Number 2 July 8, 1975

Number 2 July 8, 1975 John R. Buckley Secretary ofAdministration and Finance State House Boston, Massachusetts 02133 Dear Secretary Buckley: By letter of May 23, 1975, you have requested an opinion on the following questions: (1) Whether lack of funds, as demonstrated by the Governor's FY 1976 budget recommendations to the General Court, is sufficient basis for termination of permanent civil service employees in light of M.G.L. Chapter 31, Section 43 (a) or (2) Whether there would be sufficient basis for termination of permanent civil service employees because of "lack of money" only after the Legislature has acted on the Governor's proposed budget in light of M.G.L. Chapter 31, Section 43(a) (emphasis added). (3) Given Federal law, specifically the 14th Amendment and Federal EEOC requirements, as well as the Governor's Executive Order No. 1 16, is Section 46G of M.G.L. Chapter 31 constitutional given the fact that there will be a disproportionate percentage of minorities and/or women representing the most recent groups to enter state service who ultimately will be laid off (Footnote omitted). I shall address these questions in order. L Lack of Funds or Money I shall treat the first and second questions together (as suggested by the use of the conjunction "or" at the end of the first question). They form the following issue: May permanent civil service employees be terminated for "lack of money" solely on the basis of the Governor's FY 1976 budget recommendations or, rather, must such terminations await legis- lative action on the Governor's proposed budget — presumably action by the passage of an appropriation act? It is my opinion that the Governor's FY 1976 Budget recommendations do not constitute "lack of money" as that phrase is used in G.L. c.31, §43(a). Permanent civil service Employees may not be so terminated, in accordance with this statute, until and unless the Legislature has failed or refused to provide the necessary funds for such positions.* The second sentence of Mass. G.L. c. 31, §43(a), provides that a perma- nent civil service employee's office or position may not be terminated "except for just cause and for reasons specifically given him in writing". A lack of work or "lack of money" is cited in the next sentence of that section as one basis for establishing the requisite "just cause". In responding to your questions, I will assume, without deciding the point, •This conclusion is reached without reference to any specific budget statute, either enacted or now pending before the Legislature. 70 P.D. 12 that the anticipated terminations would be within the scope of Mass. G.L. c. 31, § 43(a). The appropriation of funds is an exclusively legislative function, to be exercised only by the General Court. Mass. Const., Part II, c.l, §1, art. 4; Mass. Const. Amendments, art. 63, §3; Baker v. Commonwealth, 312 Mass. 490, 493, 45 N.E. 2d 470, 472 (1942); Opinion of the Justices, 302 Mass. 605, 612-13, 19 N.E. 2d 807, 813 (1939). The Governor has the power and duty to recommend that appropriations be made by the General Court. Mass. Const., Amendments, art. 63, §§2 and 3. The Governor cannot determine the actual level of appropriations, since that is a legislative function. There is no "lack of money" merely because the Governor, in his FY 1976 budget recommendations, may propose reduced levels of expenditure. Whether or not there is a "lack of money" must be determined by reference to the actual levels of appropriation by the General Court. Therefore, I answer your first and second questions "No" and "Yes" respectively. II. The Constitutionality of G.L. c.31,§46G Section 46G of M. G.L. c.31 provides that: If the separation from service of persons in the official or labor service results from lack of work or lack of money or from abolition of positions, they shall be separated from service by class and grade, except as hereinafter provided, and be reinstated therein in the same position or in a similar position as that formerly held by them, according to their seniority in the service, so that the senior officers or employees in length of service shall be retained the longest and reinstated first and before any certifi- cation of new names. Before any action is taken to effect such a separation from service of any officer or employee, seven days' written notice thereof shall be given to him by the appointing authority. This Section pertains only to one class of state employees — those classi- fied in civil service. The layoff and recall procedure for classified civil servants is governed by an employee's inverse seniority on the job so that the last employee hired would be the first