Number 15 February 12, 1981

Number 15 February 12, 1981 George S. Kariotis, Secretary Executive Office ofEconomic Affairs State House, Room 212 Boston, MA 02133 Dear Secretary Kariotis: You have requested my opinion concerning the application of the provisions of the Eighteenth Article of Amendment to the Constitution of the Common- wealth (the so-called Anti-Aid Amendment) to thie proposed activities of the newly created Bay State Skills Commission. You inform me that on September 24, 1980, the Governor issued an Executive Order^ creating the Bay State Skills Commission, a public commission intended to enable and encourage interested "institutions of skills training and education"^' to better respond to employment opportunities presented by business and industry within the Commonwealth. You further inform me that a major function of the Commission is to operate a matching grant program whereby institutions of skills training and education may receive state funded grants in support of programs and activities consistent with employment demand. As chairman of the Commission, you envisage that these grants-in-aid would be made available to independent, post-secondary, non-degree granting institutions. Based on the foregoing, you ask whether the Eighteenth Article of Amendment, which generally restricts the use of state funds to public purposes, proscribes publicly funding grants-in-aid to independent, post-secondary, non-degree granting institutions of skills training and education. It is my opinion that this program does not violate the Anti-Aid Amendment, first, 'Executive Order No. 185, September 24. 1980. ^Although this term is not defined in the Executive Order, you inform me that the phrase "institutions of skills training and education" includes independent colleges, universities and other post-secondary educational institutions which develop and offer courses consistent with the employment demand. P.D. 12 ,35 because the proposed grants-in-aid are permitted bv that express exception of the Amendment for the funding of private higher educational institutions and second, because it does not conflict with the objectives and purposes of the Amendment. The Eighteenth Article of Amendment to the Constitution of the Common- wealth, as amended by the Forty-Sixth and One Hundred and Third Articles of Amendment, provides in part, as follows: No grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the commonwealth or any political subdivision thereof for the purpose of founding, maintain- ing or aiding any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the commonwealth or federal authority or both .... Nothing herein contained shall be construed to prevent the commonwealth frorp making grants-in-aid to private higher educational institutions or to students or parents or guardians of students attending such institutions. By its express terms, the Amendment does not prohibit the Commonwealth, and therefore, the Bay State Skills Commission, from making grants in aid to "private higher educational institutions". Your question is. therefore, directly posited: whether the phrase "private higher educational institutions," as that term is used in the Amendment, includes independent, non-degree granting post-secondary educational institutions. Although the term, "private higher educational instituions" is not defined, it is my opinion that independent, post-secondary, non-degree granting institutions are included in that term and therefore fall within that exception to the Anti-Aid Amendment carved out by the 103rd Amendment to the Constitution of the Commonwealth. In resolving the central issue presented by your question, i.e., whether the proposed grant-in-aid program exceeds the boundaries established by the Anti-Aid Amendment, I first survey the history and purposes of the Amend- ment, guided by the cardinal rule of constitutional interpretation that provisions of a constitutional amendment are to be construed in the sense most obvious to the common intelligence so as to accomplish a reasonable result and achieve its dominant purposes. Opinion of the Justices, 365 Ma.ss. 655, 657 (1974). See also Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 199 (1976). As adopted in 1855, Article 18 of the Amendments contained general and "rather uncertain language," Bloom v. School Committee ofSprinifieUL Mass. Adv. Sh. (1978) 2110, 2113, concerning the use of public money for private schools. Growing public dissatisfaction with that Article 18,' see, e.g.. Opinion of the Justices, 214 Mass. 599, 601 (1913). resulted in consideration by the Constitutional Convention of 1917 of an amendment which would prohibit the expenditure of public funds for private purposes altogether. Bloom v. School 3There were repeated efforts m the