February 14, 1983 Number 8

February 14, 1983 Number 8. His Excellency Michael S. Dukakis Governor of the Commonwealth State House Boston, Massachusetts 02133 Dear Governor Dukakis: In your letter of January 17, you informed me that there were two vacancies on the Massachusetts Port Authority. The statute which created the Authority pro- vides that no more than four of its members shall belong to the same political party. St. 1956, c. 465, §2. In your letter, you informed me that, of the then five mem- bers of the Authority, two are unenroUed in any party, two are enrolled as Democrats, and one is enrolled as a Republican. ' However, four of the members have changed their party affiliations at least once since their appointments, and you have requested my advice concerning the effects of these changes on your future appointments. Specifically, you seek my opinion with respect to the fol- lowing questions: 1 For the purpose of appointing a new member to the Authority, is the Governor to determine the political affiliations of current mem- bers as well as the affiliation of the prospective appointee through appli- cation of G.L. c. 4, §12? 2. How is the determination of political affiliation to be made under G.L. c. 4, §12? 3. May the Governor appoint to the Authority a person who is a member of a particular political party when the present membership of the Authority includes three members who belong to the same party as the proposed appointee, and a fourth member who has changed his affiliation to the same party, where the change has not yet taken effect under G.L. c. 4, §12? infornicd subscquenlly Ihul you ha\c llllcd one viicancv hy appointing a person who is presently unenrollcci 100 P.D. 12 4. What action, if any, should be taken if a member of the Authority changes his political affiliation and, when the change takes effect pur- suant to G.L. c. 4, §12, thereby causes the number of members with the same political affiliation to exceed four? For reasons which I will set out in the balance of this opinion, my answers to these four questions are as follows: First, it is my opinion that the provisions of G.L. c. 4, §12, are applica- ble to sitting members and to the appointee for the purpose of making a proper appointment to the Authority and that the Governor should determine the status of members and the potential appointee by focus- ing on their party affiliation on the day two years prior to the date he makes an appointment. With respect to the third question, it is my opin- ion that the Governor may make an appointment which is proper when made, notwithstanding that an imbalance on the Authority may arise in the future by reason of G.L. c. 4, §12. If such an imbalance does arise, it is the Governor's duty to correct the imbalance, if possible, in subsequent appointments. Since St. 1956, c. 465, §2, states a limi- tation on the Governor's authority, and not a continuing qualification to hold office once an appointment is properly made, no further guber- natorial action need be taken in respect of an imbalance on the Authority. The Massachusetts Port Authority was established in 1956 to operate the Mas- sachusetts Port, the Logan Airport, and the Mystic River Bridge. St. 1956, c. 465, §§1 et seq. Section two of the statute establishes a board of seven individuals to govern the operations of the Authority. Certain provisions concerning the com- position of this Board have prompted your letter. In material part, chapter 465, section 2 of the Acts of 1956 provides that Itlhe Authority shall consist of seven members all of whom shall be appointed by the governor . . . and shall be residents of the common- wealth. Not more than four ofsuch members shall be ofthe same polit- ical party, and shall include persons with extensive experience in the fields of engineering, finance and commerce, and shall include a bona- fide representative of a national or international labor organization . . . (emphasis supplied). Similiar provisions relating to party membership have been enacted with respect to many other boards, commissions, and authorities. See, e.g. , G.L. c. 268B, §2 (Ethics Commission); G.L. c. 161A, §6 (MBTA Board of Directors); G.L. c. 55B, §1 (Ballot Law Commission); G.L. c. 25, §2 (Public Utilities Commission); G.L. c. 23, §15 (Industrial Accident Board); G.L. c. 16, §1 (Public Works Commis- sion); G.L. c. 15, §1H (Council on Education); G.L. c. 10, §23 (Lottery Com- mission); G.L. c. 7, §41 (Civil Service Commission); G.L. c. 6A, §32 (Rate Setting Commission); G.L. c. 6, §§125 (Health and Welfare Commission), 115 (Con- sumers Council), 108 (Mobile Homes Commission), 48 (Racing Commission); 43 (Alcoholic Beverages Control Commission); St. 1952, c. 354, §3 (Turnpike Authority); St. 1968, c. 614, §4 (Educational Facilities Authority). See also G.L. c. 51 , §18 (Board of Registrars to include members from two principal parties); P.D. 12 101 G.L. c. 51, §16A (Board of Election Commissioners to include members from two principal parties). At