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1. The contempt finding. HN4In order to hold a party in [*443] contempt, the judge must find "a clear and undoubted disobedience of a clear and unequivocal command." Warren Gardens Hous. Coop. v. Clark, 420 Mass. 699, 700, 651 N.E.2d 1220 (1995), quoting United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36, 278 N.E.2d 716 (1972). See Nickerson v. Dowd, 342 Mass. 462, 464, 174 N.E.2d 346 (1961). Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt. United States Time Corp. v. G.E.M. of Boston, Inc., 345 Mass. 279, 282-283, 186 N.E.2d 920 (1963). HN5The burden of proof in a contempt action is on the complainant to prove its case by a preponderance of the evidence. Manchester v. Department of Envtl. Quality Eng'g, 381 Mass. 208, 212, 409 N.E.2d 176 (1980). HN6Questions of law, including the judge's interpretation of the settlement agreement, are afforded plenary review, Warren Gardens Hous. Coop. v. Clark, supra at 701; the judge's ultimate conclusion on the contempt finding is reviewed under the abuse of discretion standard. Massachusetts Comm'n Against Discrimination v. Wattendorf, 353 Mass. 315, 317, 231 N.E.2d 383 (1967).
The department argues that, even if the judge's [***24] findings of fact were grounded in the evidence, they would not support a judgment [**138] of contempt because they do not show any "clear and undoubted disobedience of a clear and unequivocal command." Rather, the department argues that the judge misinterpreted the settlement agreement, and that in any case, the terms of the settlement agreement are too vague and ambiguous to support a finding of contempt. We, therefore, look to the settlement agreement to determine whether the judge properly interpreted it and whether it contains a clear and unequivocal command to the department.
a. The settlement agreement. Part A of the settlement agreement provides: "Aversive procedures are permitted for use at [JRC] only when authorized as part of a court-ordered 'substituted judgment' treatment plan for an individual client" (emphasis added). The judge concluded, and we agree, that this provision clearly provides that the courts were to make the ultimate decision regarding individual treatment programs. See Matter of McKnight, 406 Mass. 787, 790, 550 N.E.2d 856 (1990) (stating JRC and department had "settlement agreement concerning . . . authorization, by way of substituted judgment, [*444] of the use of [***25] aversive procedures on clients at [JRC]"). Thus, a petitioner seeking authorization to use aversive treatments must present evidence that an individual would, if competent, consent to the aversive treatment. Commonwealth v. Delverde, 398 Mass. 288, 295, 496 N.E.2d 1357 (1986). n15 If the judge so finds, an order is entered authorizing the use of such treatments. Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 757, 370 N.E.2d 417 (1977) ("should the probate judge then be satisfied that the incompetent individual would, as determined by the [substituted judgment proceeding], have chosen to forgo potentially life-prolonging treatment, the judge shall issue the appropriate order").
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n15 Evidence considered at a substituted judgment hearing includes the ward's expressed preferences regarding treatments, the ward's religious convictions, the impact on the ward's family, the probability of adverse side effects, and the prognosis with and without treatment. Guardianship of Roe, 411 Mass. 666, 673, 583 N.E.2d 1282 (1992), and cases cited. In addition to the information ordinarily presented at a substituted judgment proceeding, the settlement agreement mandated that JRC present eleven additional pieces of information as well, including evidence of the client's present and past psychological and medical circumstances, target behaviors to be treated by means of aversive procedures, the clinical reasons why nonaversives or less intrusive aversive procedures are inappropriate, and the professional disciplines of the staff members who will implement such aversive or extraordinary procedures.
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This requirement is consistent with the department's regulations, which also provide that a judge, through substituted judgment proceedings, must authorize aversive treatments if an individual cannot give informed consent. n16 Furthermore, it has long been established that the courts are the appropriate bodies to make such decisions for individuals who cannot make those decisions for themselves. See Matter of Spring, 380 Mass. 629, 635, 405 N.E.2d 115 (1980) (stating that "we disapprove[] the delegation of the ultimate decision-making responsibility to any committee, panel or group, ad hoc or permanent"); Superintendent of Belchertown State Sch. v. Saikewicz, supra at 759 ("Such questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of [*445] government was created. Achieving this ideal is our responsibility and that of the lower court, and is not to be entrusted to any other group purporting to represent the 'morality and conscience of our society,' no matter how highly motivated or impressively constituted").
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n16 The regulations state that HN7"a Behavior Modification plan employing Level II or Level III Interventions may not be implemented unless it has been consented to in accordance with the following requirements." 115 Code Mass. Regs. § 5.14 (4) (e). The "requirements" provide that, if an individual is not capable of giving informed consent, a judge, through a substituted judgment proceeding, must authorize aversive treatments. Id.
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That the settlement agreement reserved to the judge the ultimate decision on an individual's treatment does not mean, however, that the department gave up its regulatory authority over JRC's programs and facilities. n17 [**139] Indeed, there is no provision in the agreement that provides the department gave up any regulatory authority.
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n17 The judge made no explicit finding regarding whether the settlement agreement contemplated that JRC would no longer be regulated by the department.
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In fact other provisions of the settlement agreement provide the contrary. The plain language of part C of the agreement provided that the Department of Mental Health (the department's predecessor) was to license JRC's facilities. n18 The settlement agreement also requires that JRC continue to follow all applicable regulations concerning periodic review of individualized educational plans and individual service plans. We note also that, to read the agreement as a delegation of all regulatory authority, would implicate serious constitutional [***28] issues. n19
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n18 The court monitor testified that, while the licensing process and the certification process evolved into two separate concepts after the settlement agreement was reached, with licensing pertaining to the operation of facilities and certification pertaining to a facility's use of Level III aversives, he discussed certification with the department because "the settlement agreement required that [JRC] become licensed and because certification was part of the overall licensing process."
n19 We do not consider whether the portion of the agreement providing that it was the court monitor, not the department, that was to oversee compliance with all other applicable State regulations except those related to Level III aversives and undertake general monitoring of JRC's treatment and educational program constituted an impermissible delegation of regulatory authority. The findings of the judge with respect to this portion of the settlement agreement are not necessary for our decision here; we note, moreover, that neither side disputes that JRC was required to be certified according to the department's regulations, and it is that certification process and its relationship to the settlement agreement that is before us.
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The settlement agreement, like the regulations, recognizes the judge's authority to protect the legal rights of the patients by making the ultimate treatment decisions for individuals [*446] while reserving to the department regulatory authority over JRC's program and facilities. This distinction between individual treatment plans and treatment programs, however, need not conflict. Any significant changes relating to an individual's treatment, such as the decertification of the program, can be brought to the attention of the judge, who can then modify the substituted judgment order. See Superintendent of Belchertown State Sch. v. Saikewicz, supra at 730-731 n.3 ("we emphasize that upon receiving evidence of a significant change either in the medical condition of Saikewicz or in the medical treatment available to him for successful treatment of his condition, the probate judge may issue a further order"). See Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 442 n.41, 497 N.E.2d 626 (1986) ("the new judgment should, of course, include a provision for modification . . . should any significant change or developments ensue"). Indeed, to ensure that treatment plans authorized by the judge [***30] are properly implemented, we have stated that a "judge may delegate to a guardian the power to monitor the treatment process to ensure that the substituted-judgment treatment plan is followed." Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 504, 458 N.E.2d 308 (1983). The settlement agreement itself provided that the court monitor would report to the judge regarding JRC's adherence to the treatment plan; thus, the department's arguments that such a reading of the settlement agreement would allow JRC to implement aversive treatments without regulation are without merit.
We recognize, of course, that HN8"[a] court . . . may not properly exercise the functions of the executive branch of State government." Care & Protection of Isaac, 419 Mass. 602, 605, 646 N.E.2d 1034 (1995), quoting Matter of McKnight, 406 Mass. 787, 792, 550 N.E.2d 856 (1990). See Guardianship of Anthony, 402 Mass. 723, 727, 524 N.E.2d 1361 (1988). Indeed, it is fundamental that a judge's order should and could not ignore the department's authority regarding certification requirements or compliance with applicable regulations. To do so would violate the principles of separation of powers by usurping an executive function. Charrier v. [***31] Charrier, 416 Mass. 105, 110, 616 N.E.2d 1085 (1993). It is not usurping an executive function, however, to require that the judge's order, authorizing the use of certain treatments entered at the time a program is [**140] certified to use aversive treatments, cannot be unilaterally overridden by an executive agency. Indeed, HN9allowing [*447] the department to ignore a judge's order would intrude on the function of the courts, for there is no doubt that the ability to enter orders is necessary to the very existence of the court and essential to the maintenance of the court's authority. Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 631, 477 N.E.2d 361 (1985) ("court must have power to carry out its obligation[s]"). It is just this sort of intrusion that art. 30 prohibits. Chief Admin. Justice of the Trial Court v. Labor Relations Comm'n, 404 Mass. 53, 56, 533 N.E.2d 1313 (1989). Thus, requiring the department to seek to modify the original treatment orders before instituting any change respects the power and authority of both the executive and judicial branches of government. n20
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n20 Contrary to the department's argument, its own regulations do not contemplate its having such unilateral power over individual treatment plans. While the department argues that language in the policy section of the applicable regulations stating that "the use of such procedures for a particular individual will be allowed for a particular client only after a rigorous review and approval by clinicians, human rights committees, and the department" and that "such procedures are only to be used in programs which are specially qualified and certified to use such procedures with appropriate care . . . [and] the application of a procedure for clients even after it has been approved must be strictly monitored by the program as well as by the department itself" demonstrate its power over individual treatment plans, we conclude that the language is consistent with our reading of the regulations -- if that monitoring reveals any problems, that information should be brought to the judge who has authorized the use of aversive treatments. 115 Code Mass. Regs. § 5.14 (1) ©. Moreover, although the department claims to have certified the use of aversive therapies on individual patients at various facilities, the assistant commissioner for quality assurance conceded that there is no authority in the regulations for approval of Level III procedures "in the absence of a certification as a program."
