Number 12. December 10, 1976

Number 12. December 10, 1976 Honorable Robert Wood, President University of Massachusetts One Washington Mall Boston, Massachusetts 02108 Dear President Wood: You have requested my opinion on the applicability of the Massachu- setts open meeting law, G.L. c. 30A, §§ 1 1 A and 1 IB, to the University of Massachusetts' Board of Trustees. Specifically, you ask about the rela- tionship between the open meeting law and the provisions of G.L. c. 75, §§1 and 3, defining the range of authority of the Board. Your question is: Does the Board of Trustees of the University of Massachusetts have the autonomous authority under Mass. G.L. c. 75 to con- duct meetings as it may deem necessary, notwithstanding the provisions of Mass. G.L. c. 30A, §§ 1 1A and 11B, as most recently amended by St. 1975, c. 303, §1? 1 Until recently, the Board of Trustees had no rule which specifically defined or even considered the circumstances in which closed meetings — i.e., executive sessions — should be held. Without such a rule, your request for an opinion required a determination whether the autonomy granted the Board of Trustees under G.L. c. 75 was so extensive and un- equivocal as to pre-empt the application to it of general mandates such as the open meeting law even though the Board had not explicitly adopted a conflicting policy. On October 6, 1976, however, the Board of Trustees did adopt a rule concerning executive sessions. 2 This rule relates closely to the substance of your original question and will of necessity shape my lAs a result of the 1975 amendment you cite, there are presently two sections of G.L. c. 30A denoted as §1 IB. I will here refer only to the §1 IB inserted by the 1975 statute and amended again recently by St. 1976, c. 397, §§2-3. '- Executive Sessions. By vote of a majority of the trustees present at any meeting, the Board may enter into executive session, closed to the public. Executive sessions may be held only for the following purposes. (1) to discuss the reputation and character, physical condition or mental health as well as the pro- fessional competence of an individual; (2) to consider the discipline or, dismissal of, or to hear complaints or charges brought against an individual; (3) to discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the university; (4) to discuss the deployment of security personnel or devices; (5) to consider allegations of criminal misconduct; (6) to consider the purchase, exchange, lease or value of property or contracts if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation; (7) to comply with the provisions of any general or specific law or federal grant-in-aid requirements; (8) to consider the award of honorary degrees and other awards; (9) to consider the hiring or promotion of personnel; (10) to consider matters the disclosure of which might significantly frustrate the implementation of a proposed university action. The vote shall be taken by roll call and the purpose of the session shall be announced in advance. P.D. 12 107 response. In the present circumstances, I view your question as narrowed"' to a consideration whether the rule, adopted under the authority of G.L. c. 75, §3 may stand. For the reasons set forth in my analysis below, I conclude that it may. It is plain that the terms of the open meeting law, if considered in isola- tion, are applicable to the University of Massachusetts. General Laws, c. 30A, §11B mandates that "all meetings of a governmental body shall be open to the public . . . except as otherwise provided by this section" (emphasis added). While no decisions in Massachusetts have addressed the question, the Board of Trustees clearly appears to be covered by that part of §11A which defines "governmental body" as "a state board . . . within the executive or legislative branch of the commonwealth. . . ." The first sentence of the University's governing statute G.L. c. 75, §1", states: There shall be a University of Massachusetts which shall con- tinue as a state institution within the department of education but not under its control and shall be governed solely by the board of trustees under section twenty of chapter fifteen (emphasis added). Because the Department of Education is part of the Executive branch, G.L. c. 6A, §14, the Board of Trustees comes within that Branch as well, and is therefore a "governmental body" within the definition of the open meeting law. 4 Thus, absent a specific statutory exemption, meetings of the trustees would be subject to the requirements of the open meeting law. The open meeting law itself suggests no such specific exemption. The strongest argu- ment that such an exemption exists lies within the language of G.L. c. 75, §3, which reads in pertinent part as follows: Notwithstanding any other provision of law to the contrary, except as herein provided, the trustees may adopt, amend, or repeal such rules or regulations . . . for the regulation of their own body, as they may deem necessary . . . (emphasis added). The underscored language appears categorically to permit disregard of the open meeting law and to give the Board of Trustees free reign over the conduct of its meetings. Thus, by itself, section 3 would appear dis- positive of the question you pose/' While I ultimately conclude that §3 3For an analysis of the difference between the broad question of pre-emption by legislative intent, raised by your original request, and the narrower question of actual conflict between a statute and a rule, now in issue, see. e.g., Florida lime <S Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-152 (1963). 