Number 13 May 9, 1980

Number 13 May 9, 1980 Richard Cronin, Director Division of Fisheries & Wildlife 100 Cambridge Street Boston, MA 02202 Dear Mr. Cronin: As Director of the Division of Fisheries and Wildlife (the "Division"), you have asked my opinion whether the Division may offer for sale various publica- tions which are presently distributed free and whether the Division may deposit the income from any such sales in the Inland Fish and Game Fund (the "Fund"). For the reasons discussed below, 1 must respectfully decline to answer whether the publications may be sold, since the authority to make that decision is committed by law to the state purchasing agent. 1 am of the opinion, how- ever, that if the publications in question may be sold, the income from such sales is to be deposited into the Treasury of the Commonwealth and credited to the Fund. All state printing is supervised by the state purchasing agent, and unless otherwise provided, distribution of all state publications is under the direction of the state secretary. See G.L. c. 5, §1. Sale of state publications is governed by G.L. c. 5, §8, which provides in relevant part: When in the opinion of the state purchasing agent, a state publi- cation is not of sufficent public benefit to be distributed free of charge, he may declare such publication to be an official text book, case book or technical report; provided, that the status of such pub- lication has not already been determined by the general court. An appeal from the decision of the state purchasing agent shall lie to the committee of the executive council appointed to consider matters of finance, whose decision shall be final. Text books, case books or technical reports shall be distributed exclusively by the state secre- tary. . . . They may be delivered to other perons only upon receipt of a sum equal at least to the estimated cost thereof, as determined by the comptroller. G.L. c. 5, §8 has been virtually unchanged since its adoption in 1918 (St. 1918, c. 175) and has not been extensively analyzed or discussed by the courts or by my predecessors. Its application to your questions, however, seems rela- tively straightforward. If you wish to sell certain publications, you must first present them to the state purchasing agent for a determination whether they meet the statutory criteria and may, therefore, properly be sold. If the purchas- ing agent determines that they may be sold, it is then the comptroller's responsi- bility to fix the price. Distribution of publications for sale is the exclusive responsibility of the state secretary. G.L. c. 5, §8. There do not appear to be any provisions of law which explicitly provide the manner in which the state secretary is to carry out this responsibility. While the state secretary cannot delegate his duties to another 'in so doing, the comptroller is, of course, free to consult with the Division and with the State Book Store as to the costs of producing and distributing the particular documents in question. P.D. 14 25 officer without express authority, see 1976/77 Op. Atty. Gen. No. 22, Rep A.G., Pub. Doc. No. 12 at 132, n.l (1977); 1974/75 Op. Atty. Gen. No. 71^ Rep. A.G., Pub. Doc. No. 12 at 168, 169. (1975): 5 Op. Atty. Gen. at 628 (1920), he may nevertheless consuh with the Division on the subject of distribu- tion of Division publications.^ Assuming that sale of Division pubhcations is proper, you then ask whether the income derived from such sales may be deposited in the Fund. 1 conclude that the income derived from such sales must be deposited in the Treasury, as required by Article 63 of the Amendments to the Constitution, and then must be credited to the Fund, in accordance with G.L. c. 131, §2, which provides in part: Monies received by the commonwealth . . . from any and all sources pertaining to inland fishing, hunting and trapping ... or other receipts on account of activities of the division, shall be cred- ited on the books of the commonwealth to a fund to be known as the Inland Fisheries and Game Fund. See Opinion of the Justices, 334 Mass. 716 (1956).^ The sole question then is whether income received from the sale of Division publications comes within the purview of the statute. The publications which the Division wishes to sell are printed pursuant to the Director's authority to "conduct statewide information and promotion programs in wildlife conservation, including the utilization of wildlife compatible with good conservation principles. ..." G.L. c. 131, §4(13). This language is sufficiently broad to permit the Director to prepare publications espousing those programs on behalf of the Division. See Grocerx Mfg. Ass'n v. Department of Public Health, Mass. Adv. Sh. (1979) 2291, 2296: cf. 1966 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 144 (1966) (Registrar of Motor Vehicles has implied authority to charge a fee for providing a written reply to requests for information when preparation of the reply required examination and analysis of Registry records). Because the issuance of the publications is an appropriate activity to be undertaken by the Division, income received from sale of the publications would be "receipts on account of activities of the Division"^ and, therefore, must be credited to the Fund, as provided by G.L. c. 131 , §2.