February 28, 1986 Number 8

February 28, 1986 Number 8 Roland R. Piggford, Director Massachusetts Board of Library Commissioners 648 Beacon Street Boston, Massachusetts 021 15 Dear Mr. Piggford: You have requested my opinion on three questions relating to the authority of the Board of Library Commissioners ("Board") under G.L. c. 78, § 19A (1984 ed.) ("section 19A").' To paraphrase your request, the questions you pose are: (1) May the Board waive the conditions of grant eligibility set forth in section 19A? (2) In determining a municipality's eligibility for state funding, may the Board include, as part of a municipality's annual budget for free pubhc library services, fund appropriated for capital expenditures? (3) In determining a municipaHty's eligibility for state funding, may the Board exclude, as part of a municipality's annual budget for free public library services, an appropriation for capital expenditures that is to be funded by a loan order and bond issue?^ For the reasons discussed below, it is my opinion that: (1) the Board may not waive the conditions of grant eligibility set forth in section 19A; (2) the Board may not, for purposes of determining grant eligibility, include, as part of a municipal- ity's annual budget for library services, funds appropriated by a municipality for capital expenditures; and (3) the Board may exclude, as part of a municipality's annual budget for library services, an appropriation by a municipality for capital expenditures that is to be funded by a loan order and bond issue. The starting point for my analysis is the statutory scheme pertaining to the Board itself. Pursuant to G.L. c. 78, §§ 14-21 (1984 ed.), the Board functions as an advisory body to state and certain municipal libraries on matters of funding and library services. See Generally 1985/86 Op. Atty. Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at (1985). Section 19 empowers the Board to "expend such sums as may be appropriated for the extension and encouragement of library services within the commonwealth," designates the Board as the state agency to deal with the federal government with regard to federal grants promoting library services, and authorizes the Board to contract with other state agencies and municipalities to provide library services and to represent the Commonwealth in the receipt and disbursement of funds from private sources. Id. Section 19A is a critical components of that scheme. It imposes certain require- ments on municipalities that wish to receive state funding. For purposes of this discussion, two of those requirements are particularly relevant. First, the munic- ipality must be certified by the Board "to have met certain minimum standards of free public library service established by" the Board. -^ Second, no municipality that appropriates in a given year less than six dollars per capita for free public library service "shall receive any money" if such appropriation is below the 36 P.D. 12 average of its annual appropriations for such service for the immediately preced- ing four years. These are the statutory conditions you inquire about waiving in your first question. For purposes of this first question, the relevant language of section 19A is clear and unambiguous. "In construing a statute, words are to be accorded their ordi- nary meaning and approved usage." Hashimi v. Kalil, 388 Mass. 607, 609 (1983) and cases cited. "The word 'shall' is ordinarily interpreted as imposing a manda- tory or imperative obligation." Hashimi, 388 Mass. at 609-10 and cases cited. In addition, as a general rule, directives to public officials for the exercise of power or authority to protect private rights or the public interest are mandatory. 2A C. Sands, Sutherland Statutory Construction, § 57.14 (4th ed. 1972); Hashimi, 388 Mass. at 610. This is especially true with regard to statutes regulating public expenditures and directing the levying of taxes. 2A C. Sands, supra at §§ 57.14, 57.20. Because the Board was created by the Legislature, it has "only the powers, duties and obligations expressly conferred upon it by . . . statute ... or such as are reasonably necessary ... [to carry out] the purpose[s] for which it was estab- lished." See Saccone v. State Ethics Commission, 395 Mass. 326, 335 (1985). Here, the Legislature has spoken clearly. Thus, while the Board may, within the confines of sections 19A and 19B, amend the minimum standards of free public library service set forth in 605 C.M.R. §§ 4.00 and 5.00 et seq. , see generally 1985/86 Op. Atty. Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at (1985), it may not alter or waive either the first or the second grant eligibility requirement of section 19A. Therefore, I concur with the Board's own answer to its first question: it is pro- hibited from certifying municipalities that are not in strict compliance with the statutory conditions of eligibility. Your second and third questions are related and will be discussed together. The answer turns on the meaning of the phrases "appropriate for its free public library service" and "appropriation for free public library service" in paragraph four of section 19A. You ask whether those phrases include funds appropriated for capital expenditures or an appropriation for a capital expenditure that is to be funded by a loan order and bond issue. I am assuming that by "capital expendi- tures," you mean expenditures that are, in general, extraordinary and non- recurring, such as for the construction, renovation, improvement, expansion, or repair of a library building. Neither the term "free public library service" nor the term "library service" is defined in G.L. c. 78^* or in the regulations promulgated by the Board pursuant to sections 19Aand 19B. 5ee 605 C.M.R. §§ \.{){)etseq. Given the lack of a conclusive statutory or regulatory definition,'' the lack of relevant case law, the the lack of relevant legislative history, I construe the word "service" in accordance with its common and ordinary meaning in a manner that promotes the object to be accomplished by section 19A. See Dedham Water Co. v. Dedham, 395 Mass. 510, 517-18 (1985); Department of Community Affairs v. Massachusetts State College Building Authority, 378 Mass. 418, 427 (1979); DEQE v. Hingham, 15 Mass. App. Ct. 409, 411 (1983) and cases cited. Under the circumstances, it is appropriate to consult a dictionary. Milligan v. Tibbetts Engineering Corp. , 391 Mass. 364, 368 (1984). Webster's New World Dictionary 1301 (2d college ed. 1974) indicates that both the etymology and modern usages of "service" are closely linked to laborers and labor for the provision of a benefit. The meaning that is most applicable here defines "service" as "the act . . . or method of providing . . . people with the use of P.D. 12 37 something, as electric power, water, transportation, mail delivery, etc." This definition suggests that repetition and maintenance of a routine is central to this meaning of "service," since the word "method" means or implies a regular, orderly procedure or way of doing something. See Webster's, supra at 894. See also Webster's Ninth New Collegiate Dictionary 141 (1983). Webster's Ninth New Col- legiate Dictionary 1076 (1983) and Webster's Third New International Dictionary 2075 (1964) offer the definition of "service" as "useful labor that does not pro- duce a tangible commodity," such as are performed by railroads, telephone companies, and physicians. This definition focuses on non-material, non-capital products or benefits. These definitions of "service," like the definition of "library services" in the Public Library Services and Construction Act, 20 U.S.C. §§ 351a et seq., as amended,^ suggest that non-recurring expenditures to construct new library buildings or to renovate, remodel, or expand existing library buildings are not contemplated by section 19A. Such an interpretation would be consistent with G.L. c. 78, §§ 14-32, and the Board's powers and duties thereunder. See, e.g.,Saccone, 395 Mass. at 334 (where two or more statutes relate to the same subject matter, they should be construed together so as to constitute an harmonious whole). Pursuant to G.L. c. 78, § 15 (1984 ed.), the Board may advise librarians or trustees regarding "the selection or cataloguing of books and any other matter pertaining to the maintenance or administration of such library." As discussed above, pursuant to section 19, the Board is authorized, among other things, to expend appropriated sums "for the extension and encouragement of library services within the commonwealth" and is designated as the state agency to deal with the federal government with respect to federal grants to the Commonwealth "for promoting library services." Signif- icantly, the Board is not, at least expressly, designated as the state agency to deal with the federal government with respect to federal grants for "construction" of public libraries. See footnote 6, supra. Section 19E, which provides for a compre- hensive statewide program for the improvement and development of library and media "resources," also suggests and distinction between library "services" and "construction" or "reconstruction" of public libraries. Compare G.L. c. 78, § 19E(l)-(5) with § 19E(6) and § 19E(6)(a) with § 19E(6)(b). Chapter 693 of the Acts of 1963, providing for an interstate library compact, repeatedly distinguishes between "library facilities" and "library services," again suggesting that an ap- propriation for capital expenditures by a municipality is not considered an ap- propriation for "library service" under section 19A. Such an interpretation of the phrase "library service" is also consistent with the purpose of section 19A. See Saccone, 395 Mass. at 328 (a statute is to be inter- preted "according to the intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced"). Section 19A