Number 11 May 2, 1980

Number 11 May 2, 1980 Gregory R. Anrig, Commissioner Department of Education 182 Tremont Street Boston, MA 02108 Edward M. Murphy, Commissioner Deptartment of Youth Services 294 Washington Street Boston, MA 02108 Dear Commissioner Anrig and Commissioner Murphy: You have requested my opinion whether General Laws Chapter 71, Section 46G prohibits local appointing authorities from employing school adjustment counsellors on a part time basis. G.L. c. 71, §46G permits local school commit- tees and regional school districts (hereafter, "local appointing authorities") to employ school adjustment counsellors ("counsellors") in order to detect and prevent juvenile delinquency among school children.' Your request is made in light of the opinion of one of my predecessors in office that Section 46G prohibits local appointing authorities from hiring counsellors on a part time basis. See 1957 Op. Atty. Gen., Rep. A. G., Pub. Doc. No. 12 at 18(1957). That opinion was issued in response to a request by the then Director of the Division of Youth Service, who posed to my predecessor essentially the same question you now ask of me. The issued opinion relied heavily upon an infer- ence created by that portion of Section 46G which allows local appointing authorities "not requring the services of a school adjustment counsellor on a full time basis" to join with one or more other local appointing authorities to em- ploy a full time counsellor. My predecessor considered this language, together with the stated purpose of Section 46G, and concluded that the General Court was reluctant "to permit the delicate problems confronting the counsellors to be handled by part-time personnel, perhaps on a more or less haphazard basis . . . r' Id. While I might reach a different conclusion if yours were a question of first impression, for the reasons set forth below, I decline to reverse the opinion of my predecessor. I believe that an opinion of the Attorney General is entitled to great weight and is subject to reversal only if there has been a substantive change in the law, or if the original interpretation was clearly erroneous. Nei- ther situation obtains in this case. The prior opinion presents a paradigmatic example of an opinion which resists reversal. First, the interpretation by my predecessor was a virtually con- temporaneous construction of a newly enacted statute.^ Second, I have been ^G.L. c. 71, S46G provides in relevant part; To facilitate the early detection of children manifesting traits tending toward juvenile delinquency and to assist in the prevention of such children becoming juvenile delinquents, any city or town acting by its school committee and out of funds appropriated for general school purposes, and any regional school district, may employ such number of school adjustment counsellors as the school committee, with the wntten approval of the commissioner of youth services, shall deem necessary .. , No person shall be employed under this section unless his professional and personal qualifications have been approved by the commissioner of education and the commissioner of youth services. If said commissioner of education or said commissioner of youth services disapproves the qualifica- tions of such person, he shall state in wnting his reasons. Any town or regional school dislnct not requinng the services of a school adjustment counsellor on a full time basis may join with one or more other towns or regional school distncts in employing a school adjustment counsellor under the limitations of this section. ^G.L. c. 71, §46G was inserted by St. 1955, c. 696, and became effective on August 22, 1955. P.D. 14 121 informed that in the twenty-three years since it was issued, my predecessor's opinion has been consistently applied by the state agencies empowered to act pursuant to G.L. c. 71, §46G. Third, although the legislature has been presumptively aware of this contemporaneous construction over this period of time, the only changes it has made in the statute have been cosmetic in nature.^ A long standing and consistently applied opinion should not be overturned by me on the sole basis that I, taking a fresh look at the subject under changed circumstances twenty-three years later, might decide the question differently. It is well settled that great weight must be given to a "consistent, long continued administrative application of an ambiguous statute, . . . especially if the inter- pretation is contemporaneous with the anactment." Cleary v. Cardullo's, Inc., 347 Mass. 337, 343 (1964) and cases cited. See also Devlin v. Commissioner of Correction, 364 Mass. 435, 439 (1973); Board of Assessors ofHolxoke v. State Tax Commission, 355 Mass. 223, 243-44 (1969). In those instances where state agencies or officials determine that a long standing administrative interpretation of a statute merits reversal or change, the first and primary course of action is to achieve amendment of the law through legislative action. See, e.g.. Commonwealth v. Town of Andover, Mass. Adv. Sh. (1979) 1619, 1630-31; Whitney v. C/A' of Worcester, 373 Mass. 208, 212- 13 (1977); Morash & Sons v. Commonwealth, 363 Mass. 612, 623 (1973). In summary, I therefore decline to overturn the earier opinion. I respectfully suggest that should you desire to alter the law as it has been consistently applied since its enactment, you attempt to seek such change by presenting your con- cerns and views to the General Court. Very truly yours, FRANCIS X. BELLOTTI Attorney General