Number 1. July 2, 1974

Number 1. July 2, 1974 Honorable Gregory R. Anrig Commissioner of Education 182 Tremont Street Boston, Massachusetts 02111 Dear Commissioner Anrig: You have asked for my opinion concerning the power of the Mas- sachusetts Board of Education to issue regulations under a statute con- cerning public education when that law does not specifically authorize the Board to issue regulations. In particular you have focused on the question of issuing regulations or guidelines under St. 1971, c. 622, G. L. c. 76, § 5 and § 16, which reads as follows: § 5. Place of Attendance; discrimination ''Every child shall have a right to attend the public schools of the town where he actually resides, subject to the following section. No child shall be excluded from or discrminated against in admission to a public school of any town, or in ob- taining the advantages, privileges and courses of study of such public school on account of race, color, sex, religion or national origin." and § 16. Children Excluded from School; remedies "The parent, guardian or custodian of a child refused ad- mission to or excluded from the public schools or from the advantages, privileges and courses of study of such public schools shall on application be furnished by the school com- mittee with a written statement of the reasons therefor, and thereafter, if the refusal to admit or exclusion was unlawful, such child may recover from the town in tort, and may ex- amine any member of the committee or any other officer of the town, upon interrogatories." In deciding whether regulations may be promulgated under the anti- discrimination law. G. L. c. 76, §§ 5 and 16. it must be noted that neither section explicitly authorizes the Board to issue regulations nor P.D. 12 41 do they explicitly grant the Board the power to enforce the sections. Under these circumstances, then, may the Board issue regulations pro- viding tor the implementation of Chapter 622? The answer to this question preliminarily depends on an analysis of the scope of the Board's powers and duties under the law. Under G. L. c. 15, § IG, the Board is empowered to "support, serve and plan general education in the public schools" (par. 1); to provide "centralized, state wide, long-range planning" (par. 4) and a "center for the development, evaluation, and adaptation of educational innovations" in public schools (par. 5); and to "establish minimum educational standards" for required public school courses (par. 14). Under G. L. c. 15, § IF, the Board is empowered to appoint the Commissioner of Education, who is the "chief state school officer for elementary and secondary education", and to establish divisions in the areas of curriculum and instruction, ad- ministration and personnel, research and development, school facilities, and others. In addition to the assignment of functions and duties to the Board out- lined above, the Board is authorized to collect and maintain information relevant to its work. G. L. c. 15, § IG. The many other delegations of power to the Board need not be discussed here, other than to point to two highly pertinent provisions. General Laws, c. 15, § IG specifically charges the Board with the duty of seeing that school committees com- ply with the laws concerning public schools: "The board shall see to it that all school committees com- ply with all laws relating to the operation of the public schools and in the event of noncompliance the commissioner of education shall refer all such cases to the attorney general of the commonwealth for appropriate action to obtain com- pliance." (Par. 20). and: "The board may withhold state and federal funds from school committees which fail to comply with the provisions of law relative to the operation of the public schools or any regu- lation of said board authorized in this section." (Par. 18). In light of the functions, powers and duties of the Board as set forth above, may the Board issue regulations providing for the implementation of Chapter 622? It has long been the law in this Commonwealth that: "Where a grant of power is expressly conferred by statute upon an administrative officer or board or where a specific duty is imposed upon them, they in the absence of some statutory limitation have authority to employ all ordinary means reasonably necessary for the full exercise of the power and for the faithful performance of the duty. Fliict v. McCahe, 299 Mass. 173. George A. Fuller Co. v. Commonwealth, 303 Mass. 216. Attorney General v. Trustees of Boston Elevated Railway, 319 Mass. 642, 655. 42 P.D. 12 Scannell v. State Ballot Law Commission, 324 Mass. 494. But an administrative board or officer has no authority to promulgate rules and regulations which are in conflict with the statutes or exceed the authority conferred by the statutes by which such board or office was created. . . ."' Bureau of Old Age Assistance of Na tick v. Commissioner of Public Welfare, 326 Mass. 121, 124 (1950). Even prior to the adoption of the State Administrative Procedure Act, G. L. c. 30A, it was recognized that ''The well established general rule is that when a general power is given or duty enjoined, every particular power, necessary for the exercise of the one, or the performance of the other, is given by implication." Fluet v. McCabe, 299 Mass. 173, 178 (1938). Thus, in Lynch v. Commissioner of Education, 317 Mass. 73 (1944), the Court upheld a Department of Education rule charging tuition at state teachers colleges although there was no statute specifically au- thorizing the charging of tuition. The Lynch court noted that: "it is well established that when a general power is given all authority necessarily incidental to carry out the power is given by implication." 