Number 6. July 13, 1967

Number 6. July 13, 1967. Hon. Quintin J. Cristy, Chairman, Alcoholic Beverages Control Commis- sion Dear Mr. Christy:— You have requested my opinion concerning the va- lidity of the action of two of the three members of the Marlborough Licensing Board in accepting seven applications for a "package goods" store license, calling hearings thereon, approving one application and denying the other six, under the following circumstances: The Chairman of the Board, you state, "refuses to call any meeting to consider these applications"; "the re- maining two Members did accept applications on their own and processed them"; "the Chairman refused to attend the hearing on these cases stating it was an illegal hearing"; and "the other two members, as a result of the hear- ing, approved one applicant for the available license and denied all the oth- er applicants." Supplemental information furnished to me by your Commis- sion indicates that the Chairman regarded any meeting as illegally called unless he had called it himself. The question of the validity of the majority's action comes before your Commission in connection with its responsibility under G. L. c. 138, § 15 to approve or withhold approval of the granting of "package goods" store licenses by licensing boards. Since the Commission should not approve any invalid action taken by a licensing board {Fiona v. Alcoholic Beverages Control Commision, 332 Mass. 53, 56), it is entitled to request my opinion concerning the law that must govern its determination of the validity of the Marlborough Board's action. The law requires that the members of a local licensing board act jointly P.D. 12 43 and not by the separate action of its individual members. Pettengell v. Alco- holic Beverages Control Commission, 295 Mass. 473. A board's official ac- tions "must be determined at a formal and regularly constituted meeting of the board and must be made a part of its records." Pettengell v. Alcoholic Beverages Control Commission, supra, at 477. See also G. L. c. 30A, § 1 1 A and G. L. c. 39, §§ 23A-23C, the "open-meetings" statutes. The law does not, however, require that all members of the board attend a meeting as a condition of the validity of actions taken thereat. Numerous cases have decided that, if a quorum is present, an administrative board may validly conduct its business. See George v. School District in Mendon, 6 Mete. 497, 511. Cooke v. Scituate, 201 Mass. 107, 109. Codman v. Crocker, 203 Mass. 146, 154. Specifically, in the case of a licensing board organized in accordance with the Alcoholic Beverages Control Laws, G. L. c. 138, §§ 4-9, it is provided in § 6 that "Two members shall be a quorum for the transaction of business." And G. L. c. 4, § 6, Fifth, relative to the construction of statutes, provides: "Words purporting to give a joint authori- ty to, or to direct any act by, three or more public officers or other persons shall be construed as giving such authority to, or directing such act by, a majority of such officers or persons." Therefore, the fact that the license in question was granted at a meeting attended by only two of the three mem- bers of the board does not in itself cause the grant to be invalid. On the other hand, it is clear that notice of meetings to all members, ade- quate and reasonable under the circumstances, is an essential condition of a formal and regularly constituted meeting. "Ordinarily [a board] cannot act legally without a meeting of all the members, or a reasonable notice to all, such as to give every member, if he pays proper attention to his public du- ties, an opportunity to be present with the others and participate in the busi- ness before the board." Damon v. Selectmen of Framingham, 195 Mass. 72, 77. Rohie v. Massachusetts Turnpike Authority, 347 Mass. 715, 724-725. Notice of meetings reasonable under the circumstances is required even as to a member who has expressed an intention of refusing to participate, in order that he may have the opportunity to change his mind. In George v. School District in Mendon, 6 Met. 497, one of the town of Mendon's three duly elected assessors refused to take his oath of office, and when given no- tice by the other two assessors of a meeting, declined to attend. Chief Justice Shaw, in a decision affirming actions taken by the other two assessors at that meeting, stated at page 511: "If a majority do qualify, by taking the oath, and the third has not taken the oath, still, if he has notice of their proceed- ing to execute the office, and declines to take the oath and act with them, their acts will be good, in the same manner as if he had taken the oath and declined to act with them. . . ." (Emphasis supplied.) In deciding whether the Marlborough license in question was granted at a duly called and conducted meeting of the Marlborough Licensing Board, the Commission may proceed on the presumption that until shown to be ir- regular, the acts of public officials will be regarded as having been validly performed. Robie v. Massachusetts Turnpike Authority, 347 Mass. 715, 725. The burden would then be on the appellants to establish that the hear- ing before the board was invalid for lack of proper notice to the absent member. The fact that the absent member was the chairman of the board does not put him on a different footing from the other members. It is a fundamental 44 P.D. 12 principle that a public board or committee must be able to function notwith- standing the opposition, absence, neglect or refusal to participate of a mi- nority of its members, whoever they may be. See, for example, Roberts Rules of Order Revised (75th Anniv. Ed.), § 52, at 212: "It is the duty of the chairman to call the committee together, but, if he is absent, or declines to call a meeting of the committee, it is the duty of the committee to meet on the call of any two of its members." If, as your letter indicates, the chairman "refuses to call any meeting to consider these applications," and "the chairman refused to attend the hear- ing on these cases," it accordingly was the duty of the licensing board, pro- vided proper notice was given to the chairman, to act on the application. In summary, then, even though the chairman of the Marlborough Licen- sing Board did not call or attend the meeting in question, you may proceed on the presumption that the meeting was validly held unless the appellants establish before your Commission that the chairman, after failing to call the meeting himself, was not given an opportunity, by reasonable notice from the other two members to him, to participate therein. If the Commission de- termines that the meeting was properly held, it should then proceed to con- sider the approval or disapproval of the Board's action, in the usual man- ner. Very truly yours, Elliot L. Richardson, Attorney General