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Thus HN10any unilateral interference by the department in a court-ordered treatment would support a contempt finding. It is not decisive that the agreement did not mention the department by name, for by becoming a party to an agreement that clearly provided that only the judge was to make these decisions, the department was bound not to interfere with individual treatment plans authorized by the judge. See Labor Relations Comm'n v. Boston Teachers Union, Local 66, 374 Mass. 79, 89, 371 N.E.2d 761 (1977) (rejecting argument that legal liability cannot attach for failure to comply with implicit requirements). Cf. Bird v. Capital Site Mgt. Co., 423 Mass. 172, 178, 667 N.E.2d 826 (1996) ("A person who was not a party to an action in which [*448] an order was entered may in certain circumstances be found to be in contempt of that order").
b. Bad faith. Having concluded that the department's interference with individual treatment plans can support a finding of contempt, we look next at the findings of the department's bad faith regulatory practices. The agreement states that "each party shall discharge its obligations under the terms of this agreement, in good faith." The department argues that, because [***33] no other provisions in the agreement speak to how the department is obligated to regulate JRC, there can be no violation of the good faith clause. Indeed, according to the department, any findings relating to the certification process are "immaterial" and cannot support a finding of contempt because, absent such a provision, there cannot be a "clear and undoubted disobedience of a clear and unequivocal command." United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36, 278 N.E.2d 716 (1972). We disagree, leaving aside the implication of the argument that there is no obligation on the part of the department apart from the agreement to regulate in good faith.
It should be kept in mind also that, in the litigation that the agreement sought to settle, the court had found that the department's predecessor had engaged in bad faith regulation of JRC. It is in this context that part L of the settlement agreement must be read. United States v. Board of Educ. of Chicago, 799 F.2d 281, 292 (7th Cir. 1986) (good faith provision cannot be read in vacuum). Where, as here, the agreement as a whole contemplates that the department will continue to regulate JRC, see note 17, supra, [***34] and contains a good faith provision, the provision [**141] applies to the regulation of JRC by the department and is not so ambiguous as to preclude a finding of contempt. Indeed, while we have refused to hold a defendant in contempt if, in order to do so, we would have to expand the scope of an underlying order beyond its plain meaning, Peggy Lawton Kitchens, Inc. v. Hogan, 403 Mass. 732, 734-735, 532 N.E.2d 54 (1989), we have upheld findings of contempt where an order, although subject to some legal interpretation, has nonetheless provided sufficient notice to the party bound by the order that its actions could form the basis for contempt. Nickerson v. Dowd, 342 Mass. 462, 464-465, 174 N.E.2d 346 (1961) ("lawful" operation of business, while confusing term, nonetheless sufficient basis for contempt proceedings). HN11A [*449] "good faith" provision, while subject to some legal interpretation, is certainly not so ambiguous as to fail to put the department on notice that improper regulation of JRC could subject it to contempt proceedings. Indeed, good faith provisions are implied in all contracts, Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471, 583 N.E.2d 806 (1991), and ensure that the substance and purpose of [***35] the agreement is given effect. Warner Ins. Co. v. Commissioner of Ins., 406 Mass. 354, 362 n.9, 548 N.E.2d 188 (1990), quoting Kerrigan v. Boston, 361 Mass. 24, 33, 278 N.E.2d 387 (1972).
Not only is a contempt finding appropriate because the department did not regulate JRC in good faith, HN12a contempt finding is appropriate where "steps are taken to subvert the decree." United States v. Board of Educ. of Chicago, supra at 296. Thus, HN13while judges will not read into an order additional terms, Peggy Lawton Kitchens, Inc. v. Hogan, 403 Mass. at 734-735, judges will not allow a party to do indirectly what an order makes clear he cannot do directly. Stodder v. Rosen Talking Mach. Co., 247 Mass. 60, 68, 141 N.E. 569 (1923) ("courts will not permit defendants to evade responsibility for violating an injunction, by doing through subterfuge a thing which is not in terms a violation, yet produces the same effect by accomplishing substantially that which they were enjoined from doing"). See Labor Relations Comm'n v. Boston Teachers Union, Local 66, 374 Mass. at 89-90 (where defendants enjoined from taking affirmative action to encourage labor strike, provision of order enjoining them from condoning such [***36] action was sufficiently clear to put them on notice that failure to act in appropriate situations would render them liable). To allow such behavior would undermine the efficacy of court decrees and allow anyone to flout the judicial branch. In the instant case then, it would be absurd to conclude that, although the agreement was intended to settle claims that the department's predecessor was improperly denying the patients needed aversive therapy, the department could, through bad faith regulatory practices, ensure that no individual could receive aversive therapies at JRC.
While we agree that part A and part L of the settlement agreement provided "clear and unequivocal command[s]" that would support a finding of contempt, we doubt whether the "impermissibly obstructed" language of part C and the arbitration provisions of part B-2 can be similarly characterized. [*450] Because we conclude that contempt was justified apart from these provisions, we do not rely on these provisions of the settlement agreement in reaching our decision.
We reach our decision, as we must in a contempt action, based on the plain language of the settlement agreement. See Inspector of Bldgs. of Provincetown [***37] v. Eder, 11 Mass. App. Ct. 1011, 419 N.E.2d 1045 (1981). We note, however, that the circumstances and history surrounding the settlement agreement and the ensuing relationship between the department and JRC supports our reading of the settlement agreement. n21 The [**142] action that resulted in the settlement agreement was brought because the parents and guardians of JRC patients alleged that OFC was denying individual patients their constitutional rights to certain treatments and was not regulating JRC in good faith. The settlement agreement sought to remedy this situation while allowing the department to continue to fulfil its statutory duties to regulate mental health facilities.
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n21 For example, in March of 1992, the department's general counsel responded to a letter inquiring about JRC's use of behavior modification procedures with respect to two patients and stated that "the department is currently bound by a settlement agreement with respect to this program. All so-called aversive interventions used at [JRC] must be approved by the Bristol County Probate Court; the department's involvement in the actual treatment is limited." In addition, after initially granting certification to JRC on April 20, 1989, the department attached to the initial grant of certification a memorandum which addressed the potential conflict between substituted judgment orders of the Probate Court and the department regulations. The memorandum noted that the department's treatment plans should not be amended until after a substituted judgment hearing before the Probate Court, and stated that such interpretation of the regulations "is necessary to prevent conflicting decisions by departmental hearing officers and the Probate Court, [because] obviously an executive branch hearing officer cannot overrule a court decision." The memorandum also noted that such a practice was "consistent with departmental practice in [other] cases."
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In sum, we have considered the many arguments the department makes with respect to the settlement agreement, and conclude that the settlement agreement was not, in significant respects, too ambiguous to support a finding of contempt. Indeed, while we are sensitive to the fact that "ambiguity lurks in generality and may thus become an instrument of severity," Labor Relations Comm'n v. Boston Teachers Union, Local 66, supra 374 Mass. at 89, quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 297, 93 L. Ed. 599, 69 S. Ct. 497 (1949) (Frankfurter, [*451] J., dissenting), such danger is not presented by upholding the contempt findings in this case. Finally, we note that the settlement agreement has been in effect since 1986. If the department had felt that the agreement did not clearly define what it could or could not do, the proper remedy would be for the department to have brought an action asking for clarification of the order. 374 Mass. at 91, citing Coyne Indus. Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 275-276, 268 N.E.2d 848 (1971).
c. Whether the judge was warranted in finding contempt. Having concluded that the settlement agreement provided clear and unequivocal commands, the next question is whether [***39] there was "clear and undoubted disobedience" of those commands.
