February 14. 1984 Number 9

February 14. 1984 Number 9. Honorable Michael Joseph Connolly Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Connolly: You have requested my opinion whether you are required to issue commissions for gubernatorial appointments to public offices under G.L. c. 30, §12, and to record those commissions in the Commonwealth's official records, in four par- ticular circumstances.' For the reasons discussed below, I conclude that the role of the Secretary of the Commonwealth in the process or gubernatiorial appoint- ments is exclusively ministerial and that, in all but one of the instances you describe, you are required to issue commissions and make an appropriate record thereof in the Commonwealth's official records. Initially, 1 note that following your request for this opinion, you issued emer- gency regulations governing precisely the extant questions. See 950 CMR 201 .01 et seq. (Commissions Regulations). Those regulations became effective on Janu- ary 28, 1983, and require appointing authorities to follow explicit procedures "[i]n order for a commission to be issued and recorded". 950 CMR 201 .05. Implicit in the adoption of those Commissions Regulations is the assumption that no nor- mal procedures existed prior to their promulgation, and that none were required by law. That conclusion would, of course, fully resolve your inquiry. In circum- stances where the Attorney General's opinion is not "clearly required", see, e.g. , 1973-74 Op. Atty.Gen. No. 31, Rep. A. G., Pub. Doc. No. 12 at p. 76 (Novem- ber 6, 1974), quoting 6 Op. Atty. Gen. 648, 649 (1922), it is appropriate to decline rendering a formal opinion. Your request is unusual, however, because it raises state constitutional and statutory questions of significance, and bears upon the integrity of the terms of office of several public officers. It would be unwise and inappropriate to leave the eligibility of public officers in doubt. Moreover, the Com- missions Regulations were issued as a temporary emergency measure, are sub- ject to modification after public hearing, and may not become permanent regulations.^ Accordingly, I respond to your inquiry. You have dcscnhcd Ihosc circumstances in Ihe lolUiwIng manner: I An individual has tendered to (he Secretary of State a writing signed hy one duly constituted to adinini.slcr qualifying oaths. c. K). 511. and which states that Ihe individual has taken Ihe qualifying oath for a specilic public office. The Secretary of Slate has received no other notification or evidence of Ihe appointment from Ihe appointing authority 2. An individual tenders to the Secretary of Slate a letter appointing the individual to a specific public office and signed by a duly authorized appointing authority. The Secretary of Stale has received no other nolificalions of the appointment from the appointing authority 3. An individual advises Ihe Secretary of Slate that he or she has been appointed to a specific public office by a duly authorized appointing authority. The Secretary of Slate has received no other notification of the appointment from the appointing authority 4. The Secretary of Stale receives notice of an appoinlment to a specific public office by a duly authorized appointing authority after the expiration of Ihe Icrm of office of the appointing aulhority . The notice of appointment is dated at a time before Ihe expiration of the term of the appointing authority. Because the circumstances outlined in your request pre-date the Commissions Regulations, ihey play no role in the lollowmg analysis. and I express no view upon their validity. P.D. 12 107 Your request addresses appointments made by the governor and governed by G.L. c. 30, §12, which provides that: A person appointed to an office by the governor with or without the advice and consent of the council shall be notified of his appointment by the state secretary and his commission delivered to him, and if he does not, within three months after the date of such appointment, take and subscribe the oaths of office, his appointment shall be void, and the secretary shall forthwith notify him thereof and require him to return his commission, and shall also certify said facts to the governor. Your constitutional role is consistent with the statute's requirement that the state Secretary inform a duly appointed public officer of his commission. Thus, Mass. Const. Part 2, c. 2, §4, art. 2 provides that "[tjhe records of the Commonwealth shall be kept in the office of the secretary . . .and he shall attend the governor and council. . .as they shall respectively require." Mass. Const. Part 2, c. 6, art. 4 provides that "la]ll commissions shall be in the name of the Commonwealth of Massachusetts, signed by the governor and attested by the secretary or his deputy, and have the great seal of the commonwealth affixed thereto." These are the essen- tial statutory and constitutional provisions governing the conduct of the state Secre- tary in the process of gubernatorial appointment making. The relevant statutory and constitutional provisions make plain that the state Secretary functions in a purely ministerial manner with respect to gubernatiorial appointments. Thus, commissions are "attested by the Secretary", Mass. Const. Part 2, c. 6, art. 4; records are "kept in the office of the Secretary", Mass. Const. Part 2, c. 2, §4, art. 2; and public officers "shall be notified" of their commis- sions by the Secretary. G.L. c. 30, §12. Each of these functions is mandatory in nature. 