October 24, 1988 Number 2

October 24, 1988 Number 2 Honorable Frank T. Keefe, Secretary Executive Office for Administration and Finance State House Boston, Massachusetts 02133 John E. Kearney, Chairman Teachers' Retirement Board One Ashburton Place Boston, Massachusetts 02108 Dear Secretary Keefe and Chairman Kearney: You have requested my opinion as to whether G.L. c. 30, § 25B, which regulates out of state travel at public expense by officers and employees of the Commonwealth, applies to members and employees of the Massachusetts Teachers' Retirement Board (the "Board"). For the reasons set forth below, I conclude that G.L. c. 30, § 25B does apply to the Board. The statute at issue provides in pertinent part that: No officer or employee of the Commonwealth may travel out of state at public expense except in accordance with rules and regulations established by the commissioner of administration for the expenditure of funds for travel out of state by employees of the Commonwealth, and except with the prior written approval of his appointing authority, and, in the case of a department, office, commission, board, or institution within any of the executive offices established by chapters six A and seven upon the prior written approval of the secretary having charge of such executive office. G.L. c. 30, § 25B. (Emphasis added.) "A statute is to be interpreted according to the plain and ordinary meaning of its words and their ordinary and approved usage." Commonwealth v. Colon-Cruz, 393 Mass. 150, 167 (1984). The plain language of the first clause of § 25B would seem to require that if members and employees of the Board are Commonwealth employees, members of the Board and staff may travel out of state at public expense only in accordance with rules and regulations established by the commissioner of administration. 1 Furthermore, the Executive Office for Administration and Finance ("EOAF") is an executive office established by chapter seven of the Massachusetts General Laws. See G.L. c. 7, § 2. The 1 I take no position on the advisability or necessity of out of state travel by members of the Massachusetts Teachers Retirement Board or any other department, office, board, commission, or institution. P.D. 12 111 Teachers' Retirement Board appears to be a board "within" EOAF.2 See G.L. c. 7, § 4G. That section declares certain agencies, including the Teachers' Retirement Board, "to be within the executive office for administration and finance." (Emphasis added.) Accordingly, if Board members and staff are Commonwealth officers or employees, the last clause of G.L. c. 30, § 25B would seem to impose the additional statutory requirement that members and employees of the Board receive the prior written approval of the secretary having charge of EOAF before travelling out of state at public expense. Various statutes, judicial decisions, and Opinions of the Attorney General, however, which affirm the autonomy of the Board in many respects raise some question as to whether members and employees of the Board are plainly within the purview of G.L. c. 30, § 25B. Nevertheless, based upon my analysis of these authorities, it is my opinion that members and employees of the Board are officers or employees of the Commonwealth for the purposes of G.L. c. 30, § 25B and that the Board is not exempted from the operation of that statute. I begin with the proposition that the Board, established by G.L. c. 15, § 16 and located within EOAF and the Office of Human Resource Administration, is a state agency. Section 47 of Chapter 199 of the Acts of 1987, which places the Teachers' Retirement Board within the latter office, refers to the Board as an "agenc[y]." Moreover, the Board's status as a state agency is confirmed by the multitude of contacts between the Board and the Commonwealth. The Board is the appointing authority for its staff for the purposes of the civil service law. See 1978/79 Op. Att'y Gen. No. 29, Rep. A.G., Pub. Doc. No. 12 at 161 (1979). The Board is represented in litigation by the Attorney General, e.g., School Committee of Brockton v. Teachers' Retirement Board, 393 Mass. 256 (1984). The Board has from time to time, as it is doing in the present case, requested the formal legal opinion of the Attorney General pursuant to the Attorney General's authority under G.L. c. 12, § 3 to render legal advice and opinions to state officers, agencies, and departments on matters relating to their official duties. See, e.g., 1980/81 Op. Att'y Gen. No. 7, Rep. A.G., Pub. Doc. No. 12 at 113 (1980); 1979/1980 Op. Att'y Gen. No. 5, Rep. A.G., Pub. Doc. No. 12 at 104 (1979). One such opinion assumes, without discussion, that the Board is a state agency. See 1978/79 Op. Att'y Gen. No. 29, Rep. A.G., Pub. Doc. No. 12 at 161 (1979). It can similarly be deduced that members and employees of the Board are officers or employees of the Commonwealth. The Board's enabling statute refers to membership on the Board as an "office." See G.L. c. 15, § 16. Massachusetts cases which have attempted to define the nature of public office or employment have generally focused upon the nature of the duties