legislature, from 1900 to 1916. to rev.se Article '« '^ '^'// °~ *"^^,^'f;'' "'* """"" to the Constitutional Convention. R.L. Bndgman, The Massachuseiis Consniuiwnal Canvrnnon of 1917. .1! (192.1) 140 P.D. 12 Committee of Springfield, supra, Mass. Adv. Sh. (1978) at 2113. Article 46, which emerged from the Debates at that Convention, contained an absolute prohibition against the use of public funds for any non-public educational institution. The objectives of the amendment were twofold: to clearly prohibit public support for religious schools and institutions and to prohibit such aid to non-sectarian schools. Bloom v. School Committee of Springfield, supra, Mass. Adv. Sh. (1978) at 2114; Opinion of the Justices, 357 Mass. 836, 343-844 (1970); Opinion of the Justices, 354 Mass. 779, 784 (1968). See also Comments of Mr. Barnes of Weymouth, 1 Debates, Massachusetts Constitu- tional Convention 1917-1918, 157-158 (1917). The amendment's broad prohibition, provoked in part by the fact that public aid had in select instances been provided to private schools, had as its purpose the protection of state and municipal treasuries from increasing pressure by religious and other interest groups in search of appropriations. Second, the amendment sought to prohibit those appropriations which had been made upon a political basis or upon individual need, rather than upon a "wide survey of the needs of the state." Comments of Mr. Anderson of Newton, 1 Debates, Massachusetts Constitu- tional Convention 1917-1918, 167(1917). In 1974, a final revision of the Anti-Aid Amendment occurred with the passage of Article 103 by the electorate. For purposes of this opinion. Article 103 resulted in two relevant modifications to Article 18. First, prohibitory language in the opening clause of the 1917 version ["All moneys . . . shall be applied to, and expended in, no other schools than those . . . under the order and superintendence of the authorities of the town or city in which the money is expended"] was stricken. In its place, the 103rd Amendment employed the language that: "No grant ... or use of public money . . . shall be made or authorized ... for the purpose of founding, maintaining, or aiding any . . . primary or secondary school." Of primary significance, however. Article 103 carved out an exception for private higher educational institutions and students attending those institutions." This exception was designed to address the severely depressed financial condition of private higher education institutions and the resulting adverse impact upon educational opportunities in the Commonwealth. This adverse impact included additional fiscal burdens upon public higher education if substantial numbers of private colleges and universities in the Commonwealth were required for these financial reasons to reduce their classrooms or close. It is in light of this historical background of Article 18 that 1 conclude that the proposed matching grant program does not violate the Anti-aid Amendment because independent, post-secondary, non-degree granting institutions are included in the "private higher educational institution" exception carved out by the 103rd Amendment to Article 18. As 1 have stated previously, prior to the 103rd Amendment, the Eighteenth Amendment provided that public funds could not be used to aid any "school. •See Election Statistics, Public Doc. No. 43, at 513-518 (1974), and Summary of Question No. 3 regarding the Proposed Constitutional Amendment. ^House No. 6106 — Legislative Research Council, Report Relative to State Aid to Private Higher Educational Institutions and Students, 8-17(1973). P.D. 12 ,4, or college, infirmary, hospital, institution, or educational, charitable or religious undertaking which is not publicly owned." In 1967. the Attorney General opined to the Board of Higher Education that this terminology proscribed the use of public moneys in support of an independent, post- secondary, non-degree institution where the intended recipient was an "edu- cational or charitable undertaking". 1966/67 Op. Atty. Gen. No. 97. Rep A.G., Public Doc. No. 12 at 188, 189 (1967). The 103rd Amendment deleted the broad term "educational" from the proscriptive language. It further defined the term "school" as a primary and secondary institution and provided that funds could be used in support of "higher educational institutions"." This comprehensive redrafting of the language of the Eighteenth Article of Amendment is significant because the phrase "higher educational institutions" is a phrase far broader than the term "college" or "university" and thereby evidences an intent that public funds may be used to aid post-secondary, non-degree institutions.' There is a second reason for my conclusion that the proposed matching grant program of the Commission