Number 12. October 14, 1968

Number 12. October 14, 1968 HONORABLE MARTIN J. LYDON, PRESIDENT Lowell Technological Institute Lowell, Massachusetts 01854 Dear Doctor Lydon: You have requested my opinion on the power of the Board of Trustees of 48 P.D. 12 Lowell Technological Institute to forgive tuition to certain classes of students at the Institute. Your questions are as follows: "l.May the Trustees, by appropriate action of the body, make provision for the employment of graduate students at stipulated rates of compensation and under stipulated working conditions and as part thereof, provide for forgiveness of tuition for these graduate students so employed? "2. May the Trustees, by appropriate action of the body, provide for the forgiveness of tuition for sons and daughters of employees of the Institute?" Question 1 With reference to Question 1 , your letter states: "The Board of Trustees engages the services of certain graduate students for teaching undergraduate sections of various subjects. These graduate student teachers are employed in the 01 Permanent Salaries account, the 02 Temporary Services account and some are employed from the 03 Services, Non-Employees account. Compensa- tion for the graduate student selected for this teaching service is generally at the rate of one-half the Instructor's level of salary and this amount is paid to those employed throughout the school year, provided that service is rendered as agreed. "A Faculty Committee has presented a recommendation to the Board of Trustees which is supported by surveys conducted by the Faculty Committee. The results of the surveys indicate that graduate school teachers at many other colleges receive a stipend and free tuition. Those employed at this institute receive a salary as stated above but they are required to pay tuition. "In a previous opinion from the Department of the Attorney General it was suggested that forgiveness of tuition for a graduate student amounted to a fringe benefit for an employee, and it was recommended that approval of the Commissioner of Administration be sought on the granting of such a benefit to graduate students. Since that time this Institute's Charter has been changed and the Board of Trustees has been granted broad new powers and responsibilities under the so-called 'Fiscal Autonomy' law, a section of which permits the Trustees to establish salary rates for 'professors, tutors, instructors, teachers and other officers and assistants of the Institute.' " The previous opinion of this Department to which you refer is, I assume, the one issued on January 18, 1957 by a member of the staff of the then Attorney General, and does not, of course, constitute a formal opinion of the Attorney General. Whether or not the law in effect at that time is accurately stated in the 1957 opinion, you correctly point out that the pertinent laws have materially changed since then. Under the laws now in effect, I think that Question 1 must be answered in the affirmative. The boards of trustees of the various state colleges and universities, among them the Lowell Technological Institute, have recently been granted broad discretionary powers over the operation of their institutions. Report of the Attorney General for the Year Ending June 30, 1965, p. 140. These powers were P.D. 12 49 originally granted to the boards of trustees of the Institute by St. 1963, c. 701, amending G.L. c. 75A. The new powers cover a wide spectrum. Thus, G.L. c. 75A, § 1 provides that the Institute "shall be governed solely by the board of trustees whose authority, responsibility, rights, privileges, powers and duties . . . shall be the same as those customerily and traditionally exercised by governing boards of institutions of higher learning."* Section 7 empowers them to adopt "such rules and regulations for the government of the institute, for the management, control and administration of its affairs, for its faculty, students and employees, and for the regulation of their own body, as they deem necessary General Laws c. 75A, § 12 specifically deals with the staff of the Institute. It grants the trustees power to "elect the president, the necessary professors, tutors, instructors, teachers and other officers and assistants of the institute ..-.." The same section authorizes the trustees to determine "[t]he classification, title, salary range within the general salary schedule, and descriptive job specifications for each position ... for each member of the professional staff . . . ." Graduate students employed as teachers are clearly members of the Institute's "professional staff as that term is defined in § 12: "[A] 11 officers of the institute and all persons, except those whose duties are clerical, custodial, security, labor, maintenance and the like, employed for teaching, research, administration, extension, enforcement, control laws and regulatory services, technical and specialized academic support staff, and such related activities as shall be determined by the trustees of the institute." The comprehensive nature of the foregoing powers and the terms in which they are conferred convince me that the Legislature intended to leave the administration of the Institute largely