In general, HN14a judge's findings of facts in a contempt proceeding are reviewed using the "clearly erroneous" standard. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). The department argues, however, that, while the clearly erroneous standard is generally the applicable standard, the circumstances of this case call for the standard to be applied more strictly. We disagree. While it is true that HN15stricter scrutiny may be warranted in cases where the judge's findings fail to evidence a "badge of personal analysis," in the instant case, the findings of the judge "so revised [JRC's] proposed findings and conclusions 'that it is clear that the findings are the product of [her] independent judgment.'" Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 465, 583 N.E.2d 806 (1991), quoting Cormier v. Carty, 381 Mass. 234, 237, 238, 408 N.E.2d 860 (1980). Contrary to the department's claim, the judge did not adopt the proposed findings of JRC and make "virtually no changes of any substance in adopting these findings." Rather, JRC proposed many findings that the judge refused to adopt, and she heavily edited many of the findings suggested [***40] by JRC. The judge also rejected certain characterizations suggested by JRC. Moreover, she accepted proposed findings of fact from both JRC and the department, and while the judge incorporated few, if any, of the department's proposed findings, that is a proper exercise of her role as fact finder as long as her findings are supported by the evidence. Indeed, the conclusions of law section of the judge's decision "leaves no doubt that the judge adopted the findings proposed . . . because they accurately expressed [her] decision after [her] consideration of the evidence and [her] evaluation of the credibility of the witnesses." Edinburg v. Cavers, 22 Mass. App. Ct. 212, 219, 492 N.E.2d 1171 (1986).
[*452] HN16What the clearly erroneous standard means is that "[the judge's] findings 'come here well armed with the buckler and shield.'" First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621, 481 N.E.2d 1132 (1985), quoting Matter of [**143] Multiponics, Inc., 622 F.2d 709, 723 (5th Cir. 1980). We are "bound by [her] findings of fact which are supported by the evidence, which include inferences reasonably drawn therefrom." Ricky Smith Pontiac, Inc. v. Subaru of New England, Inc., 14 Mass. [***41] App. Ct. 396, 405, 440 N.E.2d 29 (1982). Thus, we shall not "review questions of fact found by the trial judge, where such findings are supported 'on any reasonable view of the evidence, including all rational inferences of which it was susceptible.'" First Pa. Mortgage Trust v. Dorchester Sav. Bank, supra at 624, quoting T.L. Edwards, Inc. v. Fields, 371 Mass. 895, 896, 358 N.E.2d 768 (1976). Moreover, while there is substantial documentary evidence before us, there is also significant oral testimony, including oral testimony about those documents, and "HN17when the evidence is of mixed character -- live and documentary -- it is settled that the clearly erroneous standard applies to both categories." Cornwall v. Forger, 27 Mass. App. Ct. 336, 338, 538 N.E.2d 45 (1989). Finally, our standard of review also does not change because of the subject matter of the findings and the severity of the relief predicated on them.
With the appropriate standard in mind, we now review the evidence to determine whether a finding of contempt was warranted. It is not necessary for us to review all 304 findings that led to the contempt order. Rather we think it appropriate to review some of the most egregious behavior of the [***42] commissioner and the department that warranted the contempt finding and the remedies imposed by the judge.
d. Part A of the settlement agreement. The judge found that the department violated part A of the agreement by, inter alia, ordering JRC by letter dated January 20, 1995, n22 to discontinue use of court-authorized procedures for six JRC patients. n23 The department argues that the judge mischaracterized the condition in the letter requiring JRC to discontinue [*453] Level III interventions for the six patients. Rather, the department argues that the letter gave JRC the choice of revising the treatment plans either to conform to the department's regulations (and to apply for recertification) or to exclude Level III aversives. The department also argues that the existing treatment plans were to remain in effect until new plans were approved in accordance with the department's regulations, including those regulations that required a substituted judgment proceeding.
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n22 The letter stated: "This certification excludes authorization for [JRC] to continue to use indefinitely Level III interventions for six individuals . . . ." [***43]
n23 One of the individuals had been the subject of a recent five-day treatment plan review by the Probate Court. The Probate Court judge had conducted a treatment plan review, commencing on October 31, 1994, and concluding December 21, 1994, specifically approving Level III aversive therapy for the individual who was one of the most difficult to treat patients at JRC. See Guardianship of Brandon, post 424 Mass. 482, 677 N.E.2d 114 (1997). See also note 19, supra.
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It is true that the letter of January 20, 1995, gave an option; the option, however, was not the department's to give. The settlement agreement (and HN18the department's own regulations, 115 Code Mass. Regs. § 5.14 [4], [5]) makes clear that the judge was to make the ultimate decision regarding the treatment plan of individuals. See supra at 18-20. As discussed previously, if the department had new information, i.e., that the program was no longer certified, the proper course would be to bring that new information to the judge. It was not to contradict the judge's orders which authorized certain treatments and order JRC, who had authorization [***44] to use aversive therapies for individual patients, to go back to the judge with new treatment plans or to modify treatment plans so as to exclude aversive therapies. Indeed, the letter mandated that if, after thirty days, JRC did not apply to be recertified in the use of Level III interventions for the six individuals, JRC must begin modifying the treatment plans to exclude Level III aversives. That the department may or may not have been acting in good faith is irrelevant -- HN19good faith is not a defense to a charge of contempt. United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 38, 278 N.E.2d 716 (1972) ("good faith," "absence of wilful disobedience," and "lack of intent to violate a decree do not [**144] constitute a valid defence for a corporation charged with civil contempt"). Thus, the judge's conclusion that the department violated part A of the settlement agreement by interfering with the treatment plans of six individuals is not clearly erroneous.
e. Part L of the settlement agreement. The judge found that part L of the settlement agreement was violated when the [*454] commissioner "departed from ordinary Department practice by . . . holding weekly meeting[s] with high-level staff [***45] to discuss JRC." At these meetings, "a plan was formulated to disrupt the operations of JRC by every conceivable means -- to allege that clients were being abused; to interfere with financial operations; to disrupt JRC's relationships with funding agencies, as well as parents; and other activities which have absolutely no bearing on the legitimate exercise of regulatory authority." Moreover, the judge concluded that the commissioner, who testified that the meetings were held strictly to deal with the recertification issue, tried to conceal the true purposes of these meetings.
Clearly, HN20a finding that the department developed and acted on a plan to interfere with JRC and put it out of business would warrant the conclusion that the department was regulating JRC in bad faith, for it "carries an implication of a dishonest purpose, conscious doing of wrong, or breach of duty through motive of self-interest or ill will." Hartford Acc. & Indem. Co. v. Millis Roofing & Sheet Metal, Inc., 11 Mass. App. Ct. 998, 999-1000, 418 N.E.2d 645 (1981), citing Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416-417, 8 N.E.2d 895 (1937). Indeed, if the judge's findings of fact are not clearly erroneous, then [***46] "bad faith can reasonably be inferred from the evidence." Chapman v. University of Mass. Medical Ctr., 417 Mass. 104, 110, 628 N.E.2d 8 (1994). The department argues, however, that the judge erred in concluding that the commissioner attempted to conceal the subject of these meetings from the judge and that the judge's findings on this subject form the basis for her conclusions of perjury, government malfeasance, and attorney misconduct.
Our review of the evidence leads us to conclude that the judge was warranted in finding that the commissioner did in fact testify that the meetings were held to deal strictly with certification issues. n24 Regardless, however, whether the commissioner attempted to conceal the subjects of these meetings, it is clear that the testimony at trial warranted a finding that [*455] the department had developed and acted on a plan to put JRC out of business and was regulating JRC in bad faith, and it is this conclusion that warrants a finding of contempt and the imposition of a receivership.
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n24 Q.: "Commissioner, starting in the summer or fall of 1993, you started having weekly meetings concerning [JRC]'s application for certification; is that correct?"
A.: "Yes."
Q.: "Those meetings dealt strictly with the issue of [JRC]'s application for certification?"
A.: "Yes."
Q.: "They were not assembled for any other purpose?"
A.: "That's correct."
While the judge concluded that the "materially false statements under oath . . . would support a prosecution for perjury" and referred "the matter to the District Attorney . . . for a determination as to whether a prosecution for perjury and/or criminal contempt should be instituted," we need not consider whether the evidence would support a perjury charge.
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Work plans and notes taken at these meetings included the notations "December 15 - [JRC] D-Day" and "what would [JRC] have to do to not be certified: two areas a capacity to obey laws and efficacy of treatment" (emphasis in original). There was also an agenda item on the issue of how Rhode Island was able to remove patients from JRC and "turn over its clients to [another facility]." In addition, the work plan agenda also reveal that the commissioner, contrary to department policy, was to brief a District of Columbia official on the status of an investigation of a patient at JRC before the investigation was complete, and that the commissioner's special assistant was to develop other contacts with out-of-State funding agencies. Indeed, the commissioner and his special assistant were assigned the task of researching whether Washington, D.C., had alternate placement plans for the JRC patient. The work plans also reveal that the department was researching [**145] former JRC staff and planned to distribute profiles on seven Massachusetts citizens who had transferred out of JRC. Based on this evidence, the judge's conclusion was not clearly erroneous that the work plans reflected a strategy [***48] to interfere with JRC's relationships with funding agencies.