involved. See e.g., Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 777 (1976) ["a person may be deemed a public official where he is fulfilling duties which are public in nature, involving in their performance the exercise of some portion of the sovereign power, whether great or small.'" (citation omitted)]. See also Attorney General v. Tillinghast, 203 Mass. 539 (1909). Although members of 2 The Board is also an agency within the Office of Human Resource Administration, which is an office established within EOAF. See St. 1987, c. 199, §47, made effective July 1, 1987 by St. 1987, c. 199, §156. HZ r.u. vl the Board serve without compensation,^ this factor is not determinative of their status or lack thereof as officers or employees of the Commonwealth. See, e.g., Kaplan v. Sullivan, 290 Mass. 67, 69 (1935) ['The nature and importance of the duties imposed on the [Boston Finance Commission] denote that all its members are public officers. The circumstance that the chairman receives a fixed annual salary does not place him on any different footing from his [uncompensated] associates in this respect, although in other conditions it might be entitled to weight." (citations omitted)]. See also G.L. c. 268A, § 1 [defining "state employee" for the purposes of the Massachusetts Conflict of Interest Law as "a person performing services for or holding an office, position, employment or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation . . ." (emphasis added)]; G.L. c. 258, § 1 [defining "public employee" for the purposes of the Massachusetts Torts Claim Act as "elected or appointed, officers or employees of any public employer, whether serving full or part-time, temporary or permanent, compensated or uncompensated ..." (emphasis added)]. The Board utilizes the commonwealth's payroll procedure and insurance programs for its staff and "with the exception of the Board's executive secretary, the staff of the Board is within the civil service system." 1978/79 Op. Att'y 3 See G.L. c. 15, §17. Members are, however, reimbursed "for any expense or loss of salary or wages which they may incur through service on the board." Id. An argument in favor of the non -reviewability of the Board's out of state travel expenses can be derived from this provision, which reads in pertinent part: The members of the teachers' retirement board shall serve without compensation, but they shall be reimbursedfrom the expensefund of the teachers' retirement system for any expense or loss of salary or wages which they may incur through service on the board. All claims for reimbursement on this account shall be subject to the approval of the governor and council. G.L. c. 15, §17. (Emphasis added.) However, on its face, reimbursement for expenses pursuant to §17 is subject to the review and approval of the governor. (For repeal of certain statutory duties of the executive council, see G.L. c. 6 App., §§1-1 et seg..] The provision in §17 for reimbursement of expenses is not logically inconsistent with the requirement that the Board obtain authorization from the secretary of EOAF prior to expending funds for out of state travel. Furthermore, even if one assumes that G.L. c. 15, §17 vested exclusive authority in the governor and council to review expenses of the Board, that general provision is superseded by the more specific statute relating to expenses for out of state travel subsequently enacted by the legislature. "If a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute. This is particularly true where, as here, the specific statute was enacted after the general statute." Pereira v. New England LNG Co. . Inc., 364 Mass. 109, 118 (1973). When enacting G.L. c. 30, §25B, the legislature is presumed to have known of the existence of G.L. c. 15, §17 and to have intended that the Board be subject to the specific provisions relating to out of state travel. P.D. 12 113 Gen. No. 29, Rep. A.G., Pub. Doc. No. 12 at 161 (1979).4 In addition, G.L. c. 29, § 27, which, among other things, limits the incurring of expenses by any "department, office, commission and institution" of the Commonwealth to amounts appropriated therefor by the general court, applies to the Board. See 1978/79 Op. Atfy Gen. No. 29, Rep. A.G., Pub. Doc. No. 12 at 161 (1979). The administration of the Board is funded by an appropriation of the Commonwealth. See St. 1987, c. 199, § 2, Item 1108-4010. Cf. Gallagher v. Metropolitan District Commission, 371 Mass. 691, 698 (1977) [referring to Mitchell v. Metropolitan District Commission, 4 Mass. App. Ct. 484 (1976) in which the Appeals Court concluded that MDC employees are state employees because, among other things, "[t]he MDC is subject to the laws regulating the administration of Commonwealth agencies. G.L. c. 29, § 1. G.L. c. 30, § 1. It makes its expenditures not with funds of its own but with Commonwealth funds made available to it from the State treasury by periodic appropriations..." (footnote and citations omitted)]. In light of the foregoing involvement with state government and the Board's status as a state agency, I conclude that members and employees of the Board are state