Number 3 August 1, 1980

Number 3 August 1, 1980 Robert E. Sheehan Comptroller of the Commonwealth One Ashburton Place Boston, MA 02108 Dear Mr. Sheehan: You have requested my opinion whether it is a violation of General Laws chapter 30, section 21, for an individual to receive payment for services rendered as an employee of an agency of the Commonwealth, when that individual is also being paid as an employee in the court system of the Commonwealth. Your question arises because the expenses of the judicial branch, including personnel costs, were formerly paid by the counties, but are P.D. ,2 ,Q, now paid by the Commonwealth pursuant to the Court Reform Act G L c 29A §§1 et seq. as added by St. 1978, c. 478, §12.1. Consequently, many mdividuals who formerly received one salary from the Commonwealth and a second from a county, now find themselves on two Commonwealth payrolls and potentially liable for violating G.L. c. 30, §21 . Although your request included a list of named employees currently receiving pay simultaneously from two separate state agencies, I must respectfully decline to make mdividual determinations based upon specific cases, since this necessarily involves determinations of facts, which the Attorney General has traditionally refrained from making. I do, however, conclude that it is a violation of G.L. c. 30, §21, for salaried employees of the Commonwealth who are also salaried employees in the judicial system to continue to receive two salaries. In addition, I take this opportunity to offer general guidelines to assist your office in reviewing potential violations of the statute prior to submitting them to me for enforcement. Your inquiry in this regard requires a construction of G.L. c. 30, §21, which provides: "A person shall not at the same time receive more than one salary from the treasury of the Commonwealth." In order to determine whether there has been a statutory violation, you must first ascertain whether the employee is receiving a "salary" or a "wage". If the person receives compensation other than "salary", neither G.L. c. 29, §31 ("salaries payable by the Commonwealth . . . shall be in full for all services rendered to the Commonwealth by the persons to whom they are paid."), nor c. 30, §21, has any application. For this purpose, one of my predecessors in office has formulated the following test: (Salary) is limited to compensation established on an annual or periodical basis and paid usually in installments, at stated intervals, upon the stipulated per annum compensation. It differs from the payment of a wage in that in the usual cases wages are established upon the basis of employment for a shorter term, usually by the day or week or on the so-called "piece work" basis and are more frequently subject to deductions for loss of time. 5 Op. Atty. Gen. at 699, 700 (1920). If, as tested, the compensation is a "salary". General Laws chapter 30, section 21, would prohibit the receipt of a second "salary" from the Commonwealth. 8 Op. Atty. Gen. at 604 (1929). This is true even though the work of the second office might be done outside the usual working hours of employment of the first office. 7 Op. Atty. Gen. at 330 (1924). Additional compensation may be paid, however, provided that any of the following conditions are met: 1. The compensation to be paid is not a salary but is in the nature of "wages" for special services performed from time to time. 1961 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 91 (1961). 2. The services are rendered only occasionally. 1967/68 Op. Atty. Gen. at 33(1967). 3. The services are performed outside the normal workmg hours of the 102 P.D, 12 salaried personnel. 1955/56 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 43 (1955). 4. The services are not required to be performed as part of their salaried duties. 1967/68 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 33 (1967). 5. No other person is available to perform the services as part of regular duties. 5 Op. Atty. Gen. at 698-699 (1920). I have reviewed the Court Reform Act and have found that it contains no express or implied exemption from the application of G.L. c. 30, §21, for county employees who became state employees as the result of its passage. St. 1978, c. 478. Accordingly it must be construed so as to operate consistently with G.L. c. 31, §21. Commonwealth v. Hayes, 372 Mass. 505, 512 (1977). Cf. Colt V. Fradkin, 361 Mass. 447, 349-50 (1972) (statute is not to be deemed to supersede a prior statute in whole or in part in the absence of express words to that effect or of clear implication). For this reason, you should continue to review the information available to you to determine whether two Common- wealth salaries are currently being paid to these employees. In reviewing the cases that come to your attention, prior to referral to this office for enforcement pursuant to G.L. c. 30, §22, you should ascertain additional facts, as follows: 1 . the scheduled working hours for the employee in each position; 2. whether the positions are full-time or part-time; 3. whether any of the payments involved is attributable to limited services provided to the Commonwealth at times when the employee is not required to be working at his other employment. Any referral should contain a brief recitation of these facts. In sum, it is my opinion that General Laws chapter 30, §21, as construed by my predecessors, applies to those individuals who are employed in the Commonwealth's court system who, prior to passage of the Court Reform Act in 1978, were county employees. Very truly yours, FRANCIS X. BELLOTTI Attorney General