Number 2. July 6, 1967

Number 2. July 6, 1967. Dr. Richard M. Millard, Chancellor, Board of Higher Education Dear Doctor Millard: — You have requested my opinion on whether or not the Board of Higher Education may compensate President Daniel H. O'Leary of Lowell State College, Dr. Andrew Torrielli, a faculty member of Lowell State College, and one Henry Goguen, who is not employed by the Commonwealth, for screening applications for scholarships to be awarded by the Board, and making recommendations thereon to the Board. Although your letter does not so state. President O'Leary, by vote of state college presidents, also serves as a member of the advisory commission to the Board. See G. L. c. 15, § IB. Mr. Goguen is not already employed by the Commonwealth, and there is no problem in compensating him for his services in screening applications. His employment is, in my opinion, permitted under G. L. c. 15, § ID, which authorizes the Board ''to administer a scholarship program" and to "employ . . . consultants ... to study specific matters of concern to the board." President O'Leary and Dr. Torrielli may, in my opinion, be compensated under the foregoing section for the screening services described above, provided the following four conditions are met: ( 1 ) The services are rendered only occasionally. (2) The services are performed outside the normal working hours of President O'Leary and Dr. Torrielli as salaried personnel. (3) The services are not required to be performed by President O'Leary and Dr. Torrielli as part of their salaried duties. (4) No other person is available to perform the services as part of his regular duties. Your inquiry requires first a construction of G. L. c. 30, § 21, which provides: "A person shall not at the same time receive more than one salary from the treasury of the commonwealth." General Laws c. 4, § 7, Twenty-Seventh, provides that in construing stat- utes, unless a contrary intention clearly appears, " 'Salary' shall mean an- nual salary." And in Maynard v. Royal Worcester Corset Co., 200 Mass. 1, it was said at page 4, that "This word [salary] is perhaps more frequently applied to annual employment than to any other, and its use may import a factor of permanency." See also Mahonev v. Hildreth & Rogers Co., 332 Mass. 496, 499. 34 P.D. 12 It is the factor of permanency that has been underscored in a series of opinions by Attorneys General in determining whether compensation from the Commonwealth is a "salary" within the meaning of G. L. c. 30, § 21. See Report of the Attorney General for the Year Ending June 30, 1956, p. 42 (and opinions cited therein). As stated in 5 Op. Atty. Gen. 699, 700 (1920). "It is not necessary to quote authorities in defining what is meant by the word 'salary' other than to point out that it is limited to compensation established on an annual or periodical basis and paid usually in installments, at stated intervals, upon the stipulat- ed per annum compensation. It differs from the payment of a wage in that in the usual case wages are established upon the ba- sis of employment for a shorter term, usually by the day or week, or on the so-called 'piece work' basis, and are more frequently subject to deductions for loss of time." If, therefore, compensation for President O'Leary and Dr. Torrielli is estab- lished upon the basis of only occasional employment in their screening of applications, the first of the four conditions enumerated above will be satisfied. The second and third conditions are based on G. L. c. 29, i^ 31, which reads in part as follows: "Salaries payable by the commonwealth shall . . . be in full for all services rendered to the commonwealth by the persons to whom they are paid." As interpreted by my predecessors, this section bars compensation for extra services unless the services are not required in the performance of the salaried position and are rendered outside the usual hours of employment therein. 2 Op. Atty. Gen. 309 (1902); 5 Op. Atty. Gen. (1920) 699, 701. Attorney General's Report for the Year Ending November 30, 1937, p. 120. Attorney General's Report for the Year End- ing June 30, 1956, p. 42. Applying these criteria to the present situation, the duties of presidents and faculty members of state colleges as defined in the "job descriptions" compiled by the trustees of state colleges pursuant to G. L. c. 73, i^ 16, do not include the screening of applications for scholarships to be awarded by the Board of Higher Education. Although President O'Leary has also been chosen by a vote of state college presidents to serve on the advisory com- mission to the Board, I do not believe that this additional responsibility dis- qualifies him from being compensated for screening scholarship applica- tions. He receives no additional compensation for serving on the advisory commission; his only duty as a member thereof is to attend meetings of the Board and, of course, to give it advice. G. L. c. 15, § IB. In my opinion, this does not carry with it the duty to screen scholarship applications sub- mitted to the Board. I assume that the number of applications is considera- ble and that the screening of them is a time-consuming, painstaking task which, in the interest of applying uniform criteria, should be performed by a small group of examiners. Screening thus does not appear to be an inci- dent of the regular duties of the members of the advisory commission. The next issue concerns the requirement, derived from G. L. c. 29, § 3 1, that the extra services must be performed outside usual hours of employ- ment. Neither the statute establishing the positions of President and faculty members of Lowell State College (G. L. c. 73, § 16) nor the "job descrip- tions" which are prepared pursuant to it prescribe the usual hours of em- P.D. 12 35 ployment for President O'Leary or Dr. Torrielli. Since each serves in a pro- fessional capacity, a certain degree of flexibility must be presumed. Nev- ertheless, it is for your Board to establish that the screening of scholarships by President O'Leary and Dr. Torrielli in no way interferes with the per- formance of their salaried duties during the hours that they ordinarily de- vote to them. If there is no interference, then it is my opinion that they sat- isfy the third condition. The fourth condition — that no other person is available to perform the services as part of his regular duties — was first enunciated by Attorney General J. Weston Allen in 1920, 5 Op. Atty. Gen. 697, 698-699. This condition, like the first three conditions, presents a question of fact which must be determined by your Board in the exercise of sound discretion. Very truly yours, Elliot L. Richardson, Attorney General