Number 2 July 31, 1980

Number 2 July 31, 1980 Mr. Bradlee E. Gage Chairman of the Board Division of Fisheries and Wildlife Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mr. Gage; You have requested my opinion whether the Board of Fisheries and Wildlife General Laws chapter 31, section 39 (hereinafter, "section 39") presently provides in relevant part: If permanent employees in positions having the same title in a departmental unit are to be separated from such positions because of lack of work or lack of money or abolition of positions, they shall, except as hereinafter provided, be separated from employment according to their seniority . . . and shall be reinstated . . . according to such seniority, so that employees senior in length of service . . . shall be retained the longest and reinstated first .... Nothing in this section shall impair the preference provided for disabled veterans by section twenty-six. General Laws chapter 31, section 26 (hereinafter, "section 26") provides that "|al disabled veteran shall be retained in employment in preference to all other persons, including veterans." P.D. 12 99 may, consistent with its governing statute, give blanket approval to the Division's Director to employ necessary personnel. General Laws chapter 21. section 7F, provides, in pertinent part, that: The director of the division of fisheries and wildlife shall be appointed and may be removed by the board ... and the position shall not be subject to the provisions of chapter 31. The director. subject to the approval of the . . . board, may appoint, without regard for the provisions of chapter 3 1 , an assistant director for non-game and endangered species . . . The director with the approval of the board, may employ such experts, clerks, and other employees from time to time, and for such periods as he may determine to be necessary for its operations. It is my understanding that your question concerns only those appointments made pursuant to the last sentence of G.L. c. 21, §7F, referring to the employment of "such experts, clerks, and other employees' as the director "may determine to be necessary" for the operation of the division. After examining the statutory provisions governing the Division of Fisheries and Wildlife, I have concluded that the Board may not give the Director a blanket approval to make appointments specified in the last sentence of G.L. c. 21, §7F. Rather, the Board must actively approve or disapprove employment candidates as they are recommended by the Director. I base my conclusion both upon the statutory structure of G.L. c. 21, §§7, et. seq., and upon the interrelationship between the Division's appointment process and other statutory procedures governing state employment. On its face, General Laws chapter 21, section 7F, clearly contemplates that the Board will assume some oversight role in the course of hiring personnel for the Division: the director may, under G.L. c. 21, §7F, appoint necessary "experts, clerks, and other employees," but only with the "approval" of the Board. Moreoever, the supervisory role contemplated in G.L. c. 21, §7F, is consistent with the language of G.L. c. 21, §7, which provides generally that "[t]he division of fisheries and wildlife . . . shall be under the supervision and control of the fisheries and wildlife board. In determining the precise nature of the supervisory role intended in G.L. c. 21, §7F, it is significant that employees who are appointed pursuant to the last sentence of §7F are subject to civil service and other laws regulating the state's employment process. With respect to these appointments, state statutes limit such factors as: the amount of money to be expended for the employment of personnel;! ^^^ j^^ jj^igs available;' and the range of candidates from which the appointing authority may choose.' The Board has no supervisory role in these areas. Indeed the only approval function remaining for the Board is one which may be exercised after the Director has recommended candidates trom among the names certified by the Division of Personnel Administration. 'See G.L. c. 29. §27, prohibiting employment of personnel by a state agency -^nless an appropnat.on by .he general court and an allotment by the governor, sufficient to cover the expenses thereof, shall have been maoc. ^See G.L. c. 30. §45. which provides, in peninent part, that "the personnel administrator shall esubl.sh, i^lmmister. «k1 keep current an office and position classification plan and a pay plan of the commonwcaltn. ^See G.L. c. 31, §6. requiring, inter aUa. that each appointment to a civil service position be made only after •ccnif.c.uon from an eUgible list established as the result of a competitive examination .... 100 P.D. 12 In light of these considerations, were the Board to issue the Director a blanket approval on hiring, it would leave the reference by G.L. c. 21, §7F, to Board "approval" virtually meaningless and would dilute the supervisory authority contemplated by G.L. c. 21, §7. Board approval of the Director's appointments is affirmatively required by statute. The Board may not subvert this requirement by issuing a blanket approval in advance of the action to be taken, for to do so would constitute an impermissible delegation of the authority which the legislature has granted. Cf. City of Boston v. Shaw, 42 Mass. 130, 138-139 (1840); Commonwealth v. Howes, 32 Mass. 231, 233 (1834) (where a power and a means of executing the power are expressly set forth in a statute, the power can be exercised in no other way); 1976/77 Op. Atty. Gen. No. 22, Rep. A.G., Pub. Doc. No. 12 at 132, n.l (1976) (re-delegation of a decision-making power conferred by statute is unlawful); 5 Op. Atty. Gen. at 628, 629 (1920) (public officer may not delegate affirmative duties imposed by statute to other individuals or agencies). For all of these reasons, I conclude that the Board may not delegate its authority to approve appointments by granting its Director blanket authority to hire Division personnel. Rather, General Laws chapter 21, section 7F, requires the Board to consider the Director's recommendations and voice either its approval or disapproval in each case. I understand from the materials which you have provided that the Director has made appointments over the years pursuant to votes of the Board which purport to authorize him to employ members of his staff without specific Board approval. I am of the opinion that these appointments have not been made in compliance with the statute and are not, therefore, valid. Until such time as these employees are validly appointed by a specific vote of the Board, they serve in a de facto, as opposed to a de jure capacity. 1979/80 Op. Atty. Gen. No. 4, Rep. A.G., Pub. Doc. No. 12 at (1979). The proper method of validating these appointments is a formal vote of approval by the Board on each of them. Very truly yours, FRANCIS X. BELLOTTI Attorney General