^ In summary, monies derived from the sale of Division publications must be credited to the Fund. The determination whether these publications may be sold, however, is a matter committed to the state purchasing agent and is therefore not appropriately answered in an Opinion of the Attorney General. Very truly yours, FRANCIS X. BELLOTTI Attorney General ^The secretary could, for example, arrange lo use any mailing lists the Division currently uses to distnbute its publications. 'The Division's use ol monies so credited to the Fund is restricted to the eleven purposes enumerated in G.L. c. 131. !i2 and cannot be made without appropriation by the Legislature. See Opinion of ihe Justices. 334 Mass. 716 ( 1956). "•in addition, the sale of these publications may produce income from a source 'pertaining to inland fishing, hunting and trappmg" and. therefore, within G.L c 131 , S2 Such a determination, however, involves a question of fact, which I must dcclmc to answer See. e.g.. 1962 Op. Atty. Gen., Rep. AG.. Pub. Doc. No I2al 199. 200(1962). ^is result is similar to the procedure which. I have been informed, ha.s previously been employed by the stale secretary m connection with the sale through the State Book Store of a publication compiled by the Massachusetts Histoncal Commission. General Laws chapter 9, section 26 provides that the state secretao may assist the Commission by publishing and disseminating information of an historic nature and that all moneys received thereunder are lo be administered as a separate trust fund. Assuming that the purchasing agent determines that sale of the publications in question is proper. G.L. c. 131 . «i!l2 and 4 (13). together with G.L. c. 5. §8, are analagous to G.L. c. 9. S26 As in that provision, it would be the responsibility of the state secretary, who supervises all state publications, to ensure that income from sale of Division publications is credited to the Fund. 126 P.D. 14 Number 14 ^ May 9, 1980 Edward T. Hanley Commissioner of Administration and Finance Exeuctive Office of Administration and Finance 373 State House Boston, MA 02133 Dear Commissioner Hanley: You have requested an opinion regarding the nature and extent of your au- thority under G.L. c. 30, §36 (hereinafter "Section 36") to establish and en- force regulations governing the use of motor vehicles owned by the Com- monwealth. More specifically, in seeking an interpretation of Section 36, you have asked two questions: (1) whether Section 36 invests you with the power to promulgate regulations and standards governing the use of state-owned motor vehicles in all state offices, departments, boards, commissions and institutions and whether any state governmental department is to be excused from compli- ance with these regulations; and (2) whether the provision of Section 36 calling for enforcement of the regulations governing the use of state-owned motor vehicles empowers you to establish sanctions for violation of the regulations, and if so, what types of sanctions are legally permissible. For the reasons discussed below, I have concluded that Section 36 provides you with specific authority to establish regulations for the use of state-owned motor vehicles. Moreover, you may employ any reasonable means to enforce such regulations consistent with the limitations described below. The first sentence of Section 36 provides you with full authority to establish regulations governing the use of state-owned motor vehicles. "The commis- sioner of administration shall establish and enforce regulations governing the use and marking of motor vehicles owned by the commonwealth." The word "shall" is commonly employed as a term of imperative obligation. Clark v. Board of Water and Sewer Commissioners of Norwood, 353 Mass. 708, 710 (1968); Johnson v. District Attorney for the Northern District, 342 Mass. 212, 215 (1961). The statute grants you plenary power, therefore, to establish regula- tions for use of state-owned motor vehicles. While the Legislature has expressed a firm intention that regulations govern- ing the use of state-owned motor vehicles be established, it has not given clear guidance for determining the scope of the application of the regulations. Several factors preclude an affirmative response to your question asking whether all state government units must comply with the regulations. Section 36 does not provide that the use of state-owned motor vehicles by all