317 Mass. at 79. The court found that the Department was authorized to charge tuition by a statutory scheme giving it "general management" of state teachers colleges. The breadth of incidental administrative authority to perform a statu- tory duty is indicated by language in later cases. In Scannell v. State Ballot Law Commission, 324 Mass. 494, 501 (1949), the Court stated: "A statutory grant of power may be general or particular. An express grant carries with it by implication all incidental authority required for the full and efficient exercise of the power conferred. The Legislature need not enumerate nor specify, definitely and precisely, each and every ancillary act that may be involved in the discharge of an official duty. It is enough for the Legislature to impose the duty to be per- formed within a prescribed field for a designated end, leaving to the board's discretion the selection of the appropriate methods and means and the other administrative details to be employed in accomplishing the statutory purpose." Thus, the law of this Commonwealth recognizes that "[w]hen a general power is given, all authority necessary to carry it out is inferred by im- plication." Multi-Line Insurance Rating Bureau v. Commissioner of Insurance, 357 Mass. 19, 22 (1970). In addition to this rationale for incidental administrative authority, which would, of course, include power to promulgate regulations, the law has pointed to another rationale. Administrative regulations provide an interpretation of the meaning of statutes which is given significance by the courts. As was said in Clearx v. Cardullo's, Inc., 347 Mass. 337, 343-44(1964): P.D. 12 43 "The duty of statutory interpretation is for the courts. Nevertheless, particularly under an ambiguous statute . . . the details of legislative policy, not spelt out in the statute, may appropriately be determined, at least in the first in- stance, by an agency charged with administration of the stat- ute." and "The best proof, of course, of a consistent administrative interpretation is the administrative body's regulations, or its published written decisions or interpretations." See also. Board of Assessors of Holyoke v. State Tax Commission. 355 Mass. 223, 243-44(1969). Both of these rationales have been used to justify administrative au- thority in the Commissioner and the Board of Education where the stat- utes did not specifically provide that authority. In School Committee of \ew Bedford v. Commissioner of Education, 349 Mass. 410 (1965), the school committee of New Bedford sought a declaratory judgment that it was not required to take a racial census as the Commissioner directed it to do. The Court upheld the Commissioner's exercise of administrative authority, saying, at 349 Mass. at 414, that: "The enumeration and grant of the commissioner's powers and duties in G. L. c. 69 by implication give to him a substan- tial range of incidental authority to do in an ordinary and reasonable manner those things required for the efficient ex- ercise of the powers and the satisfactory performance of the duties. See Lynch v. Commissioner of Education, 317 Mass. 73, 79-80; Scanned v. State Ballot Law Commission, 324 Mass. 494, 501-502; Bureau of Old Age Assistance v. Commissioner of Public Welfare, 326 Mass. 121, 124." In School Committee of City of Springjleld v. Board of Education, Adv. Sh. 1543, 1564 (1972), the Court suggested to the Board that it promulgate regulations under the Racial Imbalance Law, which statute does not expressly provide for regulations, as an aid in interpretation: "While the board must make its own independent determi- nation whether a plan satisfied c. 71, § 37D, we suggest for the guidance of school committees that the board set forth be- forehand how it interprets, and intends to apply, the require- ments of the statute. The means of accomplishing this object are found in G. L. c. 30A, §§ 1(2), (5), 2, 3, which establish rule-making procedures applicable to all but a few of the ad- ministrative agencies of State government. See also G. L. c. 30A, § 8 (advisory rulings). Although the usefulness of regu- lations should not be overrated, their importance is never greater than where, as here, an agency must interpret a legis- lative policy which is only broadly set out in the governing statute. See Cleary v. Cardullo's, Inc., 347 Mass. 337, 343-344. See also Environmental Defense Fund Inc. v. Ruckelshaus, 439 F.2d 584, 596-598 (D.C. Cir.)." 44 P.D. 12 The legislative policy against discrimination in public schools is broadly set forth in Chapter 622 and it is reasonable to think that an ad- ministrative interpretation of that policy might be useful. Further, is- suance of regulations or recommendations under Chapter 622 would be an ordinary and reasonable manner of exercising the Board's duties under G. L. c. 15, § IG, of seeing that all school committees comply with laws pertaining to the operation of public schools. Of course, such regulations or recommendations would be subject to the promulgation requirements of G. L. c. 30A. This opinion does not pass upon the validity of any particular regula- tion the Board may wish to draw up, for ". . . it is not the function of this office to draft and pass upon regulations of this kind in advance of actual rights in- volved thereunder." 1962 Op. Atty. Gen. 115, 116. Nor does this opinion purport to pass upon the power of the Board to promulgate regulations under other statutes. This opinion does set forth some criteria found in the law governing this subject. The mere fact that a statute does not expressly authorize issuance of regulations does not necessarily bar such regulations. Very truly yours, ROBERT H. QUINN Attorney General