in the hands of the trustees. This conclusion finds support in the legislative history of the pertinent statutes. General Laws c. 75A, §§1, 3B, 7 and 12, whereby most of these powers are conferred, were obviously derived from G.L. c. 75, §§ 1, 3, 8 and 14, whereby comparable powers are granted to the trustees of the University of Massachusetts in almost identical terms. As previously indicated, the statutory provisions relating to the Institute were inserted in the General Laws by St. 1963, c. 701; those relating to the University of Massachusetts were inserted a year earlier by St. 1962, c. 648. The 1962 statute was based on a bill submitted with the Report of the Special Commission on Budgetary Powers of the University of Massachusetts and Certain Related Matters (1962 House Doc. No. 3350). While the Report was directed primarily at the University of Massachusetts, its conclusions are stated in terms equally applicable to the Institute: "After considerable study this Commission arrived at the conclusion that the University and Lowell Technological Institute should operate under four essential controls. Beyond these reasonable limits, further restrictions on the authority of the trustees can lead to impairment of their ability to manage the institution as the public requires. These reasonable limitations upon the trustees are the following: "I. The General Court has the ultimate authority to determine *I assume that the proposed actions of the Trustees do not conflict with any of the deter- minations of the Board of Higher Education. See G.L. c. 15, § ID and G.L. c. 75A, § 1. 50 P.D. 12 general public policy for the University and implement that policy through legislation and appropriation. "II. Budget requests should be submitted in any prescribed form which the Governor and the Legislature believe will aid them in making wise decisions on the allocation of public funds. "III. Complete management and financial reporting is essential to the control agencies so that there may be adequate knowledge concerning state operations and to promote public understanding engendered when people know that their tax dollars are being spent to secure the maximum educational benefits. "IV. A post-audit of all accounts, either by the state auditor or by certified public accountants, is both necessary and desirable in accounting for public funds." Thus, it was the intention of the Legislature to give the trustees complete discretion in the administration of the Institute, subject only to such specific limitations as are set forth in the statutes. Since I have discovered nothing in the statutes to prevent the trustees from granting to its student teachers such fringe benefits as forgiveness of tuition, I conclude that it is within the trustees' discretion to do so. This is particularly true where the practice which the trustees propose to follow is widespread among institutions of higher learning throughout the country. Your letter indicates that forgiveness of tuition for student teachers is such a practice. Your Provost has advised us that according to a report filed on November 1, 1967, eight out of ten New England institutions offering graduate courses which were surveyed remit tuition to graduate teaching assistants - the remaining two consisting of a university which employs no graduate teaching assistants, and Lowell Technological Institute. He quotes the Dean of your Graduate School as saying that he knows of no college in the country that employs graduate teaching assistants without remitting tuition. Thus, the power to waive tuition for student teachers may well be among the powers "customarily and traditionally exercised by governing boards of institutions of higher learning," conferred upon the trustees of the Institute by G.L. c. 75A, § 1. In answer to Question 1, therefore, it is my opinion that the trustees of the Institute do have the power to forgive the tuition of graduate students employed by the Institute in a teaching capacity. Question 2 Insofar as Question 2 relates to forgiveness of tuition for sons and daughters of members of the Institute's professional staff, I answer it in the affirmative. This answer is, I believe, required by most of the same reasons that led to my affirmative answer to Question 1. There does, however, appear to be one distinguishing factor between the two questions: your Provost has indicated that the practice of forgiving tuition for children of employees, while common among institutions of higher learning, is by no means universal. Thus, the power to forgive tuition for this class of students may not be among "those customarily and traditionally exercised by governing boards of institutions of higher learning" within the meaning of G.L. c. 75A, § 1. This, of course, does not in itself present any obstacle to the trustees adopting the practice. Indeed, the mere fact that the practice is a P.D. 12 51 common one argues for the trustees' authority to adopt it. The Commission Report previously referred to stressed the need for improving the competitive position of Massachusetts institutions of higher learning in regard to obtaining and retaining the services of eminent scientists and scholars. 