There was also ample evidence to support the judge's finding that the department planned to interfere with JRC's financial operations. The work plans reveal that, at these meetings, the commissioner undertook the task of confirming JRC's fiscal status even though the commissioner testified that a review of JRC's fiscal status had nothing to do with [*456] certification. An attorney, who was retained by the department to assist with JRC's certification application and was made a special assistant attorney general, was instructed to run title searches on all JRC property in order to determine whether there were any undisclosed related party transactions, even though the commissioner testified that he had no basis to believe there were any such transactions and conceded that the issue is the responsibility of the division of purchased services and not the department. The commissioner also testified that whether JRC property was leased or owned, had nothing to do with the issue of certification yet the assistant commissioner for quality assurance was assigned the task of determining whether JRC's property was leased or owned. n25 Finally, [***49] the work plans reveal that the department attempted to interfere with the rate at which JRC was reimbursed by the division of purchased services by arguing that the department and JRC should negotiate a rate for reimbursement rather than having the rate set by the division of purchased services and by arranging an unlawful "pre-meeting" between the department, the division of purchased services, and the Department of Education before JRC met with the division of purchased services and the Department of Education officials for a pricing meeting.
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n25 While the department argues that all 304 findings of fact are clearly erroneous, nowhere in its brief does it challenge the findings that these topics were, in fact, discussed at the meetings, and that the commissioner testified they did not have anything to do with certification. Rather, the department tries to sidestep the issue, arguing only that the commissioner never claimed not to have discussed these issues and therefore cannot be found to have acted in bad faith. The department's argument ignores that it is not solely the commissioner's denial or admission of these actions that warranted a finding of contempt -- it was the actions themselves that demonstrated the department was regulating the JRC in bad faith.
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Based on the testimony and the "work plans" of the Tuesday morning meetings, there is no doubt that the judge's conclusions that the Tuesday morning meetings involved activities which had nothing to do with the certification (or regulatory) process and that the department developed a plan to put JRC out of business through interfering with JRC's relationships with funding agencies and JRC's fiscal operations are not clearly erroneous. Indeed, the work plans reveal that less than two months after the second review team had recommended that JRC be recertified, the department wanted [*457] a receivership petition prepared in case JRC went out of business. n26 Moreover, while [**146] the department argues "despite whatever the commissioner and his staff may have discussed, planned, or desired, they did not close down (JRC), put it into receivership, or put it out of business," there is ample evidence to support the judge's conclusion that the commissioner interfered with JRC's operations without justification.
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n26 The department argues that the information regarding the receivership petition revealed by the work plans is protected by the attorney-client privilege. We agree with the judge that the information is not protected by the privilege. HN21The attorney-client privilege protects communications made between a lawyer and a client for the purpose of obtaining legal advice. See Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115, 676 N.E.2d 436 (1997); Rent Control Bd. of Cambridge v. Praught, 35 Mass. App. Ct. 290, 296, 619 N.E.2d 346 (1993). We must, however, construe the privilege narrowly. Commonwealth v. O'Brien, 377 Mass. 772, 775, 388 N.E.2d 658 (1979). Thus, while the department analogizes to Upjohn Co. v. United States, 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981), where the Supreme Court recognized that for a corporate lawyer to function effectively, it is often necessary for the lawyer to obtain information from middle and lower-level employees in order to advise the corporation appropriately, id. at 394, that case is inapposite where, as here, there has been no showing that all of those present at the meeting provided the department's counsel with information she needed in order to advise the department, nor has there been a showing that all those present at the meeting were seeking legal advice. Rather, the evidence overwhelmingly supports the conclusion that the meeting was a general policy meeting. Thus, HN22while the documents would be protected from mandatory disclosure during the time the policy was being developed, G. L. c. 4, § 7, Twenty-sixth (d); Babets v. Secretary of Human Servs., 403 Mass. 230, 237 n.8, 526 N.E.2d 1261 (1988), after the policy decision has been made there is no privilege. Id. at 238-239.
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Further evidence of the department's plan to shut down JRC is found in its imposition of "a severe and essentially constant burden on the JRC staff by having to respond to an unrelenting stream of bad faith regulatory demands and other bad faith conduct." Examples of the regulatory barrage launched by the department include demanding that JRC psychologists rewrite fifty-two behavior modification treatment plans that had previously been approved by the judge, requiring the department to respond to fifty-six medical and forty-two psychiatric evaluations written by the psychiatrists and physicians retained by the department to examine all of the JRC patients "without an analysis or even regard to whether any of these were clinically indicated," requiring JRC to provide a "list of aversive techniques and an existing description of how such techniques are used at JRC" even [*458] though this information was already given to a review team," and instigating more than fifty abuse investigations.
The department argues that there was a good faith basis for requiring JRC to conduct independent psychiatric and medical reviews for all its patients. It was appropriate for the judge to conclude otherwise. [***52] The commissioner testified that no psychiatrist gave him any information which suggested a need for psychiatric evaluations or information that the client's behavioral problems could be treated psychiatrically. Moreover, the commissioner could not identify any physicians who had advised the department that there were unmet medical needs, and concurred that all JRC patients were in good health. Perhaps most telling, the commissioner testified that he had never read any of the reports written by the psychiatrists that the department had retained to examine JRC patients.
In addition to requiring JRC to respond to numerous requests for documents, the judge concluded that the regulatory barrage included numerous visits to JRC by department officials and others which distracted JRC staff from working with patients. Indeed, the judge found that, from late October through the end of December 1994, "JRC was besieged with visits . . . . From August of 1993 to December of 1994, there were over 400 visits . . . ."
One such visit was by the Rivendell review team during the week of March 20, through March 25, 1994. The judge concluded that the "selection of Rivendell was the antithesis of a fair, [***53] unbiased and independent review. [The department's] selection of Rivendell was purposeful and is an example of bad faith." n27 The judge was warranted in concluding that the selection of the Rivendell review team constituted bad faith regulation of JRC. Given that the team leader was the first individual signatory to the "Call to Action" which equated aversive therapies to political torture, the judge's conclusion that the Rivendell review team was incapable of doing an unbiased review was not clearly erroneous. Indeed, the attachments to the "Call to Action" made serious claims of mistreatment by JRC. The judge, having heard testimony that the assistant commissioner for quality assurance had received a copy of the "Call to Action" which equated the [*459] use of aversives with political torture, was not required to believe the assistant commissioner for quality assurance's testimony that she believed the Rivendell team leader was impartial. See Hawthorne's Inc. v. Warrenton Realty, Inc., 414 Mass. 200, 201, 606 N.E.2d 908 (1993) (judge in best position to evaluate credibility of witnesses); First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621, 481 N.E.2d 1132 (1985) (due regard given to [***54] opportunity of judge to assess credibility of witnesses). Moreover, the judge's disbelief [**147] of the assistant commissioner for quality assurance's testimony was not the only basis for her conclusion that the selection of Rivendell was made in bad faith. The judge also found that the Rivendell review team was selected without the department receiving the resumes of the professionals involved. In addition, the judge found that the assistant commissioner for quality assurance requested that Rivendell modify the original RFP that it had submitted and that the original RFP stated that "the assembly of a sufficiently qualified team at such short notice is close to impossible." Moreover, the original RFP revealed that the bid submitted by the Rivendell team was one and one-half times higher than the only other bid. Our review of the evidence demonstrates that none of these findings was clearly erroneous, and that the judge was warranted in concluding that the department was regulating JRC in bad faith. n28
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n27 The judge also noted that the Rivendell review team requested indemnification from the department for its review of JRC. [***55]
n28 Other examples of the department's putting its plan into action include the letters sent by the department to the funding agencies which contained misleading and false information. The department argues that the commissioner had a good faith basis for all of the statements and the conditions contained in the various letters. While we need not review all of the letters, we note, for example, that the letter of August 6, stated that the department had found "continued and repeated noncompliance with [the department] regulations." Our review of the evidence leads us to conclude that the judge's finding that the letter was sent in an attempt to interfere with JRC's relationships with funding agencies was not clearly erroneous. Indeed, this statement was in direct conflict with the report of the 1993 review team that had been submitted just a few weeks prior to the August 6, letter and the 1991 report, both of which the commissioner testified that he had not read at the time he sent the letter. Moreover, the commissioner was asked, "Would it be fair to state that you . . . did not review the reports of your certification team, you did not review the court orders of the Bristol County Probate Court and you did not review any of the evaluations of the psychologists who had been appointed by the [department]; is that a fair statement?" He responded, "Yes." Thus, it is clear that there is ample evidence to support the inference that the letter was sent in bad faith as part of the plan to put JRC out of business.
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The department argues that the judge impermissibly imposed the burden on the commissioner to prove that he [*460] acted in good faith and that, where the defendant is a State official, "who is attempting to carry out his statutory duties as he understands them, contempt sanctions are not an appropriate means of redressing any violation of his obligation to act in good faith," and raises serious separation of powers problems. The department argues that the judge should have assumed that the commissioner would henceforth act in accordance with the law as judicially construed. We disagree.
Our review of the record leads us to conclude that the judge did not impermissibly shift the burden to the department to prove that the commissioner acted in good faith. While the judge did at times ask the commissioner what his good faith reason was for taking certain actions, these questions generally came after affirmative evidence suggesting bad faith had been admitted, and reflected the judge's efforts to get the commissioner's response. n29 Moreover, the judge, in finding bad faith, did not merely rely on her disbelief of the testimony of the commissioner and other witnesses of the department. Contrast [***57] Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 223-224, 598 N.E.2d 666 (1992). The work plans and other documents, as well as the testimony, provided the judge with an ample basis for making the findings she did.
