Number 12 May 9, 1980

Number 12 May 9, 1980 William M. Shipps, Commissioner Department of Labor and Industries Saltonstall Building 100 Cambridge Street Boston, MA 02202 Dear Commissioner Shipps: You have requested my opinion whether Guy Carbone, the present Commis- sioner of the Metropolitan District Commission (MDC). may receive pay in lieu of vacation time which he accrued while employed by the Department of Labor and Industries (the Department).^ 1 begin this opinion with a brief recitation of the pertinent facts. ^See. e.g. Si. 1970. c. 426. which made corrective changes in Ihis one stalulc by subsliluting 'commissioner of youlh services" for •director of the division of youlh service m the department of education" The only significanl change in the law respecting school adjustment counsellors came with G.L c. 71. §38J, added by Si 1970. c. .1.V That provision, while indicating a presenllcgis alive desire to treat teachers and school adjustment counsellors equally with respect to the acquisition of tenure, docs not directly address, and is not dispositive of, the question answered by my predecessor and raised by your current opinion request. M have received from the Department and from the Division of Personnel Administration memoranda addressing the legal issues rasied by your request. 122 P.D. 14 The Governor appointed Mr. Carbone to the position of MDC Commissioner on May 3, 1979. Prior to that appointment, Mr. Carbone was employed by the Department as a Senior Attorney and as General Counsel. Mr. Carbone took a leave of absence from his position with the Department on May 3, 1979, and terminated from that position on June 1, 1979. At issue here are some 9y4 vacation days accrued by Mr. Carbone during fiscal year 1978 and a undeter- mined amount of vacation time accrued during the ten months he was employed by the Department during fiscal year 1979. For the reasons set forth below, I conclude that Mr. Carbone is not currently entitled to receive a payment in lieu of accrued vacation time. Vacation rights and procedures applicable to individuals employed by the Commonwealth are governed by the official rules and regulations of the Direc- tor of Personnel, pursuant to G.L. c. 7, §28,112, with exceptions not relevant here.^ Those rules and regulations are compiled for reference in the so-called "Red Book". See 1975/76 Op. Atty. Gen. No. 36, Rep. A.G., Pub. Doc. No. 12 at 120 (1975). Red Book Rule LV-1 permits state employees to accrue vacation time, and Rules LV-7 through LV-9 provide for payment in lieu of accrued vacation time in a manner consistent with guidelines set forth in G.L. c. 29, §31A.^ Read together, those provisions provide for payment in lieu of accumulated vacation days only to an individual who has "separated" from state service. Separation may be achieved by death, retirement, dismissal (with- out fault of the employee) or other reasons. See G.L. c. 29, §31 A; Red Book Rules LV-7 through LV-9. Mr. Carbone is presently eligible for payments in lieu of accrued vacation credits only if he has separated from state service. Any argument that Mr. Carbone is entitled to a payment in lieu of his accrued vacation credits hinges upon the proposition that by accepting his position as MDC Commissioner, Mr. Carbone has separated from state service. That un- derlying proposition is not tenable. As MDC Commissioner, Mr. Carbone is a "person who is in charge of or, in fact, the head of a department, division, commission or committee established by statute . . . whose appointment must have Governor and Council approval. ..." Red Book Rule G-6; see also G.L. c. 28, §§I, 3. Mr. Carbone is thus presently an officer of the Commonwealth who is exempt from the vacation rules. This exemption does not mean, how- ever, that he may be considered to be separated from state service on the sole basis that his position is not presently covered by the vacation rules. Movement from a position as a state employee to one as an officer of the Commonwealth does not constitute separation from state service. See 1962 Op. Atty. Gen., Rep. A.G. Pub. Doc. No. 12 at 153 (1962); Mitchell v. Metropolitan District Commission, 4 Mass. App. Ct. 484, 487-488 (1976) (MDC is a department of See. e.g.. St. 1975. c. 689, exempting the Department of the Attorney General and the offices of the State Treasiirer, State Secretary and State Auditor from the Red Book rules and allowing each constitutional officer to establish the salaries, duties and personnel regulations of all officers and employees within their respective offices. ^Rules LV-7, 8 and 9 track the language of G.L, c. 29, §31 A, which provides in relevant part: (b) Employees who are eligible for vacation under the rules of said personnel administrator