Number 2 July 19, 1972

Number 2 July 19, 1972 Dr. Robert Wood, President University of Massachusetts Office of the President 85 Devonshire Street Boston, Massachusetts 02109 Dear President Wood: You have requested my opinion with respect to the following two questions: "1. Does the University of Massachusetts have the au- tonomous authority under Mass. G. L. c. 75 to enter into a lease for a term of years for new office space with rental to be paid from State appropriations, notwithstanding the provi- sions of Mass. G. L. c. 8, § lOA and St. 1971, c. 719, or any other provisions of law?" "2. Does the University of Massachusetts have the au- tonomous authority under Mass. G. L. c. 75 to enter into an oral tenancy-at-will for additional office space with rental to be paid from State appropriations, notwithstanding the provi- sions of Mass. G. L. c. 8, § lOA and St. 1971, c. 719, or any other provisions of law?" I proceed first to Question Number 1. G. L. c. 8, § lOA provides, in pertinent part: "The commonwealth, acting through the executive or ad- ministrative head of a state department, commission or board and with the approval of the superintendent and of the gover- nor and council and of the commissioner of administration, may lease for the use of such department, commission or board, for a term not exceeding five years, premises outside of the state house or other building owned by the common- wealth, if provision for rent of such premises for so much of the term of the lease as falls within the then current fiscal year has been made by appropriation." "Section 10A was enacted to give authorization to heads of depart- ments, commissions and boards to enter into leases for premises outside State owned buildings." United States Trust Company v. P.D. 12 41 Coniinonwealth, 348 Mass. 378, 383. 'll]t was believed that the power to lease would result in a saving of rental costs to the Commonwealth." /(/., at 383. "The procuring of outside office space ... is mainly a ques- tion of finance . . . This is a budgetary matter and should be handled entirely by the Commission on Administration and Finance." /(/., at 383. The first issue raised by your question is the extent, if any, to which G. L. c. 8, § lOA applies to the Board of Trustees of the University of Massachusetts. Notwithstanding Opinion of the Attorney General, July 19, 1965 at 47, 48, I have serious doubts whether the Board of Trustees constitutes a "board" within the intent and purview of G. L. c. 8, § lOA. However, I do not, at present, find it necessary to make such a determination since, in my opinion, even if at one time G. L. c. 8, § lOA did encompass the Board of Trustees of the University of Massachu- setts, it has since been impliedly repealed with respect to that body. As I previously stated in Opinion of the Attorney General, December 17, 1969, at 86, "[cjhapter 648 of the Acts of 1962 significantly amended G. L. c. 75 and expanded the authority of the Board of Trustees of the University of Massachusetts." As amended, G. L. c. 75, § 1 provides: "There shall be a University of Massachusetts which shall continue as a state institution within the department of educa- tion but not under its control and shall be governed solely by the board of trustees established under section twenty of chapter fifteen. In addition to the authority, responsibility, powers and duties specifically conferred by this chapter, the board of trustees shall have all authority, responsibility, rights, privileges, powers and duties customarily and tradi- tionally exercised by governing boards of institutions of higher learning. In exercising such authority, responsibility, powers and duties said board shall not in the management of the affairs of the university he subject to, or superseded in any such authority by, any other state board, bureau, de- partment or commission, except as herein provided." (Em- phasis supplied.) G. L. c. 75, § 3 provides, in pertinent part: ""Notwithstanding any other provision of law to the con- trary, except as herein provided, the trustees may adopt, amend or repeal such rules and regulations for the govern- ment of the university, for the management, control and ad- ministration of its affairs, for its faculty, students and em- ployees, and for the regulation of their own body, as they may deem necessary ..." (Emphasis supplied.) G. L. c. 75, § 8 provides, in pertinent part: ""Notwithstanding any other provision of law to the contrary, the general court shall annually appropriate such sums as it deems necessary for the maintenance, operation and support of the university; and such appropriations shall 42 P.D. 12 be made available by the appropriate state officials for ex- penditure through allotment, transfer within and among sub- sidiary accounts, advances from the state treasury in accord- ance with the provisions of sections twenty-four, twenty-five and twenty-six of chapter twenty-nine, or for disbursement on certification to the state