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n29 For example, on the first day of trial, the assistant general counsel testified that the 1993 review team's report and the 1991 review team's report were not submitted to the judge on September 22, 1993, when the department submitted other information. The judge, on learning that these favorable reports had not been presented to her stated: "My mind is always open to what you present me. But I'm faced with misrepresentations to the Court and I welcome an explanation as to why it should not be characterized in that way and I am looking forward to it and I hope that it's presented soon."
The department argues that, even if the judge's [***24] findings of fact were grounded in the evidence, they would not support a judgment [**138] of contempt because they do not show any "clear and undoubted disobedience of a clear and unequivocal command." Rather, the department argues that the judge misinterpreted the settlement agreement, and that in any case, the terms of the settlement agreement are too vague and ambiguous to support a finding of contempt. We, therefore, look to the settlement agreement to determine whether the judge properly interpreted it and whether it contains a clear and unequivocal command to the department.
a. The settlement agreement. Part A of the settlement agreement provides: "Aversive procedures are permitted for use at [JRC] only when authorized as part of a court-ordered 'substituted judgment' treatment plan for an individual client" (emphasis added). The judge concluded, and we agree, that this provision clearly provides that the courts were to make the ultimate decision regarding individual treatment programs. See Matter of McKnight, 406 Mass. 787, 790, 550 N.E.2d 856 (1990) (stating JRC and department had "settlement agreement concerning . . . authorization, by way of substituted judgment, [*444] of the use of [***25] aversive procedures on clients at [JRC]"). Thus, a petitioner seeking authorization to use aversive treatments must present evidence that an individual would, if competent, consent to the aversive treatment. Commonwealth v. Delverde, 398 Mass. 288, 295, 496 N.E.2d 1357 (1986). n15 If the judge so finds, an order is entered authorizing the use of such treatments. Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 757, 370 N.E.2d 417 (1977) ("should the probate judge then be satisfied that the incompetent individual would, as determined by the [substituted judgment proceeding], have chosen to forgo potentially life-prolonging treatment, the judge shall issue the appropriate order").
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n15 Evidence considered at a substituted judgment hearing includes the ward's expressed preferences regarding treatments, the ward's religious convictions, the impact on the ward's family, the probability of adverse side effects, and the prognosis with and without treatment. Guardianship of Roe, 411 Mass. 666, 673, 583 N.E.2d 1282 (1992), and cases cited. In addition to the information ordinarily presented at a substituted judgment proceeding, the settlement agreement mandated that JRC present eleven additional pieces of information as well, including evidence of the client's present and past psychological and medical circumstances, target behaviors to be treated by means of aversive procedures, the clinical reasons why nonaversives or less intrusive aversive procedures are inappropriate, and the professional disciplines of the staff members who will implement such aversive or extraordinary procedures.
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This requirement is consistent with the department's regulations, which also provide that a judge, through substituted judgment proceedings, must authorize aversive treatments if an individual cannot give informed consent. n16 Furthermore, it has long been established that the courts are the appropriate bodies to make such decisions for individuals who cannot make those decisions for themselves. See Matter of Spring, 380 Mass. 629, 635, 405 N.E.2d 115 (1980) (stating that "we disapprove[] the delegation of the ultimate decision-making responsibility to any committee, panel or group, ad hoc or permanent"); Superintendent of Belchertown State Sch. v. Saikewicz, supra at 759 ("Such questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of [*445] government was created. Achieving this ideal is our responsibility and that of the lower court, and is not to be entrusted to any other group purporting to represent the 'morality and conscience of our society,' no matter how highly motivated or impressively constituted").
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n16 The regulations state that HN7"a Behavior Modification plan employing Level II or Level III Interventions may not be implemented unless it has been consented to in accordance with the following requirements." 115 Code Mass. Regs. § 5.14 (4) (e). The "requirements" provide that, if an individual is not capable of giving informed consent, a judge, through a substituted judgment proceeding, must authorize aversive treatments. Id.
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That the settlement agreement reserved to the judge the ultimate decision on an individual's treatment does not mean, however, that the department gave up its regulatory authority over JRC's programs and facilities. n17 [**139] Indeed, there is no provision in the agreement that provides the department gave up any regulatory authority.
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n17 The judge made no explicit finding regarding whether the settlement agreement contemplated that JRC would no longer be regulated by the department.
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In fact other provisions of the settlement agreement provide the contrary. The plain language of part C of the agreement provided that the Department of Mental Health (the department's predecessor) was to license JRC's facilities. n18 The settlement agreement also requires that JRC continue to follow all applicable regulations concerning periodic review of individualized educational plans and individual service plans. We note also that, to read the agreement as a delegation of all regulatory authority, would implicate serious constitutional [***28] issues. n19
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n18 The court monitor testified that, while the licensing process and the certification process evolved into two separate concepts after the settlement agreement was reached, with licensing pertaining to the operation of facilities and certification pertaining to a facility's use of Level III aversives, he discussed certification with the department because "the settlement agreement required that [JRC] become licensed and because certification was part of the overall licensing process."
n19 We do not consider whether the portion of the agreement providing that it was the court monitor, not the department, that was to oversee compliance with all other applicable State regulations except those related to Level III aversives and undertake general monitoring of JRC's treatment and educational program constituted an impermissible delegation of regulatory authority. The findings of the judge with respect to this portion of the settlement agreement are not necessary for our decision here; we note, moreover, that neither side disputes that JRC was required to be certified according to the department's regulations, and it is that certification process and its relationship to the settlement agreement that is before us.
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The settlement agreement, like the regulations, recognizes the judge's authority to protect the legal rights of the patients by making the ultimate treatment decisions for individuals [*446] while reserving to the department regulatory authority over JRC's program and facilities. This distinction between individual treatment plans and treatment programs, however, need not conflict. Any significant changes relating to an individual's treatment, such as the decertification of the program, can be brought to the attention of the judge, who can then modify the substituted judgment order. See Superintendent of Belchertown State Sch. v. Saikewicz, supra at 730-731 n.3 ("we emphasize that upon receiving evidence of a significant change either in the medical condition of Saikewicz or in the medical treatment available to him for successful treatment of his condition, the probate judge may issue a further order"). See Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 442 n.41, 497 N.E.2d 626 (1986) ("the new judgment should, of course, include a provision for modification . . . should any significant change or developments ensue"). Indeed, to ensure that treatment plans authorized by the judge [***30] are properly implemented, we have stated that a "judge may delegate to a guardian the power to monitor the treatment process to ensure that the substituted-judgment treatment plan is followed." Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 504, 458 N.E.2d 308 (1983). The settlement agreement itself provided that the court monitor would report to the judge regarding JRC's adherence to the treatment plan; thus, the department's arguments that such a reading of the settlement agreement would allow JRC to implement aversive treatments without regulation are without merit.
We recognize, of course, that HN8"[a] court . . . may not properly exercise the functions of the executive branch of State government." Care & Protection of Isaac, 419 Mass. 602, 605, 646 N.E.2d 1034 (1995), quoting Matter of McKnight, 406 Mass. 787, 792, 550 N.E.2d 856 (1990). See Guardianship of Anthony, 402 Mass. 723, 727, 524 N.E.2d 1361 (1988). Indeed, it is fundamental that a judge's order should and could not ignore the department's authority regarding certification requirements or compliance with applicable regulations. To do so would violate the principles of separation of powers by usurping an executive function. Charrier v. [***31] Charrier, 416 Mass. 105, 110, 616 N.E.2d 1085 (1993). It is not usurping an executive function, however, to require that the judge's order, authorizing the use of certain treatments entered at the time a program is [**140] certified to use aversive treatments, cannot be unilaterally overridden by an executive agency. Indeed, HN9allowing [*447] the department to ignore a judge's order would intrude on the function of the courts, for there is no doubt that the ability to enter orders is necessary to the very existence of the court and essential to the maintenance of the court's authority. Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 631, 477 N.E.2d 361 (1985) ("court must have power to carry out its obligation[s]"). It is just this sort of intrusion that art. 30 prohibits. Chief Admin. Justice of the Trial Court v. Labor Relations Comm'n, 404 Mass. 53, 56, 533 N.E.2d 1313 (1989). Thus, requiring the department to seek to modify the original treatment orders before instituting any change respects the power and authority of both the executive and judicial branches of government. n20
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n20 Contrary to the department's argument, its own regulations do not contemplate its having such unilateral power over individual treatment plans. While the department argues that language in the policy section of the applicable regulations stating that "the use of such procedures for a particular individual will be allowed for a particular client only after a rigorous review and approval by clinicians, human rights committees, and the department" and that "such procedures are only to be used in programs which are specially qualified and certified to use such procedures with appropriate care . . . [and] the application of a procedure for clients even after it has been approved must be strictly monitored by the program as well as by the department itself" demonstrate its power over individual treatment plans, we conclude that the language is consistent with our reading of the regulations -- if that monitoring reveals any problems, that information should be brought to the judge who has authorized the use of aversive treatments. 115 Code Mass. Regs. § 5.14 (1) ©. Moreover, although the department claims to have certified the use of aversive therapies on individual patients at various facilities, the assistant commissioner for quality assurance conceded that there is no authority in the regulations for approval of Level III procedures "in the absence of a certification as a program."
