Number 13 July 28, 1975

Number 13 July 28, 1975 The Honorable Paul Guzzi Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Guzzi: You have requested my opinion concerning the relationship between the Director of Campaign and Political Finance and the Commission of Cam- paign and Political Finance. As Secretary of the Commonwealth you serve as Chairman of the aforementioned Commission, and, therefore, your request is directly related to the performance of your duties. Cf.2 Op. Atty. Gen. 100 (1899). Specifically you have asked: "What responsibilities and powers does the Commission have, short of removal of the Director of Campaign and Political Finance, to require reports from the Director and to monitor, investigate and otherwise review and assess performance by the Director of functions assigned to the Director under Chapter 55 of the General Laws?" After examination of the statutes and pertinent cases, I conclude that the Commission has the power to review and assess the performance of the Director of Campaign and Political Finance, and may request information from the Director for the purpose of carrying out these responsibilities. However, the Commission does not have the power to supervise his activities. The starting point for any inquiry into the relationship between the Direc- tor and the Commission is Chapter 55 of the Massachusetts General Laws. Chapter 1 173 of the Acts of 1973, which rewrote Chapter 55, became effec- tive on January 1, 1974. Significantly, it added Section 2A which created the Office of Campaign and Political Finance. The Office was to be headed by a Director, chosen by the Commission. Earlier this year, the Governor signed into law Chapter 151 of the Acts of 1975. This act sought to clarify and resolve certain conflicts that existed within the election laws of this Com- monwealth. Both the Commission and the Director retained substantially the same powers they had been granted under Chapter 1 173. P.D. 12 85 The law now provides in pertinent part: The state chairman of each of the two leading poHtical parties, the state secretary, and a dean of a law school located in the Commonwealth, to be appointed by the governor as provided hereinafter, shall serve as a commission for the purpose of select- ing the director of campaign and political finance . . . The state secretary shall act as chairman of said commission. Selection of the director, who shall be a resident of the Commonwealth, shall be by unanimous vote of the members of the commission . . . Removal of the director shall be at the discre- tion of the commission, and shall not be reviewable. General Laws Chapter 55, Section 3. The Commission, of which you are chairman, is wholly a creature of statute. It may exercise not only the powers conferred upon it by express legislative enactment, but also those necessarily implied from its express responsibilities. See City of Cambridge v. Commissioner of Public Welfare, 357 Mass. 183 (1970). The Supreme Court of the United States has made it clear that powers are necessarily implied only where no contrary legislative intent is possible and not merely where the power would be convenient. Detroit Citizens' Street Railway Company v. Detroit Railway, 171 U.S. 48 (1897). While it is not the function of the Department of the Attorney General to provide by interpretation for possible legislative omissions, Opi- nion Attorney General October 10, 1966, p. 95, it is proper for me to determine what powers, if any, the Commission possesses. The statute clearly provides that the purpose of the Commission is the selection of a qualified Director. Equally clear is the power of the Commis- sion to remove the Director; such removal is discretionary and ostensibly non-reviewable. Nevertheless, due process requirements indicate that the Commission should not take purely arbitrary action in this area. See Lucia v. Duggan, 303 F.Supp.ll2 (D. Mass. 1969). It is, therefore, incumbent upon you to obtain solid information as a basis for your action or inaction. Thus, the necessary implication of Section 3 of Chapter 55 is that the Commission has the right to review and assess the performance of the Director. This right does not include power to supervise the Director's actions. Chapter 55 of the General Laws as most recently amended by Chapter 151 of the Acts of 1975 does not explicitly authorize the Commission to require reports from the independent Director; however, it does provide a source for the type of information the Commission needs to intelligently perform its function. Section 3 now provides, inter alia. The director shall . . . respond with reasonable promptness to requests for information, interpretations and advice presented by candidates, state committees, political committees and members of the public. This provision is extremely broad and clearly encompasses the Commis- sion. Therefore, the Commission may present requests for information to the Director and he is directed by statute to respond with reasonable promptness to those requests. In responding, however, the Director may not divulge privileged information nor material from hearings conducted pursuant to 86 P.D. 12 Section 3, which is subject to a rule of grand jury secrecy. I wish to stress the fact that the Director has independent status. Chapter 55 does not contemplate interference with his functions either by the Com- mission or any other body poUtic. Very truly yours, FRANCIS X. BELLOTTI Attorney General