does not violate the Anti-Aid Amendment. Based upon the information which you have provided me, I am of the opinion that the expenditure of funds by, and activities of, the Commission are valid public purposes which do not conflict with the objectives and purposes of the Amendment. In considering claims arising under the Anti-Aid Amendment, the Supreme Judicial Court has indicated that three criteria are appropriate. Kent v. Commissioner of Education, Mass. Adv. Sh. (1980) 803, 809-810 n. 1 1 . Thus, no violation of the core prohibition of the amendment will exist if the matching grants program of the Commission meets the following tests: (1) its purpose is not to aid private schools; (2) it does not in fact substantially aid such schools; and (3) it avoids the political and economic abuses which prompted the passage of Article 46. Kent v. Commissioner of Education, id., quoting from Colo v. Treasurer and Receiver General. Mass. Adv. Sh. (1979) 1893, 1903-04.« Applying these criteria to the facts as you have presented them to me. I conclude that the proposed grant-in-aid program does not contravene the provisions of Article 18 of the Amendments to the Massachusetts Constitution for the following reasons. . . First it is clear that the purpose of the Bay State Skills Commission is not to aid private schools. Instead, the Executive Order indicates recognition of «Ino.e,ha.U,e ma.ch.ng gran, program .s .o be ava,lable .o both publ.c -^.P-- --^'jr^-'J^^^^^^^^ ^"^ SWhne each of ^ese cn.ena are no. -p.cse ,in,,.s ^^^^^l^^^^lf^.^^^^^^lr^^^^ . . .• (Emphasis added.) Article 103 of the Amendments. 142 P.D. 12 a general unemployment crisis caused by the existing availability of employ- ment opportunities in commerce, trade, and manufacturing, but a corresponding inadequate number of trained and educated citizens to take advantage of these opportunities. The purpose of the matching grant program is to confront this dilemma by increasing the training opportunities among the institutions of skills training and education. It seeks, through a matching grant system, to encourage institutions of skills training and education to provide those programs which can ensure that existing and future employment opportunities in commerce, trade and manufacturing are filled. Thus, the ultimate purpose of the program is to alleviate unemployment in the Commonwealth and the alleviation of unemployment is clearly a public purpose. Opinion of the Justices, 368 Mass. 880, 885 (1975). Public monies to be expended in the form of grants-in-aid would not, therefore, be used for the purpose of founding, maintaining, or aiding private schools.^ Second, and for the same reasons, the proposed grant-in-aid program does not substantially aid private schools. Because the skills training and educational institutions must themselves provide at least half the money for these programs, any evidence of substantial aid to private schools is absent. Moreover, this factor makes it highly unlikely that the funding from the Commission would be substantial when compared to the overall funding for other programs offered by those educational institutions. Third, the proposed matching grant program does not raise the spectre of the political and economic abuses existing at the time of the 1917 Constitutional Convention and which the Anti-Aid Amendment seeks to avoid. The Executive Order sets out a detailed scheme whereby the Commission, prior to making a grant, is required to collect data to ascertain the need for persons trained in the area of commerce, trade and manufacturing. The Commission is also required to monitor the activities, capacities and resource requirements of institutions of skills training and education to meet the demand for training and educational skills. Therefore, because of this oversight function by the Commission, any possibility of political or economic abuse is significantly lessened. For the foregoing reasons, I conclude that the Bay State Skills Commission may, without violating the Anti-Aid Amendment, make matching grants to post-secondary non-degree granting institutions of skills training and education. Very truly yours, FRANCIS X. BELLOTTI Attorney General 'By further analogy to the Supreme Judicial Court's "public purpose" cases a similar result is evident. In these cases, statutes which involve expenditures of public monies are examined to determine if their purpose is to further a valid public rather than private purpose. The paramount test for determining whether an expenditure is for such a public purpose is "whether the expenditure confers a direct public benefit of a reasonably general character ... to a significant part of the public, as distinguished from a remote and theoretical benefit". Opinion of the Justices, 337 Mass. 777, 781 (1958); An expenditure for a public purpose is constitutionally permissible. See Mass. Home Mortgage Financing Agency v. New England Merchants National Bank, Mass. Adv. Sh. (1978) 2909; Opinion of the Justices, 368 Mass. 880, 885 (\915),'Opinion of the Justices, 359 Mass. 769, 772 (1971); Opinion of the Justices, 337 Mass. 777, 781 (1958). P.D. 12 ,^3 Number 16 .