units of state government should be in accordance with the regulations you promulgate. It merely directs that every state office or department keep a record of the use of state-owned motor vehicles and make reports relating to the use of these vehicles, as may be required by the regulations. This language falls far short of a blanket requirement that the use of state-owned motor vehicles by all state government units must conform to the regulations you establish, which regulations will govern matters other than keeping records and making reports. This conclusion is supported by the legislative history of Section 36, which P.D. 14 127 the Legislature substantially altered in 1973. St. 1973, c. 1230, §14. For the twelve years preceding this revision, each of the annual appropriations acts adopted by the Legislature contained a provision directing that "|a|ll use of state-owned motor vehicles shall be subject to regulations to be promulgated and enforced by the commissioner of administration." See, e.^., St. 1962 c 591, §5; St. 1964, c. 337, §5; St. 1968, c. 380, §5; St. 1972. c' 514. §5. When the Legislature decided to give this provision a permanent location in the Gen- eral Laws, however, it discarded the term "all use" and chose to employ the language now appearing in Section 36. Rather than indicating an intention that the motor vehicle use regulations have a comprehensive application to all state government units, the Legislature retreated from its earlier, more strongly worded directive when it created Section 36.' Further evidence that the state-owned motor vehicle use regulations will not govern the use of state vehicles by all state government units may be found in St. 1973, c. 1230. §31. which expressly excludes all public institutions of higher learning from compliance with the provisions of Section 36. The organic statutes of other state agencies or departments may conceivably contain similar provisions governing the use of state-owned motor vehicles by those agencies. A determination of the full extent of your statutory authority would, therefore, require an exhaustive search of the General Laws, which 1 must respectfully decline to undertake.'^ Section 36 contains no language that would permit the regulations you promulgate to supersede authority that may exist in other offices or departments of the Commonwealth. I conclude, therefore, that your authority to require all state government units, except public institutions of higher learning, to comply with the regula- tions is not clearly established. Although Section 36 empowers you to promul- gate regulations for the use of state-owned motor vehicles, the scope of the application of these regulations to state agencies is beyond any firm determina- tion. Therefore, the motor vehicle use regulations which you promulgate will not be applicable to public institutions of higher learning and may also not be enforceable against offices or departments whose organic statutes contain provi- sions governing the use of state-owned motor vehicles. Your second question asks whether you may enforce the regulations you issue pursuant to G.L. c. 30, §36, by imposing sanctions upon state employees for non-complying use of state-owned motor vehicles. To resolve this issue, one need go no further than the statute itself. Section 36 provides in relevant part: The commissioner of administration shall establish and enforce regulations governing the use and marking of motor vehicles owned by the Commonwealth. (Emphasis added.) Section 36 goes on to expressly prohibit the use of state-owned vehicles for transportation between an employee's domicile and place of employment and the incurring of any garaging expense without prior approval and in accordance with the regulations. Clearly, the Legislature sought to preclude the use of state-owned vehicles except where necessary for the conduct of state business. Instead of describing 'a careful review of the early legislative history pertaining to Section ib affords no assistance for detcnnining the legislative rationale for employing the language used therein. See the original bill and accompanying documents. State Archives. Room .SO. Slate House. '^If conflicting authority does exist. G.L. c. 30. §5. provides an appropriate mechanism for resolving any dispute which may arise. 128 P.D. 14 the conditions under which state vehicles might be used and providing for the enforcement of those conditions, the Legislature imposed a dual duty upon the Commissioner to both fill in the details of the legislative policy by appropriate regulations and enforce such regulations. The ordinary meaning of "enforce" is "to compel obedience to." Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486, 491 (1964); Commissioner of Public Health v. Board of Health of Tewksbury, 350 Mass. 507, 509 (1966). Thus, under Sec- tion 36, you have a duty to compel obedience to or compliance with any regulations you may issue relative to the use of state-owned vehicles. In general, where such a specific duty is imposed upon an administrative officer, he "in the absence of some statutory limitation [has] authority to em- ploy all ordinary means reasonably necessary ... for the faithful performance of the duty." Bureau of Old Age Assistance of Natick v. Commissioner of Public Welfare, 326 Mass. 121, 124 (1950). Because the imposition of sanc- tions is an ordinary and usual means of compelling compliance with regula- tions, 1 conclude that you do have authority under Section 36 to impose reason- able sanctions upon state employees for use of motor vehicles not in compliance with duly promulgated and reasonable regulations. The only limitations on your ability to impose sanctions are those expressed or implied in the statute itself. Id. Thus the seriousness of the penalty must be commensurate with the seriousness of the violation, Commonwealth v. Racine, 372 Mass. 631, 635-39 (1977), and the sanction itself must be "reasonably related to the purposes of the enabling legislation." Consolidated Cigar Corp. V. Department of Public Health, 372 Mass. 844, 855 (1977). Moreover, Mass- achusetts courts have generally been reluctant to infer from an administrator's rulemaking authority an ability to impose criminal sanctions. Such a power is not lightly held to be delegated by the Legislature to an administrative body, although the Supreme Judicial Court has upheld such delegations where the enabling statute defines the limits of the agency's discretion to impose such penalties. Cf., e.g.. Commonwealth v. Diaz, 326 Mass. 525, 529 (1950) (stat- ute empowered commissioner to provide penalties for violation of regulations "not exceeding five hundred dollars for any one offence"); Commonwealth v. Plaisted, 148 Mass. 375, 380 (1889) (authorization to prescribe penalties "not exceeding twenty dollars for each offence" upheld); Commonwealth v. Rice, Ibl Mass. 340, 344 (1927) (statute authorizing cities and towns to prescribe penalties not exceeding $20 for the violation of ordinances regulating carriages and vehicles). Because Section 36 does not specifically delegate such a tightly circumscribed authority to impose punitive sanctions, I conclude that criminal penalties are beyond your rulemaking authority. 1 turn now to the specific types of sanctions about which you have inquired. Your first suggestion, a charge to the employee for each unauthorized mile travelled, may be justified under analogous principles of conversion. If a state employee diverts to his personal use a state-owned motor vehicle without author- ization, he is liable to the Commonwealth for the value of the use of that motor vehicle as he would be to any owner whose automobile he converted and then returned. See George v. Coolidge Bank and Trust Co., 360 Mass. 635, 641 (1971) (if owner accepts converted property "he may recover as damages the difference between the value of the property when converted and when returned, plus damages for loss of use during the period of wrongful detention"). P.D. 14 129 Your second suggestion would add to a charge for each unauthorized mile travelled, a "reasonable fine." The imposition of a fine, which is punitive in nature, may amount to a criminal sanction which, because Section 36 does not provide adequte guidelines, could not be upheld. If the "fine" were more in the nature of a "fee" factually related to some legitimate administrative expense incurred as a result of the unauthorized use. it would fall within the ambit of your Section 36 rulemaking authority. Your third suggestion, imposition of disciplinary action on the employee, amounts to nothing more than deeming unauthorized use of a motor vehicle to be "just cause" for discipline under G.L. c. 31. §41 (for employees holding permanent civil service status) or a ground for discipline under the lesser stan- dard applicable to non-tenured employees. Clearly, violation of a duly promul- gated and constitutionally valid regulation governing behavior and conduct of public employees may be sufficient cause for discipline. Board of Selectmen of Framingham v. Civil Service Commission, Mass. App. Ct. Adv. Sh. (1979) 704, 715 Disciplinary action, however, must be initiated by the employee's appointing authority, and, as with the other sanctions discussed above, must be imposed in accordance with applicable statutory procedures and constitutional standards due of process. In summary, I conclude that you may employ all ordinary means of enforcing the vehicle use regulations, including the imposition of non-criminal sanction, commensurate with the seriousness of the offense, and applied under procedures comporting with appropriate due process standards. Very truly yours, FRANCIS X. BELLOTTI Attorney General