63 Am. Jur. 2d, Public Officers and Employees, %IIS (1972) (the state Secretary acts "in a ministerial capacity, and the duty imposed on him is gener- ally regarded as a mandatory one, involving from its very nature no exercise of judgment or discretion."). In the absence of any discretion, the state Secretary must act in accord with the explicit directives of the statutory scheme and state constitution. Dispositive of the nature and extent of the state Secretary's role is the decision of the United States Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137, (1803). In that case, President John Adams appointed several justices of the peace immediately prior to his departure from office, but President Jefferson's Secretary of State, James Madison, refused to deliver commissions to the Adams appointees. Chief Justice Marshall noted the distinction between an appointment and the transmittal of a commission. "The acts of appointing to office, and com- missioning the person appointed, can scarcely be considered as one and the same," wrote Marshall. Id. at 156. Once the executive has taken "the last act required" of him, [t]he subsequent duty of the Secretary of State is prescribed by law ... he is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied .... It is a ministerial act which the law enjoins on a particular officer for a particular purpose. Id. at 158. 108 P.D. 12 Indeed, if the Secretary fails to record or otherwise process the appointment, his failure to act does not affect the integrity of the appointment. Thus, "[i]n the case of commissions, the law orders the Secretary of State to record them . . .and whether inserted in the book or not. they are in law recorded." Id. at 161.^ This rule was reaffirmed by the Court in United States v. LeBaron, 60 U.S. (19 How.) 73 (1856), when a question arose with regard to an appointment made by Presi- dent Zachary Taylor but transmitted after his death in office. The Court declared that: When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appoint- ment to that office is complete. Congress may provide . . .that certain acts shall be done by the appointee before he shall enter on the pos- session of the office under his appointment. These acts then become conditions precedent to the complete investiture of the office; . . .all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions, his title to enter on the possession of the office is also complete. The transmission of the commission to the officer is not essential to his investiture of the office. If, by any inadvertence or accident, it should fail to reach him, his possession of the office is as lawful as if it were in his custody. It is but evidence of those acts of appoint- ment and qualification which constitute his tide .... Id. at 78-79. Neither the age of these cases, nor their federal origins, detracts from their vital- ity or applicability to the issues raised by your request. In Massachusetts, a gubernatorial appointment is complete upon the written or oral appointment of the governor. The only requirement remaining is the "qualifi- cation" of the appointee established by the taking of the qualifying oaths prescribed by the laws of the Commonwealth. See, e.g., Mass. Const. Part 2, c. 6, art.l."* No form is prescribed by law for a gubernatorial appointment. Thus, the appoint- ment may be made by letter, orally, or in some other manner. "[W]here an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions." Shapleigh v. San Angela, 167 U.S. 646, 658 (1897). Accord Opinion ofthe Justices, 368 Mass. 866, 874 (1975) (governor has broad discretion to select the means he will use in executing a state law duty); 1935 Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 129-130 (failure of the governor to take oath precisely as required by the state constitution did not impair his ability to perform in office). " A commission is not necessarily a writlen docunienl, although it may be In Massachusetts it appears to be the practice that only notary publics and commissioners authorized to administer oaths are actually presented with a written document, marked with the seal of the Commonwealth, as formal evidence of their appointment Although G.L. c. 30, SI2 appears to require the delivery of a writlen commission to all gubernatorial appointees, the failure to do so d(U's not undermine the appointment since the commission is only evidence of the appointment, and not the appointment itself. Marhury v. Madison. f\ US, ( 1 Cranch) 137. 