- , -^ ,„.,. March 26. 1981 William F. M. Hicks, Commissioner Department of Environmental Management 100 Cambridge Street - 20th Floor Boston, MA 02202 Dear Commissioner Hicks: Your predecessor in office has requested my opinion regarding certain terms of an Agreement entered into September 22, 1980, between the Depanment of Environmental Management and the Town of Mashpee for the purpose of allowing the Commonwealth to acquire land currently belonging to the Town as part of the process of constructing the South Cape State Park. My understanding of the applicable facts and statutes underlying the proposed transfer is as follows: Chapter 1058 of the Acts of 1971 authorized the Department of Natural Resources' to acquire the land necessary to make up the South Cape Beach Park by gift, purchase or eminent domain, excepting, however, land owned by the Town of Mashpee which the statute provided could not be acquired by eminent domain. Chapter 283 of the Acts of 1976 amended St. 1971. c. 1058, to provide that the Commonwealth could exercise eminent domain powers over Mashpee land with the approval of the Board of Selectmen of the Town.' An agreement between the Town and the Department was reached in July. 1976, in which the South Cape Beach Advisory Com.mittee was formed and given the responsibility for advising the Department regarding the proposed park. Acquisition of Town land was delayed, however, because of concern over the litigation by the Wampanoag Indians against the Town of Mashpee. which affected conveyancing in Mashpee for several years. Following the resolution of the Wampanoag litigation, negotiations resumed between the Department and the Town, resulting in the Agreement of September 22, 1980, which has been submitted to a Town vote and accepted. It is the terms of this Agreement which are the subject of this opinion.* You ask whether the provisions of paragraphs (3) and (6) of that Agreement are permissible under the Constitution and laws of the Commonwealth. Paragraph (3) provides that the rules and regulations of the park will conform to the rules, regulations and by-laws of the Town of Mashpee. Paragraph (6) provides for a right of reversion to the Town in the event of breach of any conditions of the Agreement. Specifically, you ask, first, whether the Department may submit the regulation of activities in state parks to existing and prospective local ordinances or by-laws of the municipalities in which such parks are kxated. Second, you ask whether the Department may acquire land for the purposes 'By St. 1975, c. 706, §33, certain functions of the Department of Natural Resources, including those here in issue, were transferred to the Department of Environmental Management. ^The legislature also appropriated that year the amount of $1.5 million for the acquisition of that land, developmeni of vinou» outdoor recreation and conservation areas, and other costs connected with that acquisition and development St 1976. c 481, §4, item 2120-8777. ^Paragraph (20) of the Agreement provides that all terms and provisions thereof are subject to an advisory opinion of the Allomey General and grants to the Town the option to terminate the Agreement if any provision of the Agreement is nd fully »pproved by the Attorney General. 144 P.D. 12 set forth in Article 97 of the Amendments to the Constitution of Massachusetts by a deed containing a right of reversion of said lands to the grantor in the event of breach of covenant on the part of the Commonwealth. For the reasons set forth below, I conclude that the Department may submit the regulation of activities in state parks to existing local ordinances or by-laws of the municipalities in which such parks are located. With respect to prospective local ordinances and by-laws, however, it may do so only when the legislature approves such submission by a two-thirds vote, as required by Article 97 of the Amendments to the Constitution.^ I must respectfully decline, however, to render an answer to your second question. I do so in view of the fact that paragraph (6) of the Agreement between the Department and the Town provides me with the discretion to disapprove the deed from the Town to the Department and paragraph (20) makes the acceptance of the Agreement by the Town also subject to my approval.' Contemporaneously with this opinion, I have this day informed you of my reservations concerning the terms of paragraph (6) of the Agreement. Because I have thus stated my disapproval of paragraph (6), it is inappropriate for me to render an opinion concerning its legality.