July 22, 1985 Number 2

July 22, 1985 Number 2 Roland R. Piggford, Director Massachusetts Board of Library Commissioners 648 Beacon Street Boston, Massachusetts 02215 Dear Mr. Piggford: You have requested my opinion as to whether the Board of Library Commis- sioners ("Board") has the authority to promulgate regulations implementing G.L. c. 78, §§ 33 and 34,^ and to adjudicate disputes arising under those sections. It is my opinion that the Board does not possess such authority. Neither § 33 nor § 34 expressly authorizes the Board to regulate or adjudicate matters concerning selection of library materials or contracts with library employees.-' There is no general rule-making or adjudicatory authority supplied in the remainder of chapter 78, either. Although it is true that when a general power is given, all authority necessary to carry it out may be inferred by implica- tion, Multi-Line Rating Bureau v. Commissioner of Insurance, 357 Mass. 19, 22 (1970), chapter 78 grants no general power to the Board either to promulgate regulations or to adjudicate disputes. Rather, the Board's statutory authority is relatively limited. In accordance with §§ 14-21, the Board functions as an advisory body to state and certain municipal libraries on matters of funding and library services. It is also empowered under § 19 to expend sums appropriated for library services, accept federal grants, contract with other state agencies and municipal- ities to provide library services, and represent the Commonwealth in the receipt and distribution of funds from private sources, as well as to "certify and issue certificates to" librarians under § 22. Clearly absent from those specific powers is the general authority to promulgate regulations or to conduct adjudicatory hear- ings in accordance with the Administrative Procedure Act, G.L. c. 30A, §§ 1 et seq., and related regulations 801 C.M.R. §§ 1.00 et seq. In contrast, the Board does have certain regulatory and adjudicatory authority conferred by G.L. c. 78, §§ 19A-19C and 25, but that authority is specific in nature. Sections 19A-19C require the Board to establish certain minimum stan- dards of free public library service for municipalities, as well as a comprehensive state-wide program of regional public library systems. Consistent with that spe- cific statutory authority, the Board has set up a regulatory scheme at 605 C.M.R. §§ 4.00 et seq. and 5.00 et seq. Section 25 expressly authorizes the Board to regulate state certification of librarians and to adjudicate certification disputes. In accordance with this clear legislative directive, the Board has issued regula- tions for librarian certification, codified at 605 C.M.R. §§ 3.00 et seq. The express regulatory and adjudicatory authority granted in §§ 19A-19C and 25 contrasts sharply with the lack of such authority in §§ 33 and 34, indicating that the omission of such authority in the latter sections was intentional. The presence of express authority in one part of a statute and the lack of it in others dealing with the same subject matter implies a legislative intent to exclude that authority where it is not expressly granted. New England Power Co. v. Board of Selectmen ofAmesbun', 389 Mass. 69, 74 (1983). See also American Grain Products Processing Institute v. Department of Public Health, 392 Mass. 309, 315 (1984). P.D. 12 17 Furthermore, the provisions in §§ 33 and 34 that expressly delegate authority to local officials also evince an intent not to vest such authority in the state Board. The first sentence of § 33"* is directed to trustees of free public libraries or, in their absence, to the appropriate municipal officials, and requires the local body to establish a written policy for the selection and use of librarv' materials and facilities in accordance with standards adopted by the American Libran,' Associ- ation. Similarly, the clear language of § 34"" directs local officials to execute written employment contracts with libran,' employees. Such clear delegation to local authorities in both instances reflects a legislative intent making it impossible for me to infer that the state Board is vested with similar authority. See 1984 85 Op. Atty. Gen. No. 5. Rep. A.G.. Pub. Doc. No. 12 at (1984) (where local power to remove local tax assessors from oflfice is vested in local officials, such power on the part of the Commissioner of Revenue cannot be implied). In sum, it is my opinion that the Board has neither express nor implied author- ity to promulgate regulations or to adjudicate disputes concerning local policies for selection of library materials or written employment contracts between mu- nicipalities and library employees. Verv trulv vours. FRANCIS X. BELLOTTI ATTORNEY GENERAL ' Those statutes require free public libraries to establish written policies for the selection and use of library materials and to execute written contracts with certain library employees. - You have asked a number of additional questions concerning the application of §§ 33 and 34 to contracts between librar\ employees and local governments. I must decline to address your questions concerning whether municipalities must bear the costs of implementing these sections, or whether §§ 33 and 34 could also apply to the removal of library materials or acceptance of donations, since answering those ques- tions would require factual determinations that must be made on a case-by-case basis. 1983 84 Op. Atty. Gen. No. 2. Rep. A.G.. Pub. Doc. No. 12 at 2 (1983). Opinions of the Attorney General are rendered solely upon factual situations that actually confront a given state agency and not upon hypothetical questions or general requests for infor- mation. See 1966/67 Op. Atty. Gen. No. 55. Rep. A.G.. Pub. Doc. No. 12 at 1 14 ( 1966). Nor need I reach your specific questions concerning which American Library Asso- ciation publication(s) may serve as the standard for selection of library materials, whether the Board may define the term "free public libran,."" and which employees are covered by the statutes or the employment contracts themselves, since, for the reasons discussed in this opinion. I have found that the Board lacks authorit\- to regulate such matters. ^ The Board's regulations at 605 C.M.R. §§ 2.00 et seq.. entitled "Regulations for Adopting Administrative Regulations." merely set up a rule-making procedure, and do not of themselves reflect any general legislative grant of authority tor the Board to promulgate regulations. 18 p.D. i: * Thai section provides: The board of trustees of a free public libran in any city or town, or in the absence of such board, the city or town official possessing the appointive powers of such board, shall establish a written policy for the selection of libran* materials and the use of materials and facilities in accordance with standards adopted by the Amer- ican Library Association. No employee shall be dismissed for the selection of libran materials when the selection is made in good faith and in accordance with the approved policy adopted pursu- - ant to the pro\isions of this section. "^ Section 34 provides that: The board of trustees of a free public !ibrar> in any city or town, or in the absence of such board, the city or town official possessing the apf>ointive powers of such board shall, except in the case of those employees subject to the provisions of chapter one hundred and fifty E. execute a written employment contract with an em- ployee of said libran^ outlining the basic conditions of employ- ment, including but not limited to the establishment of a proba- tionary period and the procedure for dismissal during this period and the establishment of a procedure which specifies the cause for dismissal after the completion of such probationan- period. P.D. 12 19