Number 17. January 27, 1977

Number 17. January 27, 1977 John R. Buckley Secretary of Administration and Finance State House Boston, Massachusetts 02133 Dear Secretary Buckley: You have requested my opinion concerning the following question: May the Commissioner of the Department of Corporations and Taxation designate a person pursuant to Chapter 14, Section 1 temporarily to fill a vacancy in the position of Director of Accounts resulting from the retirement of the Director? The recent retirement of the Director of Accounts occasions your re- quest. General Laws c. 14, §1 provides in relevant part: The commissioner may designate a competent employee in the bureau of accounts to perform the duties of the director of accounts in case of his absence, death, or disability; and notes of counties, towns and districts, when certified by such employee, shall have the same validity as if certified by the director. It is my opinion that this statute grants to the Commissioner authority to designate an employee in the bureau of accounts to act as director on a temporary basis pending the selection and appointment of a new director where retirement has caused a vacancy in that position. "[D]eath" and "disability" are relatively specific circumstances under which the temporary designation of a director is allowed. In order to supplement them, however, the legislature has seen fit to add a general category of "absence." The term "absence," unlike "death" or "disability," does not suggest a particular cause of or length of time for nonperfor- mance. 1 Had the legislature contemplated a narrowly defined set of cir- cumstances under which designations were to be allowed, it would have avoided the term "absence" altogether or else modified the term to indicate 2As a consequence of this opinion, it follows that the employee's spouse is not entitled to a survivor's allowance under G.L. c. 32. §12(2) (d), and his children are entitled to share equally in the refund of his actual contributions to the system. iln this sense the flexibility of the term is even greater than "vacancy," which generally describes a permanent inability to act. See Op. Atty. Gen. No. 75/76-73 (June 11, 1975). 120 P.D. 12 that only certain types of absences would qualify. Compare G.L. c. 11, §2; c. 10, §5.- Further support for a broad construction of the term "absence" in G.L. c. 14, § 1 is derived from the emergency preamble to the Act inserting that section in the General Laws, St. 1954, c. 429. The preamble defines the purpose of the Act as "provid[ing] for uninterrupted service in the Bureau of Accounts." This indication of legislative intent is consistent with a liberal construction of the term "absence" in the statute, as only an expansive reading of the term would allow for a temporary designation in every situation where it became necessary to maintain uninterrupted service by the Bureau. A statute should be construed to effectuate an express legislative purpose. Board of Education v. Assessor of Worcester, 1975 Mass. Adv. Sh. 2626, 2629-2630, 333 N.E. 2d 450, 452-453 (1975). General Laws c. 14, §1 aside, the broad administrative powers vested in the Commissioner under G.L. c. 14, §3 would seem to include the authority temporarily to designate an acting director of accounts upon retirement of the permanent director. The first paragraph of §3 provides: The commissioner shall be responsible for administering and enforcing all laws which the department is or shall be required to administer and enforce. He shall be the executive and adminis- trative head of the department and each division, bureau, section and district office thereof shall be under his direction, control and supervision. The section then goes on to grant the Commissioner extensive authority over the organization of the Department and the appointment, assignment and transfer of its employees. It is my opinion that the Commissioner's supervisory authority and responsibilities as defined by §3 are broad enough to authorize the designation of a temporary director of the bureau of accounts prior to the appointment of a permanent director upon the previous director's retirement. When there is insufficient time to appoint a permanent director, for example, such a designation would be necessary in order to ensure that the duties of the bureau's director continue to be executed. 3 2These provisions, also relating to "absences" of persons filling positions in the Commonwealth, explic- itly characterize the absences as temporary or else treat them as one of a broader class of disabilities. G.L. c. 11, §2 provides in part: If, by reason of sickness, absence or other cause, the auditor is temporarily unable to perform the duties of his office, the first deputy shall perform the same until such disability ceases. G.L. c. 10, §5 provides in part: During the illness, absence or other disability of the treasurer, his official duties shall be per- formed by the said deputies in the order of seniority. In contrast, the use of the term "absence" in G.L. c. 14, §1 is neither specifically limited to temporary situations nor made a sub-category under the umbrella of disabilities. Rather, it is a separate category co-equal to "death" and "disability." Where an alleged inconsistency exists among statutes it is a familiar rule of construction that they be interpreted to give a reasonable effect to all. Everett v. Revere, 344 Mass. 585, 589, 183 N.E. 2d 716, 719 (1962). A broad reading of "absence" as used in G.L. c. 14, §1 would accomplish this objective. 3An opinion of a prior Attorney General, 1963-64 Op. Atty. Gen. No. 98 (August 28, 1964) [sic], sup- ports the conclusion I have reached here. That opinion recognized the authority of the Commissioner of Corporations and Taxation to make a temporary appointment of a chief of a bureau when the former holder of the position took a leave of absence — despite the lack of specific statutory founda- tion for its exercise. P.D. 12 121 In sum, I am of the opinion that under the specific and general powers delegated to the Commissioner by G.L. c. 14, §§1 and 3, respectively, the Commissioner may designate or appoint an employee of the bureau of accounts to fill the position of director pending the selection, appointment and approval of a permanent director when the previous occupant of that position has retired. Accordingly, I also conclude that pursuant to the last clause of c. 14, §1, the notes of counties, towns and districts certified by such a designee will possess the same validity as those certified by a permanent director. I wish to emphasize, however, the temporary nature of this designation. The Commissioner should make every effort to appoint and seek approval of a permanent director as soon as possible in order to comply with the statute's requirement that there is to be a permanent director of accounts. Very truly yours, FRANCIS X. BELLOTTI Attorney General