*^ Your first question requires an analysis of paragraph (3) of the Agreement, which provides: (3) That the Department will manage the fragile wetland, dune and upland areas of the site to prevent erosion and to preserve critical habitat and the area's natural scenic qualities. Local ordinances and by-laws now effective will be incorporated into and made part of the park's rules and regulations and shall govern and control, provided no legal conflict exists. No park rule or regulation will permit an activity or use otherwise prohibited by the rules, regulations and bylaws of the Town of Mashpee.^ Thus, as that paragraph itself provides, your question appears to present two issues for resolution: (1) whether the Department may promulgate park rules and regulations which conform to Town ordinances and by-laws in existence as of the date of the Agreement; and (2) whether the Department may agree that park rules and regulations will conform to future rules, regulations and by-laws of the Town. "•l note that subsequent to the request for this Opinion, the Department has filed proposed legislation relative to the acqusition of the South Cape Beach. H. 1706. Section 2 of that bill provides in pertinent part: "All such lands shall be used by the department of environmental management and the town of Mashpee only in accordance with said agreement [between the Town and the Department] . ' ' ^In addition, section 2 of H. 1076 provides in part: "'The department of environmental management reserves the right to transfer title, or lesser interest in land acquired for recreation or conservation purposes pursuant to item 2120-8777 in section 4 of chapter 481 of the acts of 1976, to the town of Mashpee without further authorization, provided that the agreement relative to the use of such land executed between the department of environmental management and the town of Mashpee is approved by the attorney general. The town of Mashpee may transfer title, or lesser interest in, land used for recreation or conservation purposes to the department of environmental management without further authorization, subject lo said agreement approved by the attorney general." ^As I have staled in my disapproval, the provision for a right of reversion to the Town, viewed m light of the requirement that activities within the proposed park be subject to prospective local by-laws, presents the possibility that breach of the conditions of the Agreement may be solely within the control of the Town. I have grave doubts that even with prior legislative approval by two-thirds vote, the nght of reversion of state-owned lands in such circumstances is permitted by Article 97. To the extent that discretion is vested in me to approve or disapprove the proposed transaction, I exercise that discretion by disapproval. Thus. it is unnecessary for me to reach the legal issue you have raised. 'I note that the requirements of this paragraph of the Agreement will apply not merely to land acquired from the Town, but to the entirety of the park, including land taken or otherwise acquired from private ownership. P.D. 12 ,45 As to those town ordinances and by-laws in effect as of the date of the Agreement, the Department has the discretion to determine whether that regulation of activities within the proposed park is consistent with the Commonwealth's policy of conservation and recreation. See Op Atty Gen Rep. A.G., Pub. Doc. No. 12 at 335, 337 (1966). General Laws chapter 132a! Section 7, gives the Commissioner of Environmental Management broad power to promulgate rules and regulations governing the use of propeny controlled by the Department, subject to the approval of the Governor and Council. General Laws chapter 21, section 4A, gives similar power to the Director of the Division of Forest and Parks, subject to the approval of the Commissioner. Thus, the Department may promulgate rules and regulations governing activities within the park which conform to existing Town ordinances and by-laws, provided, however, that the Department reserves its control over the property, as well as its right to enact restrictions more stringent than those enacted by the Town. Paragraph (3) also binds the Department to those rules, regulations and by-laws which the Town enacts in the future. Certainly as to the future regulation of activities within, and use of, the proposed park, the Department is unable at this time to determine that prohibitions or restrictions upon use which the Town may enact will be consistent with the purposes for which the Department holds the land. Because such a determination is entirely specula- tive, more is required than the mere acquiescence by the Commissioner to the terms of this Agreement.