comptroller in accordance with the provisions of section eighteen of said chapter twenty- nine, as may from time to time he directed by the trustees or an officer of the university designated by the trustees.'' (Em- phasis supplied.) G. L. c. 75, § 11 provides, in pertinent part: "The trustees shall administer property held in accordance with special trusts, and shall also administer grants or devises of land and gifts or bequests of personal property made to the commonwealth for the use of the university, and execute said trusts, investing the proceeds thereof in notes or bonds se- cured by sufficient mortgages or other securities. The trus- tees shall have the authority to assent to federal laws de- signed to benefit the university and to enter into agreements or contracts with the federal government or agencies thereof, as well as into agreements or contracts with agencies of other governments, other colleges and universities, foundations, corporations, interstate compact agencies and individuals where such agreements or contracts, in the Judgment of the trustees, will promote the objectives of the university." (Em- phasis supplied.) And, G. L. c. 75, § 12 provides, in pertinent part: "The trustees shall, on behalf of the commonwealth, man- age and administer the university and all property, real and personal, belonging to the commonwealth and occupied or used by the university, . . ."" The language of the foregoing provisions specifically and G. L. c. 75 as a whole make it clear that the Legislature intended that the authority of the Board of Trustees be autonomous with respect to the management and administration of the affairs of the University, just as the authority of governing boards of private institutions of higher learning is autono- mous with respect to the management and administration of their affairs. In freeing the Board of Trustees from the control or supervision of any state board, bureau, department or commission, the Legislature, in my opinion, necessarily understood that the management and control of University property was fundamental to the function of administration and that instrumental to that function is the authority to enter into a lease, a power customarily and traditionally exercised by governing boards of institutions of higher learning. With respect to the principle of implied repeal then, the question is whether G. L. c. 8, § lOA is so in conflict with G. L. c. 75 as a whole and with section I of c. 75 in particular that both cannot stand. "The P.O. 12 43 test of the applicability of the principle of implied repeal is whether the prior statute is so repugnant to and inconsistent with the later enactment covering the subject matter that both cannot stand/' Doherty v. Commissioner of Administration. 349 Mass. 687, 690. Thus. " 'the enactment of a statute which seems to have been intended to cover the whole subject to which it relates, impliedly repeals all existing statutes touching the subject . . ." " Sullivan v. Worcester, 346 Mass. 570, 573. Based upon the language of G. L. c. 8, § lOA and G. L. c. 75. it is my opinion that, insofar as G. L. c. 8, § lOA may have applied, at one time, to the Board of Trustees, it has since been impliedly repealed with re- spect to that body. This conclusion is buttressed by reference to the legislative history of G. L. c. 75. A perusal of 1962 House Document No. 3350, Report of the Special Commission on Budgetary Powers of the University of Massachusetts and Related Matters, which led to the enactment of Chapter 648 of the Acts of 1962, reveals the Legislature's deep concern that the Board of Trustees not be subjected to the fiscal administrative and management controls exercised by various state agencies, with cer- tain limited exceptions, lest they interfere with the management of the University. In deciding whether the use of appropriated funds should be controlled in detail by the executive agencies of the state or whether the specific use of funds should be left to the discretion of the educators and administrators responsible for the University, the Commission arrived at the conclusion that the University (and Lowell Technological Institute) should operate under four essential controls and that "[bjeyond these reasonable limits, further restrictions on the authority of the trustees can lead to impairment of their ability to manage the institution as the public requires." 