approved contract.

The Court therefore dismissed the Due Process claim. Because the other claims were brought under Massachusetts state law and were subject to the federal court’s discretionary supplemental jurisdiction, it dismissed those without prejudice to their being re-filed in State court should the plaintiff choose.

While this decision is highly fact-specific, it illustrates the care with which public employers should carry on contract negotiations with non-union employees.

We are pleased to represent public employers in all aspects of entering into and enforcing employment contracts.

This update is provided for informational purposes only and should not be considered legal advice.