** The general rule is that in the absence of statutory provisions to the contrary, the Commonwealth and its agents are immune from municipal regulations when acting in pursuance of a public function on land owned by the Commonwealth. County Commissioners of Bristol v. Conserx'ation Commission of Dartmouth. Mass. Adv. Sh. (1980) 1289, 1291-94; Medford v. Marinucci Bros. & Co., Inc., 344 Mass. 50, 54-58 (1962); Teasdale v. Newell & Snowling Construction Co., 192 Mass. 440 (1906). The legislature may, of course, subject land owned by the Commonwealth to municipal regulation. County Commissioner of Bristol V. Conservation Commission of Dartmouth, supra, 344 Mass. at 57. Such legislative action, however, must be by specific statutory language. Id.- I am, moreover, of the opinion that Article 97 of the Amendments to the Massachusetts Constitution requires that such legislative action be by two-thirds vote. Article 97 provides: The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. 8While the Commonwealth may exercise its police powers over property held in irxisl for the public. "°"" l"'.\*'^*[r"l\ Col~Z 202 Mass. 422. 435 (1909rit is^ssible for |heTown "'="?';' '^^.^"nubr.^^' use of the p«t .h^h are inconsistent with the duty of the Depanment. pursuant to G.L. C. 132A. to hold land in the public m.sl. 9l note that H. 1706 does no. include that son of "unmistakable" '?"«"^^=j!;'^'\ *°"'^^,;:' S^^^^^ 'mT^^ See Counn Commissioners of Bristol v. Conserxauon Commission of Dartmouth. Mass. Ad> Sh (1><!I0) l.»v. l.-vo. Met^ora V. Marinucci Bros. & Co.. Inc.. 344 Mass. 50. 57 (1962). 146 P.D. 12 The general court shall have the power to enact legislation necessary or expedient to protect such rights. In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes. Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court. (Emphasis supplied.) The relevant inquiry is whether the regulation of activities within, and uses of, the park by as yet unenacted local ordinances and by-laws is a "disposition" within the purview of Article 97. My predecessor has concluded that "dispositions" for which two-thirds roll-call vote of each branch of the General Court is required include "transfers of legal or physical control between agencies of government, between political subdivisions, and between levels of government, of land, easements and interests therein originally taken or acquired for the purposes stated in Article 97 . . . ." 1972/73 Op. Atty. Gen. No. 45, Rep. A.G., Pub. Doc. No. 12 at 139, 144 (1973). In further construing the requirements of Article 97, I have earlier given my opinion to your predecessor that "[ajny relinquishment of physical control over [land held by the Department] would be a disposition and would require a vote of two-thirds of both Legislative branches. The Department cannot, therefore, . . . surrender its duty to police, conserve, preserve, and care for [such land]." 1979/80 Op. Atty. Gen. No. 15, Rep. A.G., Pub. Doc. No. 12 at (1980). Although the Department would retain its enforcement powers within the proposed park, it is nevertheless clear that subjecting the park to as yet unenacted by-laws of the Town of Mashpee is such a surrender by the Department of its duty to regulate the use of that land. "Control" over land is traditionally incident to an interest in land. Cf. Baseball Publishing Co. v. Bruton, 302 Mass. 54, 56 (1938); Gaertner v. Donnelly, 296 Mass. 260, 262 (1936). By rehnquishing this control, the Department would effectively transfer one of the incidents of ownership of this land. Cf. Restatement of Property, §13 (1936). Guided by these standards, I am of the opinion that an agreement to subject the use of state land to the terms of future ordinances and by-laws of the municipalities in which that land is located is a relinquishment of control of such land and, therefore, a "disposition" within the meaning of Article 97.'° The validity of so much of paragraph (3) of the Agreement between the Town and the Department which concerns such future control over the land, depends upon a favorable vote by two-thirds of each branch of the General Court. In addition, the statutory language effecting such a determination must be specific so that the legislative intent is "unmistakable." See County Commission of 'In reaching this conclusion, I am also guided by ihe directive of my predecessor that the scope of application of Article 97 is to be "very broadly construed". 1972/73 Op. Atty. Gen. No. 45, Rep. A.G., Pub. Doc. No. 12 at 139, 142 (1973). P.D. 12 147 Bristol V. Conservation Commission of Dartmouth, supra, Mass. Adv. Sh. (1980) at 1296; Medford Bros. & Co., Inc., supra, 344 Mass. at 57. Very truly yours, FRANCIS X'. BELLOTTl Attorney General