4This conclusion is buttressed by a recent decision of the Supreme Judicial Court treating a question of tort law. In Hannigan v. The New Gamma-Delta Chapter of Kappa Sigma Frat. Inc. Mass. Adv. Sh. ( 1975 ) 1416, 1417, 327 N.E. 2d 882, 883, the Court applied the doctrine of sovereign immunity to bar a tort action against the U. Mass. Board of Trustees. The Court held inter alia that "the trustees are one and the same parly, namely the Commonwealth of Massachusetts, since the action was not instituted against the trustees individually, but rather against the board as a statutory entity" (citing G.L. c. 20. S15, and G.L. c. 75, §1). See also 1965-1966 Op. Atty. Gen. (July 19. 1965). which con- cluded that the Board ol Tsustees fell within the coverage of the open meeting law, as then written. (This opinion is discussed below.) 5The word "notwithstanding" when used in a similar manner in other statutes, has been given a rigid interpretation by other state courts. See, e.g., Dover v. Dover, 15 C.A. 2d 675, 93 Cal. Reptr. 384, 385 (1971), State v. Superior Court of LA. County. 252 C.A. 2d 637, 60 Cal. Reptr. 653. 654 (1967) Cf. Board of Ed. of Maple Heights City School Dist. v. Maple Heights Teachers Ass'n., 41 Ohio Misc. 27, 322 N.E. 2d 154, 157 (1973). However, there are no Massachusetts decisions interpreting this phrase. 108 P.D. 12 does permit the Board's new rule to stand, a number of factors suggest that the reach of the statute's exempting language is not free from doubt. These factors thereby serve to define the parameters of §3 and must be considered. First, I note that pertinent legislative history does not support the notion that §3 provides the trustees with a blanket exemption from other- wise applicable general laws. Chapter 75, §3 was enacted as part of a comprehensive revision of the statutes governing the University, recom- mended by special commission appointed by the Legislature in May, 1961.° The Commission's primary effort was to provide the University with fiscal autonomy from executive agencies. See Report of the Commission, January 24, 1962, House Doc. No. 3350, particularly pp. 32-33. The Commission spent little time in its report discussing the regulatory powers of the Trustees over their own body. In its sole reference to this issue, the Commission wrote: The present authority of the Trustees to make rules and regula- tions is adequate but a revision is recommended so as to place this authority in one unified section of the General Laws. Com- mission Report at 34 (emphasis added). The regulatory power that the Commission in 1962 deemed "adequate" included no exempting language whatsoever. Indeed, the pertinent statute read, prior to the Commission's proposed revision: The Trustees shall make reasonable rules and by-laws consistent with law, with reasonable penalties, for the government of the University and for the regulation of their own body. G.L. c. 75, §10 (1958 ed.) enacted by St. 1863, c. 220, §2, amended by St. 1947, c. 344, §16 (emphasis added). This statute prior to 1962 thus required that Trustee rules be consistent with other laws. This being the case, it is at best unclear that the Legisla- ture in 1962, in adopting an extensive statute dealing primarily with fiscal autonomy and guided by the Commission Report, intended to provide the Trustees with a blanket exemption from all general laws. 7 A further basis for suggesting that the exempting language of G.L. c. 75, §3 may be subject to some limitation is the structure of §3 itself. s Rather 6The Special Commission on Budgetary Powers of the University of Massachusetts and Certain Related Matters, established by St. 1961, c. 92. i\ am mindful of various rules of statutory construction relating to the appropriate use of legislative history. Principally, a statute must be interpreted according to the intent of the Legislature as ascer- tained from all the words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the main purpose of it may be affectuated. Board of Education v. Assessor of Worcester, Mass. Adv. Sh. (1975) 2626, 2629. Industrial Finance Corp. v. State Tax Commission, Mass. Adv. Sh. (1975) 967, 972. In this case, in an effort to ascertain the fair implications of G.L. c. 75, §3, I have considered the statutes in question "not in isolation but in relation to each other and to other statutes, resorting to their origins, their historic development, and their present language." Pereira v. New England LNG Co. Inc. 364 Mass. 109, 115 (1973). 