the least, the provision in section 2 means that, when four members of the Authority belong to the same political party on the date of an appointment, the appointee may not also belong to that party. Your first question, then, is in what manner are the political affiliations of the appointee and members of the Authority to be determined for the purpose of an appointment? You draw my attention to G.L. c. 4, §12, which provides [elstablishment. cancellation or change of enrollment in a political party shall, for the purpose of any law establishing or limiting the num- ber of members of any board, commission or other body who shall or may be members of any political party or the same political party take effect two years thereafter. You ask whether this provision is to be applied to the proposed appointee only or to the members of the Authority as well, when you appoint a new member to the Authority. The answer to this question lies in interpretation of the two statutes "according to the intent of the Legislature ascertained from all [the] words construed by ordi- nary and approved usage of the language, considered in connection with the cause of [the] enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of [the] framers may be effectu- ated." Board ofEducation v. Assessor of Worcester, 368 Mass. 511, 513 (1975), quoting Industrial Fin. Corp. v. State Tax Comm., 367 Mass. 360, 364 (1975). The words of chapter 4, section 12, considered by themselves and together with the words of chapter 465, section 2, do not purport to be applicable only to new appointees. To the contrary, section 12 expressly applies "for the purposes of any law . . . limiting the number of members of any board . . . who shall or may be members ofany political party'' (emphasis supplied). Since the statute expressly refers to the composition of the membership of a board, 1 conclude that it estab- lishes a test which is to be applied to members and potential appointees alike, at least for the purpose of making a proper appointment.^ My conclusion is confirmed by examination of the history of St. 1960, c. 295, which inserted G.L. c. 4, §12, and by consideration of its purpose." Section 12 was inserted in chapter 4 of the General Laws by section 1 of the act.^ Chapter Similar provisions have also been enacted wilh respect to federal commissions. E.g.. 15 U.S.C, *)-053(c) (Consumer Prixluct Safety Commission); 15 U.S.C. S41 (Federal Trade Commission); 2 U.S.C. §437c (Federal Election Commission). Even though section 12 applies to members as well as appointees, it does not of its own force determine when the test is to be used. Section 12 was designed as a guide in interpretmg a variety of statutes establishing boards or commissions. To determine whether the test set up by section 12 is to be used only at the time of an appomiment or all limes as a test of a board's continuing legality or right to act, one must look to the statute that creates the particular board. Section 2 of that act provides that "(tjhis act shall not affect the tenure of any person who, on the effective date of this act, is a member of any board, commission or other body." I take it that this provision was intended to preclude using the new test to reassess the qualifications <» the lime of their uppointmenis of sitting members. Arguably, however, the Legislature had in mind the possibility that members could become disqualified because of a change in affiliation during their tenure. If the purpose of section 2 was to avoid that possibility, the section would be clear evidence that, m general, the affiliations of members as well as appointees would be determined by means of the test set forth in section I , since it cannot be supposed that section 2 was intended to be a useless act. See Insurance Rating Board v. Commissioner of Insurance, 356 Mass. 184 (1969). The original bill would have inserted a new section 17A in chapter 6 of the General Laws Chapter 6 deals generally with boards and commissions in the Executive Department. As originally proposed, the bill provided as follows: [f|or the purpose of determining the eligibility of a person for appointment to any board the number of members whereof of the same political party has been limited by law, any person who has changed his party enrollment shall be deemed to be a member of the political party in which he was enrolled prior to such change for a period equal to the term of the office to which he may be appointed. House No. 253 (1960). 