1962 House Document No. 3350, at 9. Those four controls left the specific use of public funds to the discretion of the trustees of the University. While reserving the decisions to be made with respect to the use of said funds to the trustees, the Commission did urge, in limitation III, complete management and financial reporting to the control agen- cies of the state to promote public understanding of the manner in which the taxpayers' dollars were being spent and, in limitation IV, a post- audit of all accounts to account for the expenditure of public funds. Thus, while the level of support which the University is to receive should be initially determined by the Legislature, and the specific uses to which the funds, once appropriated, shall be put, are to be determined by the Board of Trustees — the financial reporting and post-auditing of accounts provide the Legislature with "a full picture of University oper- ations for the year." 1962 House Document No. 3350. at 11. To those who suggested that the University need be autonomous only in the scholarly phases of its operation, the Commission responded that, "[VJirtually every activity on a college campus has academic implications. Imprudent intervention of state agen- cies in non-academic areas can quickly penetrate to educa- tional policy." 1962 House Document No. 3350, at II. Accordingly, it is my opinion that it was the intention of the Legisla- ture to give the Board of Trustees complete discretion in the manage- 44 PD. 12 ment and administration of the University in both academic and non- academic areas, and that the specific uses to which funds once appro- priated are put to be left to the sound discretion of the trustees and educators responsible for the management of the University. This over- riding legislative intent embraces, in my opinion, the fiscal controls con- tained in G. L. c. 8, § lOA. Turning briefly to c. 719 of the Acts of 1971, the Appropriation Act for fiscal 1971, section 13 provides: "'Notwithstanding the provisions of section ten A of chap- ter eight of the General Laws, no lease negotiated as pro- vided therein nor any agreement providing for a tenancy at will or other space rental shall he signed by the executive or administrative head of a state department, commission or hoard or approved by the state superintendent of buildings and by the governor and council and by the commissioner of administration unless it is in accordance with schedules filed by the budget director with the house and senate committees on ways and means prior to the passage of this act; provided, that renewals of leases, tenancies at will and other space ren- tals may be continued at existing rates pending appropriation if the general court has not provided otherwise; and, further provided, that the commissioner of administration, in order to meet unforeseen circumstances may approve, on a tenancy at will basis, a change in location, new or additional space, or an increase in rate, if funds are available therefor within the ap- propriation account from which the costs of such space ren- tals are to be paid; and, further provided, that every such proposed change is filed by the budget director with the house and senate committees on ways and means prior to the final authorization of any such agreement." (Emphasis sup- plied.) In my opinion, this statutory provision does not limit the autonomous authority of the Board of Trustees to enter into a lease for a term of years since it is clear that this provision is premised upon the mechanics of G. L. c. 8, § lOA and that it was intended to apply only to those leases or rental agreements subject to the terms of that section. Since it is my conclusion that § lOA has been impliedly repealed with respect to the Trustees (if indeed, it ever applied), it follows a fortiori that the Legislature did not intend that § 13 apply to the Trustees. Nor is my opinion affected by the provisions of § 20 of c. 719 of the Acts of 1971 which in substance states that certain sections shall not apply to expen- ditures from appropriations made for the University, among other named entities, and which does not refer to § 13. Since § 13 does not apply for the reasons hereinbefore stated, the mere omission of a refer- ence to the section in § 20 is neither determinative nor persuasive. In conclusion, with respect to Question No. 1, it is my opinion that the Trustees have the autonomous authority under G. L. c. 75 to enter into P.D. 12 45 a lease for a term of years for new office space with rental to be paid from State appropriations. My opinion is the same for the Appropriation Act for 1972. c. 514 of the Acts of 1972. since the terms therein are iden- tical in substance to §§ 13 and 20 of the 1971 Appropriations Act. With respect to Question No. 2, I arrive at the same conclusion. If a department, commission or board has authority, under a special statute or otherwise, to bind the Commonwealth to an oral or other agreement establishing a tenancy at will. G. L. c. 8. § lOA does not apply. Opinion of Attorney General, March 25, 1953, at 40, 41. In my opinion such au- thority is necessarily and logically implied under the terms and scope of G. L. c. 75, as explained supra. Therefore, the Comptroller's Division cannot refuse to process properly completed purchase order and stand- ard invoice forms for the payment of rent for tenancies at will entered into by the University on the grounds of either G. L. c. 8, § lOA or c. 719 of the Acts of 1971. Very truly yours, ROBERT H. QUINN Attorney General