and whose services are terminated by dismissal through no fault or delinquency of their own, or by retirement, shall be paid an amount equal to the vacation allowance as earned in the vacation year prior to such dismissal or retirement which had not been granted, and. in addition, that portion of the vacation allowance earned in the vacation year during which such dismissal or retirement occurred, up to the time of separation, provided, that no monetary or other allowance has already been made therefor. (c) Employees who are eligible for vacation under the rules of said administrator and whose services were terminated for reasons other than those defined in paragraphs (a) or (b) shall be paid an amount equal to the vacation allowance credited but not granted to them as of the final date of the next preceding vacation year; provided, that no monetary or other allowance has already been made therefor. P.D. 14 123 the Commonwealth which "has at all times remained subject to the laws regu- lating the administration of Commonwealth agencies'"). Mr. Carbone's current status simply makes him ineligible to accrue vacation credits until he returns to a non-exempt position. See Rules G-5 and G-6; G.L. c. 29, §31A; see also 1962 Op. Atty. Gen., Rep. A.G. Pub. Doc. No. 12 at 153 (1962). Thus, for example, if Mr. Carbone were to return to his former position within the Department, he would be entitled to "the vacation credits he had earned and which had accrued to him and which he had not been granted at the time he left a position subject to the vacation rules and began service in an exempt position." 1962 Op. Atty. Gen., Rep. A.G. Pub. Doc. No. 12 at 153, 154 (1962).^ Moreover, Mr. Carbone's tenure of state service was not in- terupted by his movement from the Department to the MDC. It was determined by one of my predecessors that an individual whose service with the Com- monwealth is uninterrupted is entitled, upon return to a position subject to vacation rules and procedures, to vacation benefits accrued in the former posi- tion at the time the individual accepted appointment to a position not subject to vacation rules. 1962 Op. Atty. Gen., Rep. A.G. Pub. Doc. No. 12 at 153 (1962). I note, as did my predecessor, that Red Book Rule LV-20 explicitly provides for such a situation by holding that "laj person whose employment by the Commonwealth is uninterrupted shall retain all accrued vacation credits." The precise nature of vacation benefits to which Mr. Carbone would be entitled depends not only upon whether he continues in or separates from state service, but also on the manner in which he does so.'^ The payments to which he may be entitled*^ and the question whether he may receive payment in lieu of vacation credits should he separate from state service while an officer of the Commonwealth, are hypothetical questions which 1 must decline to answer. It is a long settled policy that the Attorney General should offer a formal legal opinion only in those circumstances which pose extant case or controversy or which concern some immediate duty. See, e.g.: 1 Op. Atty. Gen. at 269, 273 (1895); 1966/67 Op. Atty. Gen. No. 112 Rep. A.G., Pub. Doc. No. 12 at 223, 224(1967). In summary, I have concluded that Mr. Carbone is not presently entitled to payment in lieu of accrued vacation credits because he has not separated from state services. He may be eligible for such payment upon separation from state service, and the precise nature of his separation will determine the amount of payment to which he will be entitled. Ver>' truly yours, FRANCIS X. BELLOTTl Attornex General •Under the Red Book rules. Mr. Carbone would nol benefu from any vacation allowances for the time he served as MDC Commis- sioner since that position is exempt from those vacation rules See 1962 Op. Atty. Gen.. Rep. A.G. Pub Doc. No. 12 at ISS (1962). ^For example, if Mr. Carbone were to return to the department and then retire, he would be •entitled to payment for the unused vacation credits earned in the year of retirement and the unused vacation credits held m escrow from the year pnor to rctircmcm. which is construed as the vacation year during which the employee took the leave ot absence. 1975/76 Op. Atty. Ocn.. No. 5-. Rep. AG. Pub. Doc. No. 12 at 144(1976). «! note, however, that rule LV-5 prohibits any payment for vacation credits carried over an additional year to an employee who separates from stale service even though credits were held in escrow during the time the employee worked m the position exempt from vacation rules. Such credits are available for use as vacation days prior to retirement, but not for payment in lieu ol vacation. 1975/76 Op. Atty Gen. No. 52. Rep AG Pub. Doc. No. 12 at 144 ( 1976). 124 P.D. 14