102 P.D. 12 295 was the product of significant redrafting in the Legislature. Originally pro- posed as House No. 253, "An Act Regulating the Appointment of Members of Bi-Partisan Boards, So Called," It was amended by substitution of House No. 2616 in accordance with a report of the Committee on Bills in the Third Reading. The substitute bill retained the original caption and provided that [alny person who has changed his party enrollment shall, for a period of two years from the date of such change, be deemed to be a mem- ber of the political party in which he was enrolled prior thereto, for the purpose of determining his eligibility for appointment to a board whereon the number of members of the same political party has been limited by law (emphasis supplied). The bill was passed by the House. However, the Senate substituted a new bill. Senate No. 470, which was returned to and passed by the House. As finally enacted, the bill was captioned "An Act Relative to the Effective Date of Establishment, Cancellation or Change of Enrollment in Cases Affecting the Membership of Bi- Partisan Boards, So Called." Comparison of St. 1960, c. 295, §1, with the bill just quoted will show that while House No. 2616 clearly established a rule applica- ble only to potential appointees, the enacted substitute contains no such limitation. The changes in the captions of the various bills show a similar shift in emphasis from the appointee to the members. It follows that the act applies both to sitting members and to appointees. The effect, and by inference the purpose, of the drafts and the act seems clear. Under all versions of the act, an applicant for appointment to a bi-partisan board, so called,^ who was ineligible because of his affiliation could not make himself eligible by changing or cancelling his party enrollment. The enacted version more perfectly accomplishes this result because it also prevents a sitting member from rendering a potential appointee eligible (or ineligible) by changing his own party affiliation. For these reasons, I conclude that, when making an appointment to the Authority, you are to determine its political composition by applying the provisions of chap- ter 4, section 12, to each member and to the potential appointee. The second question is, how is political affiliation to be determined under G.L. c. 4, §12? There are two viable alternative interpretations of section 12. The first would hold that every change in affiliation is simply postponed for two years; or put another way, that potential appointees and members are considered to belong to the political party, if any, in which they were enrolled on the day two years prior to the date of the proposed appointment. The second interpretation would hold that a change in affiliadon is to be considered effective if and only if the mem- ber or appointee has retained the new affiliation (or has remained unenrolled) con- tinuously for two years. Thus, to determine a person's affiliation, you would be required to search his enrollment record for the most recent two-year period dur- ing which he was continuously enrolled in a party or unenrolled. * Since the Authority's statue does not require that members be drawn from the two principal parties, it is not formally accurate to call the Authority bi-partisan. Own/'"'"'' G.L. c. 51 . §tjl6A. 18 (members to be drawn from two principal parlies). Moreover, while that term may once have been accurate in practice, it is no longer so. This is because of the ease with which a person may enroll and cancel his enrollment. G.L. c. 53, §§37, 38. It is well known that large numbers of voters enroll only to vote in a parly primary, but do not maintain their enrollment. Thus, it is possible and practicable lo appoint a board whose members technically comply with the provision thai no more than a majority may belong to the same parly , but who all share the same political outlook. The phenomenon of short-term enrollment makes application of G.L. c. 4,§I2, particularly dilficult and may ultimately require a legislative solution. I note that a proposal to amend G.L c. 4, §12, is now pending in the General Court. See footnote 10. infra. P.D. 12 103 Both interpretations are consistent with the Legislature's purpose to neutralize opportunistic changes in affiliation by members or by the proposed appointee. Beyond that point each view has its advantages and disadvantages. Considerations favoring the first view are that it is consistent with a straightforward reading of section 12, and it is the only conceivable reading of the earlier drafts of the Act. Moreover, it is my understanding that your predecessors have consistently fol- lowed this view rather than its alternative. This consistent practice is entitled to considerable weight. See, e.g., Lowell Gas Co. v. Commissioner of Corporations and Taxation, 311 Mass. 255 (1979). This principle is especially true where rejec- tion of that practice could cast doubt on the validity of the many appointments to which section 12 applies. There are certain practical advantages to the second interpretation, however. First, the evolution of section 12 indicates a shift in emphasis by the Legislature. In earlier drafts, affiliation was determined by reference to affiliation prior to any change; in the enacted version, the emphasis is on when a change is to be consi- dered effective. Such a substantial change in emphasis may suggest that the test of affiliation set forth in earlier drafts is not the test finally adopted. Second, this alternative view of section 12 would seem to provide a more reliable test of polit- ical affiliation than does the first alternative.'' Having in mind that section 12 was enacted as an aid in the interpretation of statutes "establishing or limiting the num- ber of members of any board . . . who shall or may be members of . . . the same political party," a test which determines affiliation on the basis of one's enroll- ment over a period of time may seem more consonant with that function than a test which is based upon the fortuity of affiliation on a single day two years before the appointment.