officers or employees for the purposes of G.L. c. 30, § 25B. Therefore, unless the Board is exempted by other statutes or case law, its members and staff must comply with the provisions of the out of state travel statute. In determining whether the Board is exempted from the operation of G.L. c. 30, § 25B despite the status of its members and staff as officers or employees of the Commonwealth, I first consider that portion of G.L. c. 7, § 4G which states: Nothing in this section shall be construed as conferring any powers or imposing any duties upon the commissioner [of administration] with respect to the foregoing agencies except as expressly provided by law G.L.c. 7, § 4G. (Emphasis added.) The question is whether this proviso insulates the Board from the fiscal control of EOAF with respect to expenditures for out of state travel.^ I conclude 4 Compare Opinion Letter from John J. McGlynn, Commissioner, Division of Public Employee Retirement Administration, to Joseph Stacey, Chairman, City of Worcester Retirement System (October 22, 1987) (opining that the Worcester Retirement Board is independent of the personnel policies and civil service requirements of the City of Worcester). 5 It might be argued that the state agency which does have fiscal and administrative authority over the Board is the Division of Public Employee Retirement Administration ("PERA"). See G.L. c. 7, §50 ("[t]he commissioner of public employee retirement . . . shall have general responsibility for the efficient administration of the public employee retirement systems, under chapter thirty-two"). See also Everett Retirement Board v. Board of Assessors of Everett . 19 Mass.App.Ct. 305, 309 (1985) (observing that although municipal retirement boards are not subject to municipal or judicial control, PERA possesses the statutory authority "to discipline an errant board, perhaps through the regulatory power conferred by G.L. c. 32, §21(4)"). Even assuming that PERA's oversight authority extends to fiscal matters, vesting in PERA general responsibility for the efficient administration of the public employee retirement 114 P.D. 12 that it does not. In order to qualify under the "expressly provided by law" exception to G.L. c. 7, § 4G, a statute conferring a power or imposing a duty upon the commissioner with respect to the Teachers' Retirement Board need not mention the Board by name.6 Cf. Mitchum v. Foster, 407 U.S. 225, 237 (1972) ("in order to qualify under the 'expressly authorized' exception of the [federal] anti-injunction statute [28 U.S.C. § 22831, a federal law need not contain an express reference to that statute"). Rather, express authority can also be conferred pursuant to G.L. c. 7, § 4G by a statute which applies to a class of entities of which the Board is a member. In this case, G.L. c. 30, § 25B applies in pertinent part to a "board . . . within any of the executive offices established by chapters six A or seven . . ."As noted previously, the Teachers' Retirement Board is plainly a board within an executive office created by chapter seven. See G.L. c. 7, §§2, 4G.7 I do not question that the Board has a large degree of autonomy over its administration of the teachers' retirement system. See 1978/79 Op. Att'y Gen. No. 29, Rep. A.G., Pub. Doc. No. 12 at 161 (1979). However, this does not by itself exempt the Board or its staff from the requirements of G.L. c. 30, § 25B. A plain reading of G.L. c. 30, § 25B, in conjunction with the other statutes discussed herein, manifests the legislature's intent that members and employees systems does not preclude the vesting of oversight responsibility with respect to particular activities of the Board in other state agencies. See e. g. . G.L. c. 15, §17 (reimbursement for expenses of members of the Board is subject to the approval of the governor); G.L. c. 7, §4G (commissioner of administration has those powers and duties with respect to the Board which are expressly provided by law). PERA itself apparently does not take the position that the Board is exempted from the operation of G.L. c. 30, §25B. See Letter from Joseph I. Martin, Deputy Commissioner, Division of Public Employee Retirement Administration, to Frank T. Keefe, Secretary, Executive Office for Administration and Finance (May 6, 1988). I also note in passing that PERA is subject to the commissioner's direction, control and supervision as an agency under EOAF and that EOAF is responsible for the exercise of all powers and the performance of all duties assigned by law to PERA. See G.L. c. 7, §§4, 4A. " Indeed, it appears that the only explicit references to the Teachers' Retirement Board in the Massachusetts General Laws are contained in the Board's enabling statute, G.L. c. 15, §§16-18, and the Public Pension Law, G.L. c. 32. 