8 It should also be noted that a prior Opinion of the Attorney General, 1965-1966 Op. Atty. Gen. (July 19, 1965), supra, concluded that "the trustees of the University are required by c. 30A, §11A to hold meetings which are public in nature." It is true that this opinion did not address the specific question whether G.L. c. 75, §3 constituted an exemption from the open meeting law. However, the General Court did not see fit. after the issuance of the opinion, to alter the conclusion reached by the Attornev General. In its 1975 and 1976 amendments to c. 30A, §§11 A and 11B (St. 1975, c. 303, §1 and St. 1976, c. 397, §§1-3) the General Court left the opinion undisturbed. While the Legisla- ture's failure to amend the statute in light of the Attorney General's opinion does not rise to the level of ratification, the Legislature's apparent tolerance of the conclusion reached by the opinion is entitled to some weight. Cf. Forder v. Hopkins, 329 Mass. 668, 671, (1953) (Legislature pre- sumed to be aware of pertinent judicial decisions). P.D. 12 109 than providing the Board of Trustees with an absolute exemption from the application of general laws in the conduct of its affairs, the section speaks only to the power of the Trustees to adopt, amend, or repeal rules or regulations for the regulation of their own body "notwithstanding any other provision of law to the contrary/ 1 Thus, the exemption appears to confer broad authority on the Trustees in the adoption of rules, but by necessary implication to limit their conduct in the absence of duly adopted rules. In this manner the statute implies that when the Trustees have deliber- ated over a particular policy for the regulation of their own body, have reached a collective decision and have promulgated a rule pursuant to the procedure set forth in §3, 9 that policy decision should take precedence over other general laws to the contrary. When, however, no such delibera- tive process has been followed, the applicable provisions of general laws should prevail. Such a reading (a) permits the specific statute governing the Trustees' powers (G.L. c. 75, §3) to be read in greatest possible harmony with applicable general laws. 10 (b) avoids the extreme result of permitting a single statutory phrase to suspend ex proprio vigore the operation of all general laws potentially applicable to the Board's regula- tion of its affairs, and (c) insures that, if the provisions of general laws are given way to specific measures to the contrary, 11 it will be in circum- stances where the Trustees have focused on the very policy question raised in the general law and have acted not on an ad hoc basis but rather in prospective, general terms appropriate to the importance ascribed to the issue by the Legislature. Thus, the proper response to your broad question would raise a trouble- some issue absent a specific Board regulation on open meetings. The issue, however, is narrowed and simplified by promulgation of the October 6, 1976 rule. See n. 2, supra. As stated above, the question now is whether this regulation may stand. This question is not answered by prior opinions. In 1965-1966 Op. Atty. Gen. (July 19, 1965), supra, the Attorney General did conclude that the open meeting law applied to the Board of Trustees, but in a situa- tion where no specific rule pursuant to G.L. c. 75, §3 had been promul- gated. Further, in 1975-1976 Op. Attv. Gen. (Jan. 9, 1975) supra, the Attorney General determined that c. 75, §3 exempted the Trustees from the rulemaking procedures of c. 30A, §§2-9. However, in that instance the procedures of c. 30A conflicted directly with contrary procedures pro- vided by the exolicit terms of §3. See n. 9, supra. 12 The situation here is thus a novel one. f'The procedures mandated by c. 75. §3 provide: "The trustees shall publish such rules and regulations and shall file copies thereof with the gov- ernor, the commission on administration and finance, and the joint committees on ways and means." The controlling effect of these procedures despite conflicting rulemaking procedures in G.L. c. 30A. §§2-9 is discussed in 1974-1975 Op. Atty. Gen. (January 9. 1975). See p. 9 infra. i05ee Board of Education v. Assessor of Worcester, supra. Mass. Adv. Sh. (1975) at 2629. nPereira v. New England LNG Co. Inc. 364 Mass. 109, 118 (1973). '2£ee also 1967-1968 Op. Atty. Gen., (November 13. 1967) where language in G.L. c. 75A, §7 applicable to the University of Lowell Board of Trustees and parallel to G.L. c. 75. §3 was determined to pre- clude application of the general quorum requirements of G.L. c. 4. §6. paragraph 5. In that situation, notably, the Trustees had actually adopted its own quorum by-law. That opinion therefore is in harmony with the conclusions reached here. 110 P.D. 12 However, the language and structure of G.L. c. 75, §3 does provide the answer to your question. The statute plainly provides that once its conditions have been fulfilled through the promulgation of or rule by the Board of Trustees, then "notwithstanding any law to the contrary" the regulation governing the operation of the Board's own affairs must prevail. This interpretation gives meaning to all the language in §3. See Common- wealth v. Woods Hole, Martha's and Nantucket S.S. Authority, 352 Mass. 617, 618 (1967). Moreover, it gives due recognition to the principle that when, as here, every effort has been made to avoid a construction that places two statutes in conflict, see Brooks v. Fitchburg & Leominster St. R'y, 200 Mass. 8, 17 (1908), and a conflict remains, the general statute must yield to the provision of the specific statute. Pereira v. New England LNG Co., Inc. supra. General Laws, c. 75, §3 unquestionably constitutes the kind of specific statute to which the general mandate of the open meet- ing law must yield once the conditions of c. 75, §3 have been fulfilled. 13 In summary, I conclude that the broad question posed by your original request concerning the general authority of the Trustees to conduct meet- ings has been superseded by the promulgation of a comprehensive rule limiting the use of executive sessions. It is my opinion that this rule is valid. Very truly yours, FRANCIS X. BELLOTTI Attorney General