employee laid off Section 46G does not apply to tenured non-civil service employees, non-tenured employees appointed on a provisional, probationary or temporary status, or persons employed in positions not subject to G.L. c. 31. Layoffs for non-tenured or non-civil service employees are not covered by the seniority limitations of G.L. c. 31, § 46G. Thus, this section of the opinion concerns itself only with the state employees classified in civil service. We turn now to those instances where a layoff might affect classified civil service employees. At the outset we make explicit three crucial points. First, we recognize that there has been no finding that the Commonwealth or Civil Service has engaged in past discrimination in hiring. Second, this opinion assumes the absence of such discrimination. Finally, implicit in your ques- tion, is the assumption that layoffs of state employees would have an adverse impact on minorities and women since those persons would have dispropor- P.D. 12 ' 71 tionately low seniority among classified civil service state employees. The constitutionality of the traditional seniority system, the "last hired- first fired" system as a standard of layoffs and recalls with disproportionate impact on minorities and women, has not been conclusively resolved. Although it may do so in the next year, the Supreme Court has not reached this issue in any decision. The lower federal courts are divided as to whether layoffs consistent with "last hired, first fired" would unlawfully perpetuate the effects of past discrimination and thereby violate Title VII, 42 U.S.C. Sec. 2000e et seq. The courts which have sustained challenges to the seniority system have done so upon a finding that there was past discrimination which was perpetuated by the seniority system. Watkins v. United Steel Workers, 369 F. Supp. 220 (E.D. La. 1974), appeal docketed no. 74-2604, 5th Cir., June 17, 1974. Loy v. City of Cleveland, 8 FEP Cases 614, dismissed as moot at 8 PEP Cases 617 (N.D. Ohio 1974). Other federal courts have found that layoffs conducted in reverse order of seniority are racially neutral and do not perpetuate the effects of past discrimination. Waters v. Wisconsin Steelwork- ers of International Harvester Co., 502 F. 2d 1309 (7th Cir. \91A) petitionfor cert, filed, 43 U.S.L.W. 3476 (U.S. Feb. 24, 1975) (No. 74-1064); Jersey Central Power and Light Co. v. Local Unions 327 et al. of the International Brotherhood of Electrical Workers, 508 F.2d 687, 9 FEP Cases 1 17 (3rd Cir. 1975). State courts have not addressed the issue of seniority systems as they perpetuate past discrimination. The split of authority among the federal courts and the absence of author- ity in the state courts leave unsettled the precise issue raised by your question. In these circumstances, certain axioms of constitutional law must be our guide. First, a statute enjoys a presumption of constitutionality. See, e.g., McCulloch V. Maryland, 17 U.S. (4 Wheaton) 316, 421 (1819); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 (Brandeis, J., concurring); James v. Strange, 407 U.S. 128, 133 (1972); Pinnick v. Cleary, 361 Mass. 1 (1971); 42 A.L.R. 3d 194, 208, 218 (cases collected). Second, a statute must be interpreted to avoid a conclusion of unconstitu- tionality when the law supports such a conclusion. See, e.g., Crowell v. Benson, 285 U.S. 22, dl {\9'}>2)\ Ashwander \ . Tennessee Valley Authority, 297 U.S. 288, 348-349 & n.8 (cases collected) (Brandeis, J., concurring); Com- monwealth V. Lamb, 1974 Mass. Adv. Sh. 713, 717-718; Board ofAppeals of Hanover v. Housing Appeals Committee in the Department of Community Affairs, 1973 Mass. Adv. Sh. 491, 512; Chipman v. Massachusetts Bay Trans- portation Authority, 1974 Mass. Adv. Sh. 1447, 1453. Finally, under our explicit assumption of no prior discriminatory hiring of civil service state employees, one assailing the statute on constitutional grounds bears the burden of proving the absence of any conceivable grounds upon which the statute could be supported. See, e.g.. Commonwealth v. Henry's Drywall Co., Inc., 1974 Mass. Adv. Sh. 2377, 2380; Colella v. State Racing Commn., 1971 Mass. Adv. Sh. 1317; Anton's of Reading, Inc. v. Reading, 346 Mass. 575, 576 (1974); McQuade v. New York Cent. R.R., 320 72 P.D. 12 Mass. 35 (1946); Merit Oil Co. v. Director ofthe Division on the Necessaries of Life, 319 Mass. 301, 306 (1946). In light of these principles, I conclude that G.L. c. 31, § 46G, is constitu- tional and that its operation would not conflict with federal EEOC require- ments or Executive Order No. 1 16. 1 answer your third question "Yes". Very truly yours FRANCIS X. BELLOTTI Attorney General