160 ( 1803). See also Uniiecl Sums v LeBtinm. 60 U.S. (19 How.) 73, 78-79 (18.'i6) See also G.L. c. .30, S8, which provides, i/iler alia, that "no officer shall enter upon the duties of his office until he is duly qualified as provided by law " P.D. 12 109 Once the governor makes an appointment, the appointee is entitled to enter into the office for which he has been chosen. United States v. LeBaron, 60 U.S. (19 How.) at 78. However, that entitlement is conditional upon the state statutory and constitutional requirement that the person qualify for his public office. G.L. c. 30, §8. "[T]he appointment and the qualification are distinct and separate things." 63 Am Jur. 2d, Public Officers and Employees, §99 (1972). Thus, a public officer must be both "selected and qualified" before he can "enter on the discharge of the business of his place of office". See Opinion of the Justices, 275 Mass. 575, 579 (1931); Mass. Const. Part 2, c. 6, art. 1. Against this general backdrop of the law, I turn to your specific inquiry, which is whether you are required by law, under four particular circumstances, to issue and record a commission for a public office. In order for the state Secretary to perform the tasks required of him by law, he must be informed, in some manner, of an appointment by the appointing authority or his duly authorized agent. The forms of both the appointment and the commu- nication of the appointment to the state Secretary are not prescribed by law. Some evidence of the appointment, however, should be brought to the state Secretary's attention by the appointing authority or someone authorized to act on his behalf. In the absence of independent verification of an appointment, the Secretary may make inquiry of the appointing authority to confirm the appointment. The third circumstance you describe provides the clearest example of an instance where reasonable doubt might exist about the veracity of an appointment, and where you might make inquiry of the appointing authority prior to issuing and recording a commission. With respect to the remaining circumstances (numbers 1, 2 and 4), they each appear to be governed by the general rule that a public officer may enter upon his official duties upon his appointment and qualification. In each of those circum- stances, it appears that you have received sufficient evidence of an appointment from the appointing authority or his authorized agent, and you are required to issue and record commissions.^ It is of no consequence that you recieved notice of an appointment after the expiration of the appointing authority's term of office, see United States v. LeBaron, 60 U.S. (19 How.) at 78, or that the appointee himself transmits his letter of appointment to you. In the situation where an individual tenders to you a writing which is signed by the governor and which indicates that the individual took the qualifying oath for a specific office, that should ordinarily be sufficient evidence for you to perform the tasks required by statute and state constitution.^ Yuu must l^^uc and record a commission even if the appointee has nol yel taken the qualifying oaths. The commission becomes void, and you must so mform the individual, if the appointee fails to lake those oaths within ninety days of his appointment, G.L. c. 30, §12. I do not understand your request to inquire about the veracity of the governor's signature on any document. I understand that in some instances, the governor may make use of a facsimile signature to carry out certain duties. If you had reason to believe the governor's facsimile signature was unauthorized, you would be warranted in seeking independent verification of the apointment from the governor or his duly appointed agent. Doubt about the integrity of a facsimile signature does not interfere with the appointee's ability lo carry out the duties of his office. However, if you determine that the facsimile signature was nol authorized, the appointment is null and void and you .should so notify the individual. 110 P.D. 12 In sum, you are obligated to issue and record commissions for individuals whose appointments are the subject of your request, with the exception of the third cir- cumstance you describe.'' In that instance, your duty to issue and record a com- mission becomes mandatory upon receipt of some verification by the appointing authority or his authorized agent that an appointment was made during his term in office. Very truly yours, FRANCIS X. BELLOTTI Attorney General