Number 5. July 13, 1967

Number 5. July 13, 1967. Dr. Richard M. Millard, Chancellor, The Board of Higher Education Dear Doctor Millard: — You have requested my opinion as to "wheth- er the 'representative' members of the Board of Higher Education, i.e., those elected by the Boards of Trustees of the several segments, . . . are . . . enti- tled to designate representatives [alternates] to serve at meetings of the Board in their unavoidable absence." Subject to the limitations set forth be- low, it is my opinion that such designations may be made. Section I A of c. 15 of the General Laws establishes a Board of Higher Education consisting of eleven members, seven of whom are appointed by the Governor, the other four members, known as the representative mem- bers being: "... a member of the board of trustees of the University of Mas- sachusetts selected by a majority vote of all the members of said board, a member of the board of trustees of state colleges selected by a majority vote of all the members of said board, a member of the board of regional community colleges selected by a majority 'a state may, however, regulate and control the passage of intoxicants through her territory in the in- terest of preventing their unlawful diversion into the internal commerce of the state. Ibid. P.D. 12 41 vote of all its members, and a member of the board of trustees of Lowell Technological Institute or of the board of trustees for the Southeastern Massachusetts Technological Institute selected al- ternately by majority vote of all the members of said respective board, each of said four members to serve for a term of one year. Authority of a representative member to name an alternate must be found in G. L. c. 30, § 6A, which provides in pertinent part: "If any member of a permanent state board or commission . . . who serves as such by virtue of holding any other office or posi- tion is unable by reason of absence or disability to perform his duties as such member, he may, by a writing filed in the office of such board or commission, designate an officer or employee in his department who shall, without additional compensation therefor, perform such duties in case of and during such absence or disabil- ity, but a person so designated shall have no authority to make any appointments or removals. Any such designation may in like manner be revoked at any time." (Emphasis supplied.) Since the alternate must be an officer or employee in [the member's] de- partment, a reasonable construction of section 6A imports a requirement that the member must hold an office or position in the same department. "Department" is used in the technical sense of a "department of the Com- monwealth." G. L. c. 30, § I . The Department of Education is, of course, one of these departments. General Laws c. 15, § 1; and G. L. c. 15, § 19 provides that the boards of trustees of the University of Massachusetts, Lowell Technological Institute, and Southeastern Massachusetts Technolog- ical Institute "shall serve in the department [of education]." Since the "representative" members of the Board of Higher Education are selected by their fellow members of the respective constituent boards, I regard the "representative" members as serving on the Board of Higher Ed- ucation "by virtue of holding" an office or position on the constituent board, within the meaning of G. L. c. 30, § 6A, quoted above. The primary qualifi- cation of a "representative" member is that he be a member of one of the constituent boards. That he must also be selected by a majority of his fellow members of his constituent board is not such a further warrant of title to membership on the Board of Higher Education as to prevent his member- ship on the constituent board from being the primary and sufficient source of his eligibility. His selection by his fellow members should be considered to be simply a procedure to implement his original and basic authority to serve. The remaining question involves the selection of the designee or alternate. Under § 6A, the designee must be an officer or employee in the "depart- ment" of the member of the Board of Higher Education. It is my opinion that any officer or employee of the member's board would be eligible to serve as an alternate since such officer or employee would clearly be "in [the member's] department" within the meaning of § 6A. Whether or not any other officers or employees in the Department of Education could prop- erly be designated to serve does not appear to be presented by your inquiry. It should be pointed out that the word "absence" as used in § 6A is not. 42 P.D. 12 as you suggest, limited to ''unavoidable" absence. It contemplates inability to attend meetings for any reason whatsoever. As has been stated by a prior Attorney General: "To give effect to [the] legislative intent, the word 'absence' as used in said section 6A is not to be construed narrowly, but in a broad general sense so as to comprehend an 'absence' from a meeting however occasioned." Report of the Attorney General, December I, 1942 to June 30, 1944, p. 114, 116. Finally, I should call to your attention the following portion of i^ I A of c. 15: "If any member [of the Board of Higher Education] is absent from four regularly scheduled meetings, exclusive of July and Au- gust, in any calendar year, his office as a member of said board shall be deemed vacant." In my opinion, this provision is not affected by G. L. c. 30, § 6A. Thus even though a "representative" member may appoint an alternate for cer- tain meetings, he may not himself be absent from more than four (4) regu- larly scheduled meetings of the Board of Higher Education, exclusive of July and August, in a calendar year. Very truly yours, Elliot L. Richardson, Attorney General