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Thus HN10any unilateral interference by the department in a court-ordered treatment would support a contempt finding. It is not decisive that the agreement did not mention the department by name, for by becoming a party to an agreement that clearly provided that only the judge was to make these decisions, the department was bound not to interfere with individual treatment plans authorized by the judge. See Labor Relations Comm'n v. Boston Teachers Union, Local 66, 374 Mass. 79, 89, 371 N.E.2d 761 (1977) (rejecting argument that legal liability cannot attach for failure to comply with implicit requirements). Cf. Bird v. Capital Site Mgt. Co., 423 Mass. 172, 178, 667 N.E.2d 826 (1996) ("A person who was not a party to an action in which [*448] an order was entered may in certain circumstances be found to be in contempt of that order").
b. Bad faith. Having concluded that the department's interference with individual treatment plans can support a finding of contempt, we look next at the findings of the department's bad faith regulatory practices. The agreement states that "each party shall discharge its obligations under the terms of this agreement, in good faith." The department argues that, because [***33] no other provisions in the agreement speak to how the department is obligated to regulate JRC, there can be no violation of the good faith clause. Indeed, according to the department, any findings relating to the certification process are "immaterial" and cannot support a finding of contempt because, absent such a provision, there cannot be a "clear and undoubted disobedience of a clear and unequivocal command." United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36, 278 N.E.2d 716 (1972). We disagree, leaving aside the implication of the argument that there is no obligation on the part of the department apart from the agreement to regulate in good faith.
It should be kept in mind also that, in the litigation that the agreement sought to settle, the court had found that the department's predecessor had engaged in bad faith regulation of JRC. It is in this context that part L of the settlement agreement must be read. United States v. Board of Educ. of Chicago, 799 F.2d 281, 292 (7th Cir. 1986) (good faith provision cannot be read in vacuum). Where, as here, the agreement as a whole contemplates that the department will continue to regulate JRC, see note 17, supra, [***34] and contains a good faith provision, the provision [**141] applies to the regulation of JRC by the department and is not so ambiguous as to preclude a finding of contempt. Indeed, while we have refused to hold a defendant in contempt if, in order to do so, we would have to expand the scope of an underlying order beyond its plain meaning, Peggy Lawton Kitchens, Inc. v. Hogan, 403 Mass. 732, 734-735, 532 N.E.2d 54 (1989), we have upheld findings of contempt where an order, although subject to some legal interpretation, has nonetheless provided sufficient notice to the party bound by the order that its actions could form the basis for contempt. Nickerson v. Dowd, 342 Mass. 462, 464-465, 174 N.E.2d 346 (1961) ("lawful" operation of business, while confusing term, nonetheless sufficient basis for contempt proceedings). HN11A [*449] "good faith" provision, while subject to some legal interpretation, is certainly not so ambiguous as to fail to put the department on notice that improper regulation of JRC could subject it to contempt proceedings. Indeed, good faith provisions are implied in all contracts, Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471, 583 N.E.2d 806 (1991), and ensure that the substance and purpose of [***35] the agreement is given effect. Warner Ins. Co. v. Commissioner of Ins., 406 Mass. 354, 362 n.9, 548 N.E.2d 188 (1990), quoting Kerrigan v. Boston, 361 Mass. 24, 33, 278 N.E.2d 387 (1972).
Not only is a contempt finding appropriate because the department did not regulate JRC in good faith, HN12a contempt finding is appropriate where "steps are taken to subvert the decree." United States v. Board of Educ. of Chicago, supra at 296. Thus, HN13while judges will not read into an order additional terms, Peggy Lawton Kitchens, Inc. v. Hogan, 403 Mass. at 734-735, judges will not allow a party to do indirectly what an order makes clear he cannot do directly. Stodder v. Rosen Talking Mach. Co., 247 Mass. 60, 68, 141 N.E. 569 (1923) ("courts will not permit defendants to evade responsibility for violating an injunction, by doing through subterfuge a thing which is not in terms a violation, yet produces the same effect by accomplishing substantially that which they were enjoined from doing"). See Labor Relations Comm'n v. Boston Teachers Union, Local 66, 374 Mass. at 89-90 (where defendants enjoined from taking affirmative action to encourage labor strike, provision of order enjoining them from condoning such [***36] action was sufficiently clear to put them on notice that failure to act in appropriate situations would render them liable). To allow such behavior would undermine the efficacy of court decrees and allow anyone to flout the judicial branch. In the instant case then, it would be absurd to conclude that, although the agreement was intended to settle claims that the department's predecessor was improperly denying the patients needed aversive therapy, the department could, through bad faith regulatory practices, ensure that no individual could receive aversive therapies at JRC.
While we agree that part A and part L of the settlement agreement provided "clear and unequivocal command[s]" that would support a finding of contempt, we doubt whether the "impermissibly obstructed" language of part C and the arbitration provisions of part B-2 can be similarly characterized. [*450] Because we conclude that contempt was justified apart from these provisions, we do not rely on these provisions of the settlement agreement in reaching our decision.
We reach our decision, as we must in a contempt action, based on the plain language of the settlement agreement. See Inspector of Bldgs. of Provincetown [***37] v. Eder, 11 Mass. App. Ct. 1011, 419 N.E.2d 1045 (1981). We note, however, that the circumstances and history surrounding the settlement agreement and the ensuing relationship between the department and JRC supports our reading of the settlement agreement. n21 The [**142] action that resulted in the settlement agreement was brought because the parents and guardians of JRC patients alleged that OFC was denying individual patients their constitutional rights to certain treatments and was not regulating JRC in good faith. The settlement agreement sought to remedy this situation while allowing the department to continue to fulfil its statutory duties to regulate mental health facilities.
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n21 For example, in March of 1992, the department's general counsel responded to a letter inquiring about JRC's use of behavior modification procedures with respect to two patients and stated that "the department is currently bound by a settlement agreement with respect to this program. All so-called aversive interventions used at [JRC] must be approved by the Bristol County Probate Court; the department's involvement in the actual treatment is limited." In addition, after initially granting certification to JRC on April 20, 1989, the department attached to the initial grant of certification a memorandum which addressed the potential conflict between substituted judgment orders of the Probate Court and the department regulations. The memorandum noted that the department's treatment plans should not be amended until after a substituted judgment hearing before the Probate Court, and stated that such interpretation of the regulations "is necessary to prevent conflicting decisions by departmental hearing officers and the Probate Court, [because] obviously an executive branch hearing officer cannot overrule a court decision." The memorandum also noted that such a practice was "consistent with departmental practice in [other] cases."
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In sum, we have considered the many arguments the department makes with respect to the settlement agreement, and conclude that the settlement agreement was not, in significant respects, too ambiguous to support a finding of contempt. Indeed, while we are sensitive to the fact that "ambiguity lurks in generality and may thus become an instrument of severity," Labor Relations Comm'n v. Boston Teachers Union, Local 66, supra 374 Mass. at 89, quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 297, 93 L. Ed. 599, 69 S. Ct. 497 (1949) (Frankfurter, [*451] J., dissenting), such danger is not presented by upholding the contempt findings in this case. Finally, we note that the settlement agreement has been in effect since 1986. If the department had felt that the agreement did not clearly define what it could or could not do, the proper remedy would be for the department to have brought an action asking for clarification of the order. 374 Mass. at 91, citing Coyne Indus. Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 275-276, 268 N.E.2d 848 (1971).
c. Whether the judge was warranted in finding contempt. Having concluded that the settlement agreement provided clear and unequivocal commands, the next question is whether [***39] there was "clear and undoubted disobedience" of those commands.
In general, HN14a judge's findings of facts in a contempt proceeding are reviewed using the "clearly erroneous" standard. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). The department argues, however, that, while the clearly erroneous standard is generally the applicable standard, the circumstances of this case call for the standard to be applied more strictly. We disagree. While it is true that HN15stricter scrutiny may be warranted in cases where the judge's findings fail to evidence a "badge of personal analysis," in the instant case, the findings of the judge "so revised [JRC's] proposed findings and conclusions 'that it is clear that the findings are the product of [her] independent judgment.'" Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 465, 583 N.E.2d 806 (1991), quoting Cormier v. Carty, 381 Mass. 234, 237, 238, 408 N.E.2d 860 (1980). Contrary to the department's claim, the judge did not adopt the proposed findings of JRC and make "virtually no changes of any substance in adopting these findings." Rather, JRC proposed many findings that the judge refused to adopt, and she heavily edited many of the findings suggested [***40] by JRC. The judge also rejected certain characterizations suggested by JRC. Moreover, she accepted proposed findings of fact from both JRC and the department, and while the judge incorporated few, if any, of the department's proposed findings, that is a proper exercise of her role as fact finder as long as her findings are supported by the evidence. Indeed, the conclusions of law section of the judge's decision "leaves no doubt that the judge adopted the findings proposed . . . because they accurately expressed [her] decision after [her] consideration of the evidence and [her] evaluation of the credibility of the witnesses." Edinburg v. Cavers, 22 Mass. App. Ct. 212, 219, 492 N.E.2d 1171 (1986).
