Number 10 November 15, 1971

Number 10 November 15, 1971 Mrs. Mary B. Newman, Secretary Executive Office of Manpower Affairs 18 Tremont Street Boston, Massachusetts 02108 Dear Secretary Newman: You have requested my opinion whether you may deposit funds which are received by the Commonwealth as a result of the Federal Emergency Employment Act (Pub. L. 92-54; 85 Stat. 146) in the Unity Bank and Trust Company. You have advised that during the Fiscal Year 1972 the Commonwealth, as program agent, will be receiving a total of $21,858,605, more than three quarters of which is designated for cities and towns. The remainder will be used to fund the payroll for the state employees covered by the Act. You further state that the Federal Department of Labor has urged state and municipal agencies which are the recipients of Federal funds to keep all or a portion of those funds in a minority bank. Finally, you ad- vise that Unity Bank is the only minority bank in New England. By minority bank, I presume you mean a bank serving the black commu- nity, owned and staffed principally by blacks. The answer to your question depends upon various constitutional and statutory provisions. Article 63 of the Articles of Amendment to the Constitution of the Commonwealth provides, in section 1: "All money received on account of the commonwealth from any source whatsoever shall be paid into the treasury thereof." (Emphasis supplied.) The Federal funds received by the Commonwealth as agent for the Emergency Employment program are clearly received "on account of the commonwealth" within the meaning of Article 63. The Act itself speaks of the states as recipients of the funds and refers to the amount apportioned to each state. Pub. L. 92-54, 85 Stat. 146, § 9(b). In another context, Federal funds received as reimbursements have been consid- ered to be funds received "on account of the commonwealth." Opinion P.D. 12 65 of the Justices, 334 Mass. 716, 718. See, also, Opinion of the Justices, 349 Mass. 804, 809. In the absence of any Federal statute mandating payment of the funds directly to your agency and not to the Treasury of the Commonwealth or any statutory exception which would characterize the funds as not being received "on account of the commonwealth," I conclude that the funds must be treated as are all other monies received by the commonwealth. That being the case, the monies are subject to the control and supervi- sion of the Treasurer and Receiver General. General Laws, Chapter 29, section 34 authorizes the Treasurer to deposit "public monies in his pos- session" in those banks which have been approved "at least once in every three months by the governor and council ..." Thus, subject to the restrictions of section 34, the Treasurer could deposit Emergency Employment Act funds in the Unity Bank and Trust Company. It is possible, however, that the statutory provisions relating to ad- vancements from the state treasury can be utilized in the instant situa- tion. General Laws, Chapter 29 contains the following three sections, all relating to the procedure for advancements: § 23. "Any officer authorized to expend money in behalf of the commonwealth may have money advanced to him from the treasury for such purposes, in such sums and subject to such rules and regulations as the comptroller may deter- mine." § 24. "Such officers shall certify that the amount is needed for immediate use, and, as specifically as may be, the pur- poses for which the expenditure is required. The certificate shall bear the approval of the officer or department having the supervision of such expenditure and, when filed with the comptroller, his certificate and the warrant and payment shall follow as in case of claims against the commonwealth." § 25. "Such officers shall, within thirty days after receipt of an advance, file with the comptroller a detailed statement of the amounts expended subsequent to the previous account- ing, approved by the officer or department authorized to supervise such expenditure, with vouchers therefor if they can be obtained. All advances so made shall be accounted for and vouchers therefor filed with the comptroller before the close of the fiscal year." As section 23 provides, advancements are subject to the rules and regulations of the Comptroller. I am advised that the Comptroller will permit advancements for authorized purposes subject to such rules, pro- vided the deposit is in a bank approved by the Treasurer and Receiver General from the list which, in turn, is approved by the Governor and Council. In 1960, the then Attorney General stated: "It is clear that the Treasurer may advance monies from deposits under his control to officers of the commonwealth by 66 P.D. 12 virtue of and subject to the provisions of G. L. c. 29, §§ 23, 24 and 25. When such State officers deposit the money so ad- vanced the deposit is not subject to G. L. c. 29, § 34, but is instead subject to §§ 23, 24 and 25." 1961 Op. Atty. Gen'l (Sept. 22, 1960) 55, 56. Construing the statement in the opinion that "tfre deposit is not subject to G. L. c. 29, § 34" to mean that the deposit is not subject to the per- centage limitations for deposit of state funds set out in section 34, I con- cur in the statement quoted above. In answer to your question, then, it is my opinion that Emergency Employment Act funds may be deposited in the Unity Bank and Trust Company provided the procedures of G. L. c. 29, §§ 23, 24 and 25 are followed. Very truly yours, ROBERT H. QUINN Attorney General