1962 House Doc. No. 3350, pp. 24, 36. The same objective is reflected in G.L. c. 75A, § 12, whereby the trustees, in establishing the classification, title and salary plan for the professional staff, are directed to "give recognition to the need to establish and maintain appropriate academic ranks and titles as may be appropriate for higher education in order to provide for outstanding scholars, scientists and teachers." If the trustees believe that forgiveness of tuition for the sons and daughters of the professional staff is an effective means of competing for their services, I am of the opinion that the trustees have the statutory power to adopt such a practice. In arriving at this conclusion, I am aware of a 1959 opinion of Assistant Attorney General Fred W. Fisher to the opposite effect. Report of the Attorney General for the Year Ending June 30, 1960, p. 52. That opinion, like the one alluded to in my answer to Question 1 , was rendered before the trustees had been given the broad powers conferred by G.L. c. 75A, as amended by St. 1963, c. 701. The question raised in the 1959 opinion was whether G.L. c. 75A, § 14, which authorizes the trustees to "fix the rates of tuition" at the Institute, permitted forgiveness of tuition to children of its employees. I agree that it did not. For the reasons already stated, however, I believe that other and more recently enacted provisions of G.L. c. 75A do authorize forgiveness of tuition for children of the professional staff. The foregoing comments, of course, apply only to members of the professional staff. To the extent that Question 2 relates to children of members of the non-professional staff, I feel constrained to answer it in the negative. Although the trustees now have broad powers regarding the recruitment and remuneration of professional personnel, the 1963 amendment to G.L. c. 75 A, § 12 did little more than perpetuate the pre-existing law with respect to non-professional employees. Thus, it provides that they "shall continue as state employees under the provisions of chapter thirty and except as otherwise provided in this paragraph, shall be employed in authorized permanent positions in accordance with the provisions of section forty-five of said chapter. . . ." General Laws c. 30, § 45 requires the Director of Personnel and Standardization to "classify all appointive offices and positions in the government of the commonwealth" with exceptions not here material, and to "allocate . . . each such office or position to the appropriate job group in the salary schedule set forth in section forty-six . . . ." In this way most of the powers which § 12 confers upon the trustees with respect to professional personnel ("the classification, title, salary range . . .") are vested in the Director of Personnel and Standardization where non-professional personnel are involved. The only exception appears in a provision of § 12 authorizing the trustees "without prior approval and within the limits of appropriations to establish and fill temporary, part time and seasonal positions within existing titles and rates within available appropriations for the fiscal year." This is clearly insufficient to permit the trustees to offer the sort of fringe benefits to non-professional employees that the statute allows with respect to the professional staff. The sharp distinction in treatment of professional and non-professional employees under G.L. c. 75A, § 12 evidently resulted from a legislative determination that employees in the latter category should not be treated differently from employees of other state agencies. See Report of the Special 52 P.D. 12 Commission on Budgetary Powers of the University of Massachusetts and Certain Related Matters, 1962 House Doc. No. 3350, p. 37. The same policy is reflected in G.L. c. 30, § 45 (which is incorporated by reference in G.L. c. 75A, § 12): "In so allocating or reallocating any such office or position, the said director [of personnel and standardization] shall use standard, objective methods and procedures for evaluating the same so that the principle offair and equal pay for similar work shall be followed and all offices and positions in the same class shall be allocated to the same job group. " (Emphasis supplied.) This statutory declaration of equal treatment of state employees who perform similar work leads me to the conclusion that the trustees have no more power to grant forgiveness of tuition to sons and daughters of the Institute's non-professional employees than to those of any other state employees. In summary, then, in answer to your second question, I am of the opinion that the trustees of the Institute may forgive tuition for sons and daughters of its professional staff, but not for sons and daughters of its non-professional staff. Reluctant as I am to reach this conclusion, the governing statutes leave me no alternative. Any change in the law governing the trustees' powers over non-professional employees must come from the Legislature. Of course, any decision by the trustees to avail themselves of this limited power in favor of professional employees is one left entirely to the discretion of the trustees. Very truly yours, ELLIOT L. RICHARDSON Attorney General