7 Significantly, G.L. c. 30, §25B by its terms applies "in the case of a department, office, commission, board, or institution within any of the executive offices established by chapters six A and seven ...." Thus, in contrast to G.L. c. 7, §4 (discussed infra) . §25B does not distinguish between agencies which are within an executive office and subject to the supervision and control of that executive office on the one hand and agencies which are within an executive office but not subject to the supervision or control of that executive office on the other. P.D. 12 115 of the Teachers' Retirement Board be subject to the terms of § 25B. For example, the statute which governs the relationship between EOAF and its component agencies reads in pertinent part: The governor shall appoint a commissioner of administration . . Except in the cases of the agencies named in sectionfour G, he shall be responsiblefor the exercise of all powers and the performance of all duties assigned by law to the executive officefor administration andfinance to any division, bureau or other administrative unit or agency under said office. He shall be the executive and administrative head of said office, and every division, bureau, section and other administrative unit and agency within said office, other than the agencies named in sectionfour G shall be under his direction, control and supervision. G.L. c. 7, § 4. (Emphasis added.) Construed together in the most plausible manner, G.L. c. 7, §§4 and 4G provide that the commissioner is responsible for all powers and duties assigned by law to any agency within EOAF, except for those powers and duties assigned by law to the agencies listed in § 4G. With respect to § 4G agencies, the commissioner may exercise only those powers and duties which are specifically assigned to the commissioner and by law made applicable to the agencies listed in § 4G. See, e.g., G.L. c. 30, § 25B. This interpretation is reinforced by St. 1987, c. 199, § 47, which declares various agencies "to be within and under the supervision and control of the office of human resource administration ..." while other agencies, including the Teachers' Retirement Board, the Civil Service Commission, and the Contributory Retirement Appeals Board, are declared "to be within the office of human resource administration but not under its supervision or control..." Notwithstanding this language, the enactment proceeds to bestow certain powers and duties upon the undersecretary for human resource administration with respect to "the departments, commissions, offices, boards, divisions, institutions and other agencies within the office of human resource administration . . ." [ id. (emphasis added)], including, for example, "the prior review of any contract, agreement or other financial arrangement having a value of five thousand dollars or more entered into by any of said departments,. . . boards . . . and other agencies . . ." St. 1987, c. 199, § 47(iii) (emphasis added). In contrast, some other specified powers and duties of the undersecretary expressly apply to "any such department, . . . board . . .or agency other than the civil service commission" or to any such department, . . . board ... or other agency other than the contributory retirement appeals board . . . ." St. 1987, c. 199, § 47(iv) (emphasis added). As noted above, both the Civil Service Commission and the Contributory Retirement Appeals Board, like the Teachers' Retirement Board, are within the Office of Human Resource Administration but not subject to its supervision and control. It is thus apparent that the legislature intended general references to "departments ... boards ... and other agencies within the office of human resource administration" (emphasis added) in St. 1987, c. 199, § 47 to include the agencies not subject to the undersecretary's supervision and control. Where another result was intended, the legislature has made this distinction clear. For example, the last paragraph of § 47 provides, among other things, that the 116 P.D. 12 undersecretary "may request and shall receive the assistance of any personnel within any agency within and subject to the supervision and control of the office of human resource administration." Also consistent with this reading of §.4 and § 4G is the Opinion of the Attorney General which affirmed the Board's authority to appoint its own staff. See 1978/79 Op. Atfy Gen. No. 29, Rep. A.G., Pub. Doc. No. 12 at 161 (1979). As that opinion noted: It would be anomalous for the Legislature to have ordained that the Board's executive secretary ... be appointed by precisely the same agency [EOAF] from whose direction and control the Board is exempted. Such a suggestion contradicts the clear legislative intent to preserve the Board's automony and cannot be accepted. Id. at 162-63. (Footnote omitted.) The autonomy of the Board with respect to personnel decisions has no bearing, however, upon the question presented here. The legislature could legitimately decide that the day to day operation of the Board, including the authority to hire and fire its own staff, was not within the purview of EOAF. To expressly confer upon EOAF the power to regulate out of state travel by the Board is not inconsistent with the legislative intent to have a Board which independently administers the teachers' retirement system. I conclude that the power to regulate out of state travel at public expense is a power conferred upon the commissioner with respect to the Board that is "expressly provided by law" within the meaning of G.L. c. 7, § 4G. Arguably, the applicability of G.L. c. 30, § 25B to out of state travel by the Board is drawn into question by the Massachusetts Appeals Court's decision in Everett Retirement Board v. Board of Assessors of Everett, 19 Mass.App.Ct. 305 (1985). Upon inspection, however, the Everett case reveals key distinctions between municipal and state retirement systems. The statutory provision at issue in Everett8 stated that amounts certified by a municipal retirement board to a mayor or board of selectmen, as the case may be, " 'shall be appropriated and paid ... to the treasurer-custodian' of the retirement system."