Number 6 August 9, 1973

Number 6 August 9, 1973 Honorable William F. McRell Acting Director of Civil Service 294 Washington Street Boston, Massachusetts 02108 Dear Mr. McRell; I have your letter dated July 1 1 , 1973, calling my attention to St. 1973, c. 320, and requesting my opinion on the following questions: "1. On what date does the act take effect? "2. Which of the following would be a correct interpretation and im- plementation by the Division of Civil Service? a) Any examination administered prior to that date is subject to the rights of appeal in existence prior to the effective date of ch. 320, and the process of review and appeal is to be carried through to its completion regardless of date. b) Only examinations marked prior to the effective date are sub- ject to the right of appeal, carried to completion as in (a) above. c) Only if applicants have been informed of their marks prior to the effective date do they have the right of appeal as in (a) above. d) Only if a request for review has been filed, in accordance with the present provisions of ch. 31, prior to effective date, may a person exercise the present right of appeal. e) All review and appeal rights which are abolished by ch. 320 are terminated as of the effective date, regardless of the stage they reached in the review and appeal process. 56 P.D. 12 "3. If none of the above is a correct construction, what construction shall be placed upon this act?" St. 1973, c. 320 amends various sections of G. L. c. 31, the Civil Ser- vice Law, the principal change being an elimination of the right of an applicant to request a review of the markings of his examination paper. General Laws, c. 31, §§ 2(b), 2A(7) and 12A, in relevant part, provided as follows prior to the enactment of St. 1973, c. 320: "§ 2. . . . the [civil service] commission shall ***** (b) Hear and decide all appeals from any decision or action of, or failure to act by, the director, upon application of a person ag- grieved thereby ..." "§ 2A. . . . the director [of civil service] shall (/) Decide in the first instance all reviews of markings on ex- aminations papers requested by applicants." "§ 12A. Not later than seventeen days after the date of mailing of the notice of the director to the applicant of the results of his examination or notice that he did not meet the requirements for admission to the examination, the applicant may file with the di- rector a request for a review of the markings of his examination paper, ... a request for a review of his marking of training and experience, or a request for a review of the finding by the director that he did not meet the requirements for admission to the exami- nation established by the director . . . ***** "Within six weeks after acceptance of a request for a review of markings on any examination paper, the director shall cause such paper and the markings thereon to be reviewed, and shall transmit a copy of his decision to the applicant . . . "Not later than seventeen days after the date of mailing of the notice of the decision of the director, the applicant may appeal to the commission by filing a petition in a form approved by it and containing a brief statement of the facts as presented to the direc- tor for his review. ***** "After filing of such an appeal, the commission shall hold a hearing, render a decision and transmit a copy of such decision to the appellant and to the director." (Emphasis supplied.) Sections 1, 2 and 8 of St. 1973, c. 320 amend these sections of G. L. c. 31, in relevant part, as follows: 2{b) "Hear and decide appeals from decisions or actions of, or fail- ures to act by, the director, except in matters relating to findings of the director relative to the grading of written, oral, or practical tests in a competitive examination, upon application of a person aggrieved thereby ..." P.D. 12 57 2A(/) "Decide in the first instance all reviews requested by applic- ants of markings of training and experience or findings that re- quirements for admission to examinations were not met; pro- vided, however, that in the event of an error in the markings of examination papers the director shall have full authority to make any corrections he may deem necessary." 12A "Not later than seventeen days after the mailing of the notice of the director to the applicant of the results of his examination or notice that he did not meet the requirements for admission to the examination, the applicant may file with the director a request for a review of the marking of his training and experience, a request for a review of the finding by the director that he did not meet the requirements for admission to the examination established by the director or a request that the computations of his general average mark be checked for error. Within six weeks after acceptance of the request, the director shall cause such marking or such finding to be reviewed, and shall transmit a copy of his decision to the applicant. Not later than seventeen days after the date of mailing of the notice of the decision of the director, the applicant may ap- peal to the commission by filing a petition in a form approved by it and containing a brief statement of the facts as presented to the director for his review. After the filing of such an appeal, the commission shall hold a hearing, render a decision and transmit a copy of such decision to the appellant and to the director ..." There is no Emergency Preamble in St. 1973, c. 320, nor is there a "savings clause" which excepts from the operation of c. 320 examina- tions administered prior to the effective date of this statute. St. 1973, c. 320 is an Act subject to Referendum and, therefore, under the ConsUtution of the Commonwealth, becomes effective 90 days after approval of the Act. Const. Amend. Art. 48, Ft. \\ E. B. Horn v. Assessors of Boston, 321 Mass. 579, 580; Greenaway's Case, 319 Mass. 121. The Act was approved by the Governor on May 29, 1973, and it therefore becomes effective on August 27, 1973. The right to request review of the markings of an examination paper, granted by G. L. c. 3 1 , § 12A prior to the enactment of St. 1973, c. 320, is a right created by statute and is purely procedural in nature. Proce- dure and remedies may be changed by the Legislature, and there is no violation of the Constitution if it does so. Greenaway's Case. 319 Mass. 121, 123; Devine's Case, 236 Mass. 588, 593. "Where situations relate merely to remedy or procedure and do not affect substantive rights, they have generally been held to operate retroactively." Greenaway's Case, supra, at 123. In other words, statutes involving changes in procedure apply to pending cases equally with those arising after their enactment, unless a contrary purpose is expressed or fairly inferable from the words used. Lindherg v. State Tax Commission, 335 Mass. 141, 143; Hollingsworth & Vose Co. v. Recorder of Land Court, Idl Mass. 45, 58 P.D. 12 47. However, a statute which changes procedure will not invalidate a step in procedure lawful when taken, E.B. Horn Co. v. Assessors of Boston, 321 Mass. 579, 584, as where a request for review of markings of an examination has been filed. Applying the foregoing rules to your inquiries, your questions may be answered as follows: 1. The effective date of the Act is August 27, 1973. 2.-3. Applicants have no right to file a request for a review of the mark- ings of their examination papers after August 27, 1973, with respect to examinations administered prior to that date, whether or not marked prior to that date, and whether or not they have been informed of their marks prior thereto. However, if an applicant files or has filed a request for a review of the markings of his examination paper prior to August 27, 1973, that appeal is valid and must be heard and determined in ac- cordance with the provisions of G.L. c. 31, § 12A and §§ 2 and 2A, as they existed prior to the enactment of St. 1973, c. 320. Very truly yours, ROBERT H. QUINN Attorney General