Number 5 November 21, 1979

Number 5 November 21, 1979 Joel H. Goober. Esq. Election Ojficer Commonwealth of Massachusetts Teachers' Retirement Board One Ashburton Place Boston. MA 02108 Dear Mr. Goober: You have requested my opinion whether Chapter 523 of the Acts of 1978 grants to retired members of the Teachers' Retirement System the right to vote in Teachers' Retirement Board elections. 1 am of the opinion that Chapter 523 does not grant them that right. Chapter 523 of the Acts of 1978 is entitled "An Act Providing Voting Rights for Retired Members of the Retirement System for Public Employees." Section 1 reads as follows: Clause (//') of paragraph ia) of subdivision (1) of section 3 of chap- ter 32 of the General Laws as appearing in section 1 of chapter 658 of the acts of 1945. is hereby amended by striking out the last sentence and inserting in place thereof the following sentence: - Any member in active in senice shall have full voting powers in the system as provided in section twenty. (Emphasis added.).' It is evident from the Act's title and provisions that its purpose is to extend the right to vote in retirement board elections to retired members of many of the municipal and state retirement systems in the Commonwealth.^ 1 am of the opinion, however, that Chapter 523 of the Acts of 1978 does not succeed in extending the right to vote to retired members of the Teachers' Retirement System. The last sentence of this section contains an obvious error. ^ The phrase "in active in service" contained in that sentence makes no sense. The sentence "Any member in active in service shall have full voting rights as provided in section twenty." is therefore so ambiguous that, even with the aid of all avail- able tools of statutory construction. I am unable to determine an effectuate the Legislature's intent. In addition. Chapter 523 does not explicitly amend the statute covering the election of the board. Teachers" Retirement Board Elections are currently governed by G.L. c. 15. §16. That statute provides that of the five member board, "two members . . . shall be elected by the members in service of such system. . . .''Id. Chapter 523 of the Acts of 1978 makes no reference to, and does not expressly amend that statute. 'This language comes from the official version of the statute, as printed by the Secretary of State and signed by the Governor. The statute as primed in the Massachusetts Legislature Service and the 1979 pocket part of G.L. c. 32. §3. pubHshed by the West Publishing Company reads: Any member in active service shall have full voting powers in the system as provided in section twenty. ^The remainder of Chapter 523 of the Acts of 1978 makes changes in the votmg rights in the various municipal and state retirement systems, primarily by extending voting rights to retired members Section 3 of Chapter 523 extends voting rights to inactive members of city and town retirement systems: Section 4 extends voting rights to inactive members of the Massachusetts Housing Finance Agency retirement system; Section 5 accomplishes this result for the Massachusetts Turnpike Authority System; and Section 6 does so for the Massachusetts Bay Transportation Authority police retirement system. Section 2 of Chapter 523 permits retired members of county retirement systems to receive candidate nomination papers; these retired members had been granted the right to vote by Section 3 of Chapter 890 of the Acts of 1977. 'a bill to revise this language was filed in the Senate but was not enacted This opinion was delayed in order that the Legislature might consider and act upon that bill. P.D. 14 105 Nor does the Act. in my opinion, impliedly amend G.L. c. 15. §16. Three possible sources of an implied amendment of G.L. c. 15. §16 sussest them- selves. One is the change in G.L. c. 32. §3 (a) (ii). worked by Section 1 of Chapter 523. Another is the title of the Act. The third is the manifest legislative intent to extend voting rights to retired members of retirement systems. I find that none of these aspects of Chapter 523 impliedly amends the election proce- dures of G.L. c 15. §16. Section 1 of Chapter 523 deletes the sentence "No member inactive shall have any voting rights in the system." from G.L. c. 32. §3 (1) (a) (ii) and purports to substitute therefor the confusing language underscored above. The deletion of this prohibitory language does not by itself constitute a grant of voting rights to retired persons. The deletion merely avoids the inconsistency that would otherwise result between the deleted sentence's prohibition of voting rights for retired persons and the grant of such rights to retired members of various retirement systems accomplished by Sections 3 through 6 of the Act. Nor does the substitute language presented by Section 1 of the Act supply an aftlrmative grant of voting rights to retired members of the Teachers* Retire- ment System. Whatever its meaning.* that substitute language addresses only "voting powers in the system as provided in section twenty."" Noting powers with respect to Teachers" Retirement Board Elections, however, are provided in G.L. c. 15. §16. not in G.L. c. 32. §20." Neither the deletion nor the substitu- tion of language in Section 1 of Chapter 523 impliedly amends G.L. c. 15. §16. The title of Chapter 523. although arguably broader than the .Act"s provi- sions, does not enlarge their scope. The title to an act cannot control the plain provisions of the statute, although it may be a guide to resolving an ambiguity. Breault v. Ford Motor Co.. 364 Mass. 352. 353 n. 2 (1973). While Section' 1 of Chapter 523 contains some ambiguous language, there is no ambiguit>- with respect to the Teachers" Retirement Board Elections. .As previously obser\ed. whatever the meaning of the confusing language of Section 1. it does not purport to effect voting rights under G.L. c. 15. §16. .Accordingly, the .Act's title may not be relied upon to clarify the effect of the Act"s provision upon Teachers" Retirement Board elections, and therefore, does not effect an implied amendment of G.L. c. 15. §16. Finally, the legislative intent to extend voting rights to retired members of various retirement systems does not impliedly amend G.L. c. 15. §16. The legislative intent, as expressed in the Act. is to increase the rights of retired members of the county, city and town. Massachusens Housing Finance Agency. Massachusetts Turnpike .Authority, and Massachusetts Bay Transpor- tation .Authority police retirement systems, with respect to board elections within those systems. Although it might seem reasonable to extend the same rights to retired members of the Teachers" Retirement System, the language of the .Act does not manifest an intent to do so. The statutor>- language itself is the principal source of insight into the legislative purpose. Hoffman v. Howmedica. ^Moreover, the phrase in active in senice." used in the substitute, is nowhere defined. "Member in semce is defined in G^L. c 32. §3 (O (at (il and member inactive- is defined in G L. c. 32. §3 (DO) (ii). The phrase used m Chapter 523. in contrast has no apparent meanma. Thus, it Chapter 523 had used the phrase member in acuvt". mv task would be somewhat easier and 1 might have intepieted the space between in" and -acuve'^ to be a t\ pographical error, .^s it is. however. 1 am unable to determine wHat. if anything, the additional phrase '"in service" means in this context. 'Mthough G.L. c. 32. $20 does make reference to G.L. c. 15. §16 I decline to relv upon such reference to find an implied amendment of that latter provision. 106 P.D. 14 Inc., Mass. Adv. Sh. (1977) 1488, 1493; Commonwealth v. Gove, 366 Mass. 351 , 354 (1974). The General Court took care in sections 2 through 6 of the Act to amend several individual statutory provisions relating to board elections within various different retirement systems, yet left G.L. c. 15, §16 untouched. I must, therefore, conclude that the statutory purpose did not include extending voting rights to retired members of the Teachers' Retirement System. Even if I were to conclude that the General Court intended to accomplish that result, the intent would be insufficient to alter the actual text of the law. In summary, it is my opinion that Chapter 523 of the Acts of 1977 simply does not extend the right to vote in Teachers' Retirement Board elections to retired members of the Teachers' Retirement System. Very truly yours. FRANCIS X. BELLOTTl Attorney General