^ Id., at 306-307. (Emphasis added.) The court in Everett concluded that because "a retirement board 8 G.L. c. 32, §22(7)(c)(iii). 9 Relevant for the purposes of this opinion, of course, is the analogous provision applicable to the Board, G.L. c. 32, §22(7)(b), which states that: ... the board shall certify forthwith to the commissioner of education the amounts necessary to be appropriated and paid for such fiscal year by the commonwealth for the three aforesaid funds [including the expense fund] of the teachers' retirement system, and ... such amounts shall be included in the appropriations for such fiscal year for the department of education . . . G.L. c. 32, §22(7)(b). (Emphasis added.) RD. 12 117 established under G.L. c. 32 is independent of the city or town whose employees it serves" (id., at 308), the City of Everett did not have the authority under either G.L. c. 59, § 20A (a "Proposition 2 1/2" measure) or G.L. c. 44, §§ 31, 31A and 32 (provisions of the "Municipal Finance Law") to refuse to appropriate funds for expenses duly certified by the Everett Retirement Board. The court's reasoning in Everett, however, does not support a finding that the Board is independent of the Commonwealth in the same way that local retirement boards are independent of their host municipalities.^ As the court noted in that case: "[t]hat the retirement system is independent of the host municipality is underscored by a provision in G.L. c. 32, § 28(3)(b), that for towns with a population of under 10,000, the employees are part of the county retirement system. Id. at 308-309. This provision is unique to municipal retirement systems and does not affect the nature of the relationship between the Teachers' Retirement Board and the Commonwealth. "While the statutes creating the four retirement systems have a general resemblance, they differ from one another in various respects." Davis v. School Committee of Somerville, 307 Mass. 354, 357 (1940). The court's holding in Everett makes clear that municipal retirement boards are not municipal agencies and that employees of municipal retirement boards are not municipal employees. As previously discussed, however, the Teachers' Retirement Board is a state agency and employees of the Board are state employees.* * In addition to the differences between the retirement systems mandated by G.L. c. 32, the Board is subject to a variety of controls not applicable to municipal retirement systems. See e.g., St. 1987, c. 199, § 47(xi) (requiring the undersecretary of human resource administration to "ensur[e] the dissemination by the board of the teachers' retirement system and the board of the state employees' retirement system to the members and beneficiaries of members thereof of information concerning the actuarial status of [those two systems] and of the members' or beneficiaries' rights and obligations under the provisions of [G.L. c. 32]"); St. 1987, c. 199, § 47(xii) (requiring the undersecretary to "ensur[e] the maintenance by the board of the teachers' retirement system and the board of the state employees' retirement 10 in so ruling, I acknowledge the statement of the Supreme Judicial Court in O'Connor v. County of Bristol . 329 Mass. 741, 746 (1953) that "[e]ach of the several retirement systems, state, county, city or town, is in general an independent unit, having its own separate assets and liabilities and is under the jurisdiction of its own separate board." Nothing in this opinion suggests, however, that the Teachers' Retirement Board, as a state agency within EOAF, should not be subject to the provisions of G.L. c. 30, §25B with regard to out of state travel. At the time of the O'Connor decision, of course, EOAF did not exist and the Board was contained within the Department of Education. See St. 1945, c. 658, §4. 1 * It may be that the Board's status as a state agency results in differences between the teachers' retirement system and the municipal retirement systems which are anomalous from the point of view of sound public pension law and administration. However, the resolution of any such anomalies is, of course, the prerogative of the legislature rather than the executive branch. 118 P.D. 12 system of programs of pre-retirement counselling services for the members thereof). For the foregoing reasons, I conclude that G.L. c. 30, § 25B applies to the Massachusetts Teachers' Retirement Board. Very truly yours, JAMES M. SHANNON ATTORNEY GENERAL P.D. 12 119