^ 5^^ generally Lexington v. Bedford, 378 Mass. 562, 570 (1979) (of two possible constructions, that which leads to a logical and sensible result is to be preferred). However, since I cannot say that the words of section 12 clearly favor this second interpretation, I am constrained to adopt the first alternative, thus giving due weight to the literal wording of the statute and prior administrative readings of its terms. You will note that the choice which I have outlined is significant because of the ease with which party affiliation can be cancelled or changed. See G.L. c. 53, §§37, 38. It seems likely that when the Legislature enacted G.L. c. 4, §12, short-term enrollment, e.g., for the purpose of voting in a party primary, was not the widespread phenomenon that it has become. See Opinion ofthe Justices, 385 Mass. 1201 (1982). Because the difficulty in determining the correct applicafion of see- However, while ihK teM might be thought appropriate for statues hiniting the number of members who may belong to the same party, it might be thought inappropriate for those statutes requiring representation from the two principal parties E.g., G.L. c.51, §I6A. 18. In the latter class of statutes, a stricter test—actual current affiliation— would seem to have been intended. The use of a probationary period to test the authenticity of an affiliation is by no means unusual. See, e.g.. Storer v. Brown, 415 U.S. 724 (1974). On the other hand, since a long probationary period is not used for purposes of voting In party primaries or of running for office as a party's candidate, it may seem unlikely that such a test was intended by section 12. Of course, by the terms of section 12. whichever test you adopt is to be used only for the purpose of making an appointment, it does not affect the right to establish, cancel, or change enrollment for the purposes of voting or running for office See G.L, c 52, §§37, 38, 48, 104 P.D. 12 tion 12 is largely the result of this recent phenomenon, it may be advisable to pro- pose a legislative resolution in the light of present circumstances. '° Your third question asks whether you may appoint a person who belongs to the same party as three members of the Authority, when, because of a change in affili- ation by a fourth member which will take effect in the future by virtue of G.L. c. 4, §12, an imbalance in the membership will result. There are two answers to this question. First, section 12 was enacted in part for the purpose of enabling an appointment to be made despite a recent change in party enrollment by a sitting member. Were the Governor required to take into account the possibility that the change might become effective in the future, thereby imbalancing the Authority, section 12 would have failed in its purpose. Second, as my answer to the last question will demonstrate, the imbalance hypothesized in the question is not inconsistent with the statute and may be remedied in part by future appointments. Accordingly, I answer your third question with a quali- fied "yes" and turn to consideration of your related fourth inquiry. This last question asks what action should be taken if a sitting member changes his affiliation and thereby causes the number of members who belong to the same party to exceed four. A short answer to your question is that, under St. 1956, c. 465, §2, the only action which the Governor may take is to redress the imbalance through subsequent appointments. But I will go further, because both your third and fourth questions reflect concern that an imbalance of this sort violates the stat- ute and could therefore cast doubt on the validity of action by the Authority. If this were so, the Governor could not afford to make an appointment that might result in a future imbalance. The resolution of this problem is to be found, not in G.L. c, 4, §12, which is simply an interpretive aid, but in St. 1956, c. 465, §2, and it turns upon whether the statute sets forth qualifications to hold office, or limitations on the Governor's power to appoint members to the Authority. ' ' If the former, then one or more mem- bers could be disqualified during their terms by a change in affiliation; if the lat- ter, then as long as the members have been properly appointed, it is of no concern that an imbalance may arise during their tenure. In my opinion, the question is answered straightforwardly by the words of the statute taken