Number 13. July 26, 1967

Number 13. July 26, 1967. Honorable Hugh Morton, Chairman, Civil Service Commission Dear Mr. Morton: — You have requested my opinion regarding the au- thority of the Commissioner of Corporations and Taxation, without pro- ceeding under G. L. c. 31, § 43(a), to "assign" a female employee holding the permanent position of Senior Clerk in the Inheritance Tax Bureau, Di- vision of State Taxes in the Department of Corporations and Taxation to a position in the Bureau of Analysis and Processing in the same Division of the Department. There is nothing to indicate that the duties of the two posi- tions are the same, if that should be material. General Laws c. 3 1 , § 43(a) provides in pertinent part: "Every person holding office or employment under permanent appointment in the official or labor service of the Common- wealth, or of any county, city or town thereof, shall have unlimit- ed tenure of office or employment, subject to the provisions of this chapter and the rules made thereunder. He shall not be . . . transferred from such office or employment without his consent in writing, . . . except for just cause and for reasons specifically giv- en him in writing." (Emphasis supplied.) In your request you state that the employee was appointed to her position as Senior Clerk in the Inheritance Tax Bureau on July 14, 1963 as the re- sult of passing a promotional examination for the filling of two vacancies for females in that Bureau. She has been a member of the staff of the Bureau since April 4, 1961 . On January 13, 1967 the employee was notified by letter signed by the then Commissioner of the Department of Corporations and Taxation that she was "assigned" to the Bureau of Analysis and Processing of the Depart- ment. On January 18, 1967, she requested a hearing before the Civil Serv- ice Commission under the provisions of G. L. c. 31, § 46A, alleging that she was being transferred without her consent. ^ A hearing was held on Jan- The relevant section of G. L. c. 31, S 46A provides ". . . if any person alleges that his employment or compensation has been affected by action of the appointing authority in failing to follow the require- ments of section forty-three, he may tile a complaint with the Civil Service Commission. . . . This complaint may be filed with the request of the said person for hearing under the provisions of said section forty-three and if it is determined by the Civil Service Commission that the said authority has failed to follow the requirements of section forty-three or the rights of said person have been prejud- iced thereby, the said commission may order said appointing authority to restore immediately said person to his employment without loss of compensation or other rights." 56 P.D. 12 uary 27, 1967 before a disinterested person designated by the Chairman of the Civil Service Commission in accordance with the requirements of G. L. c. 31, § 43. It is in connection with this hearing that you ask the following two questions: "(•) Does the action of the Commissioner of Corporations and Taxation . . . constitute a transfer from the Inheritance Tax Bureau as the word 'transfer' is used in General Laws, Chapter 3 1 , Section 43, despite the terminology of the word 'assigned' as used by the Commissioner? "(2) If your answer to Question 1 is in the affirmative, do the provisions of General Laws, Chapter 14, Section 3, exempt the Commissioner from complying with the provisions of General Laws, Chapter 3 1 , and more particularly the provi- sions of Section 43 thereof?" Your first question seems to assume that there would be a "transfer" be- tween the two bureaus within the meaning of G. L. c. 3 1 , § 43, except pos- sibly for the word "assigned" used by the Commissioner in his letter of Jan- uary 13, 1967. I concur with your conclusion that there may be a transfer within the meaning of G. L. c. 3 1 , § 43 between bureaus within the same department and, indeed, a former Attorney General reached the same con- clusion in like circumstances.^ Simply because the Commissioner chose to use the word "assigned," the substance of this action is not changed. I there- fore answer your first question in the affirmative. As regards your second question, you state that it was the view of the Commissioner of the Department of Corporations and Taxation that he need not comply with G. L. c. 31, § 43 by virtue of G. L. c. 14, § 3, which provides in relevant part: "The commissioner shall assign to all officials, agents, clerks and other employees of the department their respective duties, and may transfer them." (Emphasis supplied.) However, it is my opinion that the foregoing section does not render inappli- cable the limitations fixed by the Civil Service Law. The context of the en- tire section indicates that employment in the Department of Corporations and Taxation is ordinarily subject to the Civil Service Law. Thus the fourth paragraph of the section makes appointments and removals subject to that Law "when applicable." In a similar situation the Supreme Judicial Court held that a broad power in an appointing authority to "employ and remove" employees does not render inapplicable the provisions of that Law. Walsh V. Civil Service Commission, 300 Mass. 244. As stated by the court in that case: "The words 'employ and remove,' or other equivalent phrases standing alone without qualification in statutes respecting public employment, do not ordinarily render inapplicable the civil serv- ice laws." page 246. "Report of the Attorney General for the \ear Ending June 30, 1947, page 24, involving the change of employment of an engineer from the Park Division of the Metropolitan District Commission to the Commission's Sewerage Division. See G. L. c. 31, S 16A also dealing with transfers of civil service employees and especially the portion which provides "No transfer shall be made without the consent of the employee and the approval and consent of the appointing authority in ihc (Upiirinwnl or departments involved." (Emphasis supplied.) Sections 43 and 16A must be read together. Cooper v. Civil Service Commission, 314 Mass. 76. P.D. 12 57 Therefore, in answer to your second inquiry, it is my opinion that the provi- sions of G. L. c. 14, § 3 do not exempt the Commissioner of Corporations and Taxation from complying with the provisions of G. L. c. 3 1 , §, 43 rela- tive to transfers. Very truly yours, Elliot L. Richardson, Attorney General