[*452] HN16What the clearly erroneous standard means is that "[the judge's] findings 'come here well armed with the buckler and shield.'" First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621, 481 N.E.2d 1132 (1985), quoting Matter of [**143] Multiponics, Inc., 622 F.2d 709, 723 (5th Cir. 1980). We are "bound by [her] findings of fact which are supported by the evidence, which include inferences reasonably drawn therefrom." Ricky Smith Pontiac, Inc. v. Subaru of New England, Inc., 14 Mass. [***41] App. Ct. 396, 405, 440 N.E.2d 29 (1982). Thus, we shall not "review questions of fact found by the trial judge, where such findings are supported 'on any reasonable view of the evidence, including all rational inferences of which it was susceptible.'" First Pa. Mortgage Trust v. Dorchester Sav. Bank, supra at 624, quoting T.L. Edwards, Inc. v. Fields, 371 Mass. 895, 896, 358 N.E.2d 768 (1976). Moreover, while there is substantial documentary evidence before us, there is also significant oral testimony, including oral testimony about those documents, and "HN17when the evidence is of mixed character -- live and documentary -- it is settled that the clearly erroneous standard applies to both categories." Cornwall v. Forger, 27 Mass. App. Ct. 336, 338, 538 N.E.2d 45 (1989). Finally, our standard of review also does not change because of the subject matter of the findings and the severity of the relief predicated on them.
With the appropriate standard in mind, we now review the evidence to determine whether a finding of contempt was warranted. It is not necessary for us to review all 304 findings that led to the contempt order. Rather we think it appropriate to review some of the most egregious behavior of the [***42] commissioner and the department that warranted the contempt finding and the remedies imposed by the judge.
d. Part A of the settlement agreement. The judge found that the department violated part A of the agreement by, inter alia, ordering JRC by letter dated January 20, 1995, n22 to discontinue use of court-authorized procedures for six JRC patients. n23 The department argues that the judge mischaracterized the condition in the letter requiring JRC to discontinue [*453] Level III interventions for the six patients. Rather, the department argues that the letter gave JRC the choice of revising the treatment plans either to conform to the department's regulations (and to apply for recertification) or to exclude Level III aversives. The department also argues that the existing treatment plans were to remain in effect until new plans were approved in accordance with the department's regulations, including those regulations that required a substituted judgment proceeding.
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n22 The letter stated: "This certification excludes authorization for [JRC] to continue to use indefinitely Level III interventions for six individuals . . . ." [***43]
n23 One of the individuals had been the subject of a recent five-day treatment plan review by the Probate Court. The Probate Court judge had conducted a treatment plan review, commencing on October 31, 1994, and concluding December 21, 1994, specifically approving Level III aversive therapy for the individual who was one of the most difficult to treat patients at JRC. See Guardianship of Brandon, post 424 Mass. 482, 677 N.E.2d 114 (1997). See also note 19, supra.
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It is true that the letter of January 20, 1995, gave an option; the option, however, was not the department's to give. The settlement agreement (and HN18the department's own regulations, 115 Code Mass. Regs. § 5.14 [4], [5]) makes clear that the judge was to make the ultimate decision regarding the treatment plan of individuals. See supra at 18-20. As discussed previously, if the department had new information, i.e., that the program was no longer certified, the proper course would be to bring that new information to the judge. It was not to contradict the judge's orders which authorized certain treatments and order JRC, who had authorization [***44] to use aversive therapies for individual patients, to go back to the judge with new treatment plans or to modify treatment plans so as to exclude aversive therapies. Indeed, the letter mandated that if, after thirty days, JRC did not apply to be recertified in the use of Level III interventions for the six individuals, JRC must begin modifying the treatment plans to exclude Level III aversives. That the department may or may not have been acting in good faith is irrelevant -- HN19good faith is not a defense to a charge of contempt. United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 38, 278 N.E.2d 716 (1972) ("good faith," "absence of wilful disobedience," and "lack of intent to violate a decree do not [**144] constitute a valid defence for a corporation charged with civil contempt"). Thus, the judge's conclusion that the department violated part A of the settlement agreement by interfering with the treatment plans of six individuals is not clearly erroneous.
e. Part L of the settlement agreement. The judge found that part L of the settlement agreement was violated when the [*454] commissioner "departed from ordinary Department practice by . . . holding weekly meeting[s] with high-level staff [***45] to discuss JRC." At these meetings, "a plan was formulated to disrupt the operations of JRC by every conceivable means -- to allege that clients were being abused; to interfere with financial operations; to disrupt JRC's relationships with funding agencies, as well as parents; and other activities which have absolutely no bearing on the legitimate exercise of regulatory authority." Moreover, the judge concluded that the commissioner, who testified that the meetings were held strictly to deal with the recertification issue, tried to conceal the true purposes of these meetings.
Clearly, HN20a finding that the department developed and acted on a plan to interfere with JRC and put it out of business would warrant the conclusion that the department was regulating JRC in bad faith, for it "carries an implication of a dishonest purpose, conscious doing of wrong, or breach of duty through motive of self-interest or ill will." Hartford Acc. & Indem. Co. v. Millis Roofing & Sheet Metal, Inc., 11 Mass. App. Ct. 998, 999-1000, 418 N.E.2d 645 (1981), citing Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416-417, 8 N.E.2d 895 (1937). Indeed, if the judge's findings of fact are not clearly erroneous, then [***46] "bad faith can reasonably be inferred from the evidence." Chapman v. University of Mass. Medical Ctr., 417 Mass. 104, 110, 628 N.E.2d 8 (1994). The department argues, however, that the judge erred in concluding that the commissioner attempted to conceal the subject of these meetings from the judge and that the judge's findings on this subject form the basis for her conclusions of perjury, government malfeasance, and attorney misconduct.
Our review of the evidence leads us to conclude that the judge was warranted in finding that the commissioner did in fact testify that the meetings were held to deal strictly with certification issues. n24 Regardless, however, whether the commissioner attempted to conceal the subjects of these meetings, it is clear that the testimony at trial warranted a finding that [*455] the department had developed and acted on a plan to put JRC out of business and was regulating JRC in bad faith, and it is this conclusion that warrants a finding of contempt and the imposition of a receivership.
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n24 Q.: "Commissioner, starting in the summer or fall of 1993, you started having weekly meetings concerning [JRC]'s application for certification; is that correct?"
A.: "Yes."
Q.: "Those meetings dealt strictly with the issue of [JRC]'s application for certification?"
A.: "Yes."
Q.: "They were not assembled for any other purpose?"
A.: "That's correct."
While the judge concluded that the "materially false statements under oath . . . would support a prosecution for perjury" and referred "the matter to the District Attorney . . . for a determination as to whether a prosecution for perjury and/or criminal contempt should be instituted," we need not consider whether the evidence would support a perjury charge.
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Work plans and notes taken at these meetings included the notations "December 15 - [JRC] D-Day" and "what would [JRC] have to do to not be certified: two areas a capacity to obey laws and efficacy of treatment" (emphasis in original). There was also an agenda item on the issue of how Rhode Island was able to remove patients from JRC and "turn over its clients to [another facility]." In addition, the work plan agenda also reveal that the commissioner, contrary to department policy, was to brief a District of Columbia official on the status of an investigation of a patient at JRC before the investigation was complete, and that the commissioner's special assistant was to develop other contacts with out-of-State funding agencies. Indeed, the commissioner and his special assistant were assigned the task of researching whether Washington, D.C., had alternate placement plans for the JRC patient. The work plans also reveal that the department was researching [**145] former JRC staff and planned to distribute profiles on seven Massachusetts citizens who had transferred out of JRC. Based on this evidence, the judge's conclusion was not clearly erroneous that the work plans reflected a strategy [***48] to interfere with JRC's relationships with funding agencies.
There was also ample evidence to support the judge's finding that the department planned to interfere with JRC's financial operations. The work plans reveal that, at these meetings, the commissioner undertook the task of confirming JRC's fiscal status even though the commissioner testified that a review of JRC's fiscal status had nothing to do with [*456] certification. An attorney, who was retained by the department to assist with JRC's certification application and was made a special assistant attorney general, was instructed to run title searches on all JRC property in order to determine whether there were any undisclosed related party transactions, even though the commissioner testified that he had no basis to believe there were any such transactions and conceded that the issue is the responsibility of the division of purchased services and not the department. The commissioner also testified that whether JRC property was leased or owned, had nothing to do with the issue of certification yet the assistant commissioner for quality assurance was assigned the task of determining whether JRC's property was leased or owned. n25 Finally, [***49] the work plans reveal that the department attempted to interfere with the rate at which JRC was reimbursed by the division of purchased services by arguing that the department and JRC should negotiate a rate for reimbursement rather than having the rate set by the division of purchased services and by arranging an unlawful "pre-meeting" between the department, the division of purchased services, and the Department of Education before JRC met with the division of purchased services and the Department of Education officials for a pricing meeting.