establishes the average of four prior years' appropriations as the standard for measuring whether a current library budget qualifies a municipality for state aid. Including a one-time, anomalous sum for a capital expenditure in any one of the four years presumably would defeat the purpose of averaging, since the average figure would not reflect the routine level of funding. As a result, municipalities might be discouraged from making needed capital expenditures for fear of losing state aid for ordinary operating expenses. In contrast, excluding sums for capital expenditures would promote generous routine yearly appropri- ations to maintain a library system, would avoid rewarding a municipality that would otherwise be ineligible for state aid because of the paucity of its routine 38 P.D. 12 expenditures, and would protect the eligibility of municipalities that need or desire to make an unusual increase in one year for a capital expenditure. In light of the foregoing, I have concluded, with regard to your second and third questions, that funds appropriated by a municipality for capital expenditures may be excluded as part of a municipality's annual budget for library services in determining a municipality's eligibility for state funding under section 19A. Very truly yours, FRANCIS X. BELLOTTI ATTORNEY GENERAL ' That section provides, in relevant part: The state treasurer shall annually . . . pay from the General Fund to each city or town certified by the board . . . to have met certain minimum standards offi-ee public library service established by said board a sum of money for its free public library or libraries which shall be determined as follows: (1) To each town having a population of less than two thousand five hundred a sum equivalent to the amount appropriated by it for free public library service during the preceding year, but in no event more than one thousand two hundred and fifty dollars; - - (2) to each city and to each town having a population of two thousand five hundred or more, a sum not exceeding fifty cents for each resident therein; provided, that such city or town appropriates during the preceding year for its free public library service at least one thousand two hundred and fifty dollars. No city or town which appropriates for its free public library service in any one year an amount less than six dollars per capita of population shall receive any money under this section if such ap- propriation is below the average of its appropriation for free public library service for the four years immediately preceding. (Emphasis added.) - While a literal reading of section 19A might suggest that it is the state Treasurer's authority, and not that of the Board, which is implicated by section 19A, I have been advised by the state Treasurer that it is his practice to rely exclusively on the certifi- cations provided by the Board and to make the payments from the General Fund accordingly. Thus, you appear to be the appropriate state officer to seek my opinion on these three questions of law. 3 Pursuant to section 19A and G.L. c. 78, § 19B (1984 ed.), the Board has promulgated such standards. See 605 C.M.R. §§ 4.00 and 5.00 et seq. P.D. 12 39 * G.L. c. 78, § 1 9 ( 1 984 ed.), gives the Board the power to "contract with any other state agency, city or town, pubhc or private hbrary to provide improved library sen'ices in an area, or to secure such services as may be agreed upon, which sen'ices may include, but need not be limited to, the lending of books and related library material, the estab- lishment of branch libraries, depositories or bookmobile service, and to cooperative purchasing and processing of books, recordings, films, and related library materials" (emphasis added). However, this section expressly does not define the full contours of the term "library services." " The Board could promulgate a regulation defining the term "library service." That definition might exclude "capital expenditures," in which case the regulation might also define what is meant by "capital expenditures." This would provide guidance to the Board and to municipalities and resolve any ambiguity that might otherwise exist. ^ This federal statute authorizes the appropriation of monies to make grants to states for, among other things, "library services," "public library services," and "construc- tion." 20 U.S.C. § 351b. "Library service" is defined as "the performance of all activities of a library relating to the collection and organization of library materials and to making the materials and information of a library available to a clientele." 20 U.S.C. § 35 la(3). "Public library services" are defined as "library services furnished by a public library free of charge." 20 U.S.C. § 35 la(6). The term "construction" includes "construction of new buildings and acquisition, expansion, remodeling, and alteration of existing buildings . . . ." 20 U.S.C. § 351a(2). 40 P.D. 12