in their context. The statute does not state that each member shall have certain specific qualifications; it describes the Authority as having seven mem- bers appointed by the Governor. Among these seven, not more than four shall be of the same party, and the seven "shall include persons with extensive experience" in various fields. Plainly, the statute describes the composition of the Authority. Such qualities as "experience" are not easily viewed as continuing qualifications. If a member has extensive experience in engineering when he is appointed, he will not lose it during his tenure. Furthermore, if the Authority does not conform to I ndic ihal J pclilion has been filed by the Secretary of the Coninionwealth and others for further amendment of section 12 The petition proposes the addition of the following sentence to section 12: "Any enrollment required for appointnieni to such a board, commission, or other body must have been maintained continuously during the two years immediately preceding appointment." ' As 1 base previously noted, similar provisions arc set forth in many statutes Whether a particular statute with such a prov ision states a limitation or qualification depends on the words of that statute, I note in particular the variant forms in the following statutes: G,L, c, 268B, !i2 ("|a|t no time shall more than three members be from the same political partv"): G,L, c, l.'i, (jl H (similar): Ci L c, 6. S.'^'^A (similar): G,L, c, 6. 07 (similar): G,L, c, 7. HI ("Injol more than three , shall be members of the same political parly, and. of the members , , who are enrolled as members ot a polilic.il pari) on the \oling list used .it the primaries, not more than a ma|orit\ of such members shall be of the same political party "I P.D. 12 105 the criteria set out in St. 1956, c. 465, §2, there is no principle in the statute by which to determine which member is disqualified.'^ It these provisions are viewed simply as rules limiting the Governor's choice of appointees, these problems are obviated. It is a simple matter to determine with respect to each appointment whether that appointment is consistent with the Authority's composition as it is prescribed by the statute.'^ Moreover, it is fully consistent with the legislative purpose to read these provisions as rules to guide the application of periodic correctives to the Board's composition rather than as conditions of the Authority's continuing validity, or of the right of its members to hold office. Indeed, it seems most unlikely that the Legislature would intend to make the validity of the Authority's acts turn on the hazard that a member would not change his affiliation. '"^ Since my interpretation is consistent with the legisla- tive purpose, and since it avoids the serious problems posed by the alternative, it is the preferred construction of the statute. "It is an established rule of statutory construction that allegedly conflicting provisions of a statute should, if possible, be construed in a way that is harmonious and consistent with the legislative design. Peters v. Michienzi, 385 Mass. 533, 537 (1982). Accordingly, I conclude that St. 1956, c. 465, §2, is to be read as a limitation on the Governor's power to appoint members to the Authority, and not as a qualification of their continuing right to hold office. See Harrell v. Sullivan, 220 Ind. 108, 1 19, 40 N.E. 2d 1 15, n9 0942) (statute of this character imposes limitation on appointment power, not qualifica- tion to hold office): State ex rel. Childs v. Hohuan, 58 Minn. 219, 225, 59 N.W. 1006 (1894). Compare Commomvealth v. Plaisted, 148 Mass. 375, 387 (1889) (statute providing that members of board of police are to be appointed from the two principal political parties is probably a direction to the Governor rather than "element in the tenure of the office"). From all the foregoing discussion it should be clear, however, that I regard the statutory framework to be imperfect. I therefore close this opinion by reiterating an observation I have made throughout: these statutes require legislative attention. Very truly yours, FRANCIS X. BELLOTTI Attorney General '^ ll is surely signilicanl in Ihis rcijard thul ihc Lcgisliiiiiirc h.is iiol pnnidcJ a dislincl ivniL'd\ « hen a hoaiil or ciininiisMiin hcconics imhalanccd. Ciiiiip,iirG-L t. 51. §19 (piiKcdurc lor rcimn ing registrar of voters when hoard ol registrars heeonies niihalaneed). ''Thus, it is not significant that the Legislature has not specifically established a means for challenging an appointment to the Authority; an action by the Attorney General in the nature of quo warranto is well-suited to test an appointment '"' A rule disqualifying a member who has changed his affiliation during his tenure could conceivably be susceptible to constitutional attack. Bui see Brcmii \: Finkel. 445 U.S. 507, 518 (1980) (dicta) (where state's election laws require judges to be of different parties, a judge who changes his registration could legitimately be discharged). 106 P.D. 12