Number 16. August 9, 1967

Number 16. August 9, 1967. His Excellency John A. Volpe, Governor of the Commonwealth Dear Governor Volpe: — You have requested my opinion as to whether the advice and consent of the Executive Council must be obtained in ap- pointing a person to fill a vacancy in the office of district attorney. General Laws c. 54, i^j 142, in relevant part, states: "Upon a vacancy in the office of district attorney ... the gover- nor with the advice and consent of the council may appoint some person thereto until a district attorney ... is qualified." Although the language of § 142 by its terms appears to require the advice and consent of the council, this language must be read in connection with the later language of the Acts of 1964, c. 740, § 3. Section 3 provides, in relevant part: "Subject to section two of this act [not here relevant] and ex- cept as required by the constitution of the commonwealth, so much of each provision of the General Laws ... as requires the advice and consent of the council to any appointment in the exec- utive department ... is hereby repealed." Because the Constitution of the Commonwealth does not require the ad- vice and consent of the Council with respect to interim appointments to the office of district attorney, the only relevant question is whether such an ap- pointment is an "appointment in the executive department" within the meaning of c. 740, § 3. "Executive department" is defined by § 1 of c. 740 as follows: "As used in this act, the phrase 'executive department' shall in- clude, without limitation, all departments, divisions, boards, bu- reaus, commissions, institutions, councils and offices of state gov- ernment and of county government, and any instrumentality or agency within or under any of the foregoing, whether or not serv- ing under the governor or under the governor and council, and any independent authority, district, commission, instrumentality or agency, but expressly excluding therefrom the legislative and judicial departments and any instrumentality or agency of a city or town." 64 P.D. 12 It is my opinion that the office of district attorney is encompassed within the broad language of § 1 , and is therefore an office "in the executive de- partment" as that phrase is used in § 3. This result is consistent with an ear- lier Opinion of the Attorney General. See 6 Op. Atty. Gen. 1921, pp. 360- 362. It follows from this that the approval of the Executive Council is not re- quired as to an interim appointment to the office of district attorney under G. L. c. 54, § 142. Very truly yours, Elliot L. Richardson, Attorney General