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n25 While the department argues that all 304 findings of fact are clearly erroneous, nowhere in its brief does it challenge the findings that these topics were, in fact, discussed at the meetings, and that the commissioner testified they did not have anything to do with certification. Rather, the department tries to sidestep the issue, arguing only that the commissioner never claimed not to have discussed these issues and therefore cannot be found to have acted in bad faith. The department's argument ignores that it is not solely the commissioner's denial or admission of these actions that warranted a finding of contempt -- it was the actions themselves that demonstrated the department was regulating the JRC in bad faith.
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Based on the testimony and the "work plans" of the Tuesday morning meetings, there is no doubt that the judge's conclusions that the Tuesday morning meetings involved activities which had nothing to do with the certification (or regulatory) process and that the department developed a plan to put JRC out of business through interfering with JRC's relationships with funding agencies and JRC's fiscal operations are not clearly erroneous. Indeed, the work plans reveal that less than two months after the second review team had recommended that JRC be recertified, the department wanted [*457] a receivership petition prepared in case JRC went out of business. n26 Moreover, while [**146] the department argues "despite whatever the commissioner and his staff may have discussed, planned, or desired, they did not close down (JRC), put it into receivership, or put it out of business," there is ample evidence to support the judge's conclusion that the commissioner interfered with JRC's operations without justification.
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n26 The department argues that the information regarding the receivership petition revealed by the work plans is protected by the attorney-client privilege. We agree with the judge that the information is not protected by the privilege. HN21The attorney-client privilege protects communications made between a lawyer and a client for the purpose of obtaining legal advice. See Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115, 676 N.E.2d 436 (1997); Rent Control Bd. of Cambridge v. Praught, 35 Mass. App. Ct. 290, 296, 619 N.E.2d 346 (1993). We must, however, construe the privilege narrowly. Commonwealth v. O'Brien, 377 Mass. 772, 775, 388 N.E.2d 658 (1979). Thus, while the department analogizes to Upjohn Co. v. United States, 449 U.S. 383, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981), where the Supreme Court recognized that for a corporate lawyer to function effectively, it is often necessary for the lawyer to obtain information from middle and lower-level employees in order to advise the corporation appropriately, id. at 394, that case is inapposite where, as here, there has been no showing that all of those present at the meeting provided the department's counsel with information she needed in order to advise the department, nor has there been a showing that all those present at the meeting were seeking legal advice. Rather, the evidence overwhelmingly supports the conclusion that the meeting was a general policy meeting. Thus, HN22while the documents would be protected from mandatory disclosure during the time the policy was being developed, G. L. c. 4, § 7, Twenty-sixth (d); Babets v. Secretary of Human Servs., 403 Mass. 230, 237 n.8, 526 N.E.2d 1261 (1988), after the policy decision has been made there is no privilege. Id. at 238-239.
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Further evidence of the department's plan to shut down JRC is found in its imposition of "a severe and essentially constant burden on the JRC staff by having to respond to an unrelenting stream of bad faith regulatory demands and other bad faith conduct." Examples of the regulatory barrage launched by the department include demanding that JRC psychologists rewrite fifty-two behavior modification treatment plans that had previously been approved by the judge, requiring the department to respond to fifty-six medical and forty-two psychiatric evaluations written by the psychiatrists and physicians retained by the department to examine all of the JRC patients "without an analysis or even regard to whether any of these were clinically indicated," requiring JRC to provide a "list of aversive techniques and an existing description of how such techniques are used at JRC" even [*458] though this information was already given to a review team," and instigating more than fifty abuse investigations.
The department argues that there was a good faith basis for requiring JRC to conduct independent psychiatric and medical reviews for all its patients. It was appropriate for the judge to conclude otherwise. [***52] The commissioner testified that no psychiatrist gave him any information which suggested a need for psychiatric evaluations or information that the client's behavioral problems could be treated psychiatrically. Moreover, the commissioner could not identify any physicians who had advised the department that there were unmet medical needs, and concurred that all JRC patients were in good health. Perhaps most telling, the commissioner testified that he had never read any of the reports written by the psychiatrists that the department had retained to examine JRC patients.
In addition to requiring JRC to respond to numerous requests for documents, the judge concluded that the regulatory barrage included numerous visits to JRC by department officials and others which distracted JRC staff from working with patients. Indeed, the judge found that, from late October through the end of December 1994, "JRC was besieged with visits . . . . From August of 1993 to December of 1994, there were over 400 visits . . . ."
One such visit was by the Rivendell review team during the week of March 20, through March 25, 1994. The judge concluded that the "selection of Rivendell was the antithesis of a fair, [***53] unbiased and independent review. [The department's] selection of Rivendell was purposeful and is an example of bad faith." n27 The judge was warranted in concluding that the selection of the Rivendell review team constituted bad faith regulation of JRC. Given that the team leader was the first individual signatory to the "Call to Action" which equated aversive therapies to political torture, the judge's conclusion that the Rivendell review team was incapable of doing an unbiased review was not clearly erroneous. Indeed, the attachments to the "Call to Action" made serious claims of mistreatment by JRC. The judge, having heard testimony that the assistant commissioner for quality assurance had received a copy of the "Call to Action" which equated the [*459] use of aversives with political torture, was not required to believe the assistant commissioner for quality assurance's testimony that she believed the Rivendell team leader was impartial. See Hawthorne's Inc. v. Warrenton Realty, Inc., 414 Mass. 200, 201, 606 N.E.2d 908 (1993) (judge in best position to evaluate credibility of witnesses); First Pa. Mortgage Trust v. Dorchester Sav. Bank, 395 Mass. 614, 621, 481 N.E.2d 1132 (1985) (due regard given to [***54] opportunity of judge to assess credibility of witnesses). Moreover, the judge's disbelief [**147] of the assistant commissioner for quality assurance's testimony was not the only basis for her conclusion that the selection of Rivendell was made in bad faith. The judge also found that the Rivendell review team was selected without the department receiving the resumes of the professionals involved. In addition, the judge found that the assistant commissioner for quality assurance requested that Rivendell modify the original RFP that it had submitted and that the original RFP stated that "the assembly of a sufficiently qualified team at such short notice is close to impossible." Moreover, the original RFP revealed that the bid submitted by the Rivendell team was one and one-half times higher than the only other bid. Our review of the evidence demonstrates that none of these findings was clearly erroneous, and that the judge was warranted in concluding that the department was regulating JRC in bad faith. n28
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n27 The judge also noted that the Rivendell review team requested indemnification from the department for its review of JRC. [***55]
n28 Other examples of the department's putting its plan into action include the letters sent by the department to the funding agencies which contained misleading and false information. The department argues that the commissioner had a good faith basis for all of the statements and the conditions contained in the various letters. While we need not review all of the letters, we note, for example, that the letter of August 6, stated that the department had found "continued and repeated noncompliance with [the department] regulations." Our review of the evidence leads us to conclude that the judge's finding that the letter was sent in an attempt to interfere with JRC's relationships with funding agencies was not clearly erroneous. Indeed, this statement was in direct conflict with the report of the 1993 review team that had been submitted just a few weeks prior to the August 6, letter and the 1991 report, both of which the commissioner testified that he had not read at the time he sent the letter. Moreover, the commissioner was asked, "Would it be fair to state that you . . . did not review the reports of your certification team, you did not review the court orders of the Bristol County Probate Court and you did not review any of the evaluations of the psychologists who had been appointed by the [department]; is that a fair statement?" He responded, "Yes." Thus, it is clear that there is ample evidence to support the inference that the letter was sent in bad faith as part of the plan to put JRC out of business.
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The department argues that the judge impermissibly imposed the burden on the commissioner to prove that he [*460] acted in good faith and that, where the defendant is a State official, "who is attempting to carry out his statutory duties as he understands them, contempt sanctions are not an appropriate means of redressing any violation of his obligation to act in good faith," and raises serious separation of powers problems. The department argues that the judge should have assumed that the commissioner would henceforth act in accordance with the law as judicially construed. We disagree.
Our review of the record leads us to conclude that the judge did not impermissibly shift the burden to the department to prove that the commissioner acted in good faith. While the judge did at times ask the commissioner what his good faith reason was for taking certain actions, these questions generally came after affirmative evidence suggesting bad faith had been admitted, and reflected the judge's efforts to get the commissioner's response. n29 Moreover, the judge, in finding bad faith, did not merely rely on her disbelief of the testimony of the commissioner and other witnesses of the department. Contrast [***57] Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 223-224, 598 N.E.2d 666 (1992). The work plans and other documents, as well as the testimony, provided the judge with an ample basis for making the findings she did.
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n29 For example, on the first day of trial, the assistant general counsel testified that the 1993 review team's report and the 1991 review team's report were not submitted to the judge on September 22, 1993, when the department submitted other information. The judge, on learning that these favorable reports had not been presented to her stated: "My mind is always open to what you present me. But I'm faced with misrepresentations to the Court and I welcome an explanation as to why it should not be characterized in that way and I am looking forward to it and I hope that it's presented soon."