Number 4 November 20, 1979

Number 4 November 20, 1979 Eileen Schell Secretary Executive Office of Consumer Affairs One Ashburton Place Boston, MA 02108 Dear Secretary Schell: You have requested my opinion whether the present executive secretary to the Board of Registration in Nursing is qualified by law to serve in that posi- tion. In order to answer your question, 1 have considered whether the executive secretary was qualified to be so appointed when she was named and whether she is now eligible to serve in that position. I conclude that the incumbent was not originally qualified for appointment as executive secretary and is not currently eligible to continue serving in that capacity. General Laws chapter 13, §14 provides in relevant part: The board [of registration in nursing] shall appoint an executive secretary who at the time of appointment shall hold a bachelor's degree, shall have been registered to practice as a registered nurse in the Commonwealth for at least eight years, shall have been actively engaged in such practice for at least eight years, during at least five years of which he shall have served on the teaching or administra- tive staff of a school of nurses duly approved in accordance with chapter one hundred and twelve, and who shall continue to be so registered so long as he shall hold the said office. He shall not be a member of the board, shall not be subject to chapter thirty-one, shall perform under the direct supervision, of the board such duties P.D. 14 ' 103 as the board shall from time to time designate, and shall receive such salary as may be fixed in accordance with chapter thirty. (Em- phasis added.) From the materials which you have forwarded, I have gleaned the following T relevant facts. Marguerine Ginty, the present executive secretary, was ap- pointed by the Board of Registration in Nursing [hereinafter, "the Board"] on October 2, 1977. Mrs. Ginty was registered as a nurse in the Commonwealth by certificate issued November 23, 1971.^ At the time of her appointment, Mrs. Ginty had been registered to practice as a nurse in the Commonwealth for less than six years and not for the minimum of eight years as required by G.L. c. 13, §14. She was, therefore, not qualified to be appointed at that time and would not be so qualified until at least November 23, 1979.'^ Because Mrs. Ginty does not meet the statutory requirements for appoint- ment, her appointment as Executive Secretary to the Board is void. Moreover, she is not lawfully eligible to continue serving until such time as she meets those requirements and is thereafter appointed in accordance with G.L. c. 13, §14. See, e.g., Phelon v. Inhabitiants of Granville, 140 Mass. 386, 389 (1886); Commonwealth v. Allen, 128 Mass. 308, 311 (1880). The fact that Mrs. Ginty at some point in the future may meet the statutory qualifications for appointment does not cure the deficiency of the original appointment. See Commonwealth v. Swasey, 133 Mass. 538 (1882). Until such time as she is validly appointed, her service as Executive Secretary is in a de facto, as opposed to a de jure capacity. Ibid. The proper remedy in such circumstances is an action in the nature of quo warranto against Mrs. Ginty to seek her removal. Such action may be brought only by the Attorney General pursuant to G.L. c. 249, §9,^ and filing such an action is a discretionary act. Boston Edison Co. v. Boston Redevelopment Au- thority, 1977 Mass. Adv. Sh. 2676, 2720. If you or the Board are desirous of causing such an action to be filed, you should formally communicate your desires to me. Because Mrs. Ginty 's title to the office of Executive Secretary to the Board derives from an invalid appointment, 1 conclude that she is not now entitled to hold that office. The Board is not, however, precluded from reappointing Mrs. Ginty to the position of executive secretary at such time as she possesses the statutory prerequisites for appointment. Very truly yours, FRANCIS X. BELLOTTI Attorney General 'The malenals submitted to me also md.cate that Mrs. Gmty was orgmally registered as a nurse by the Connecticut Board of Registration in 1947. 2The matenals submitted to me do not rertect whether Mrs. Ginty has satisfied the other ^"f f"'""°"'|, f°^^ ^Pf"'"'™"'J*];'^,;^" statute requires, including a bachelor's degree, eight years of active practice, and five Jj^ars of servjce on *e >eaching or adm n^^^ live staff of a duly approved school for nurses. G L. c. 13, §14. Having concluded that ^1^^ ^'"'y ^''^ ""' ^<=«^'^^«„'^.™ 'J^^ required eight year period. I need not consider these other factors. They make it impossible however, for me to consider the hypothetical question whether Mrs. Ginty would be qualified to be appointed on November -i. iv /v. 3An action in the nature of quo warranto by the Attorney General is one of two proper methods to <;>;;" '";|^;;id"«'rs n|ht and title «, public office. Where a petitioner claims the public office, mandamus, and not quo warran o '^ ^e f oper ^;"""- ^"^^^^^^^^ Ru'isell ^60 Mass »)4 ->9'; (19^71 It is clear, however, that a public officer's right and title cannot be attacked collaterally, but only dire'ctly in a proceeding to determine the validity of that title. Bos.on Edison Co. v. Boswn Rede.elopmen, Au.honn: 1977 Mass, Adv. Sh. 2676, 2720. 104 P.D. 14