No. 00/01-2
April 25, 2001

Howard W. Koh, MD, MPH
Commissioner
Department of Public Health
250 Washington Street
Boston, MA 02108-4619

Dear Commissioner Koh:

You have requested an opinion on whether local boards of health have jurisdiction to enforce the provisions of the State Sanitary Code against state-owned facilities, indicating that your request was prompted by local boards' efforts to inspect swimming pools located at facilities of the University of Massachusetts. Consistent with the conclusions reached in a long line of Attorney General opinions, including one issued to the Secretary of Public Safety on October 30, 2000, I conclude that the Commonwealth and its agencies are exempt from M.G.L. c. 111, § 127A , the statute authorizing the Department of Public Health to promulgate the Sanitary Code, and that local boards of health do not possess enforcement authority over property owned by the University of Massachusetts with respect to the provisions of the Sanitary Code. I recognize, of course, the importance of ensuring that facilities owned by the Commonwealth or its agencies are maintained in a manner that protects the health and well-being of the public. Nothing in my conclusion would prevent the officials in control of such facilities from voluntarily complying with the provisions of the Sanitary Code. In addition, given that my conclusion is based upon the language of the relevant statute, you may wish to consider whether to propose legislation expressly making the Sanitary Code applicable to such facilities.

In reviewing M.G.L. c. 75, the enabling statute for the University of Massachusetts, the Supreme Judicial Court has concluded that the University is "an agency of the Commonwealth." McNamara v. Honeyman, 406 Mass. 43, 47 (1989); see also Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 9 (1992). 1 The University's enabling statute provides that the University's Board of Trustees, in exercising its statutory authority, "shall not in the management of the affairs of the university be subject to, or superseded by, any other state agency, board, bureau, commission, department or officer," with certain exceptions not relevant hereto. M.G.L. c. 75, § 1; see 1972/73 Op. Att'y Gen. No. 2, Rep. A.G., P.D. No. 12 at 42-44 (1972) (discussing the broad scope of the Board of Trustees' statutory authority under G.L. c. 75); see also St. 1960, c. 773, § 2 (containing similar provision for University of Massachusetts Building Authority).

In relevant part, M.G.L. c. 111, § 127A , provides that the Department of Public Health "shall adopt, and may from time to time amend, public health regulations to be known as the state sanitary code," which code "shall deal with matters affecting the health and well-being of the public in the commonwealth in subjects over which the department takes cognizance and responsibility." Id. Local boards of health "shall enforce said code in the same manner in which local health rules and regulations are enforced, but, if any such local boards fail after the lapse of a reasonable length of time to enforce the same, the department may in like manner enforce said code against any violator." Id.

As noted above, several prior Attorney General opinions conclude that, absent a clear legislative directive to the contrary, the Commonwealth is to be considered exempt from a generally applicable regulation promulgated under the authority of statutes enacted by the Legislature in the exercise of its police powers. See 2000 Op. Att'y Gen. No. 1 (Oct.30, 2000) (concluding that the State Fire Code promulgated under M.G.L. c. 148 does not apply to state-owned buildings) and opinions cited therein. 2 This rule is closely related to the rule that the Commonwealth cannot be sued in its own courts except in strict accordance with statute. In that context also, "[t]he rules of construction governing statutory waivers of sovereign immunity are stringent. . . . Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them." Woodbridge v. Worcester State Hospital, 384 Mass. 38, 42 (1981); accord C & M Construction Co. v. Commonwealth, 396 Mass. 390, 392 (1985); see also Onofrio v. Department of Mental Health, 411 Mass. 657, 659 (1992) (holding statute that waives public employers' exemption from liability, bars prejudgment interest, and is silent on postjudgment interest does not permit award of postjudgment interest by necessary implication, given that such interest is not an element of damages).

As with the doctrine of sovereign immunity, although the Legislature may elect to waive the Commonwealth's exemption from regulation in particular instances, such a waiver is not to be presumed or inferred, but must be explicit. See, e.g., Perez v. Boston Housing Authority, 368 Mass. 333, 338, 340 (1975) (concluding that "the Legislature did not intend to establish liability on the part of the Commonwealth or its departments" in enacting M.G.L. c. 111, § 127N, the statute authorizing tenants of public housing to bring actions to enforce the Sanitary Code, after finding that the terms of the statute "are plainly inappropriate to identify the State or any of its agencies"); Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct. 92, 97 (1989) (concluding that the language of M.G.L. c. 40A, § 3, the State Zoning Act, does not amount to the "express and unmistakable suspension" which would be required to find an express waiver of the usual State supremacy over land use regulation).

There is no express statement in M.G.L. c. 111, § 127A, indicating that the Commonwealth is subject to the provisions of any regulations adopted pursuant thereto. 3 By contrast to this provision, two other provisions of M.G.L. c. 111 contain express waivers of the Commonwealth's exemption from regulation, as discussed below. Thus, if the Legislature intends to make the Commonwealth subject to any provision of M.G.L. c. 111, it knows exactly how to do so. See Commonwealth v. Dodge, 428 Mass. 860, 865 (1999) ("[W]here the Legislature has employed specific language in one [section of an act], but not in another, the language should not be implied where it is not present.") (internal quotation omitted).

In marked contrast to Section 127A, Section 142E of G.L. c. 111 contains an express waiver of the Commonwealth's exemption from public health regulation. In Perez v. Boston Housing Authority, 368 Mass. at 338-39, the Supreme Judicial Court compared Sections 142E and 127N of G.L. c. 111. With reference to air pollution control regulations promulgated pursuant to Section 142E of the statute, the Court stated that "when the Legislature did in fact determine to apply public health regulations, enacted pursuant to G.L. c. 111, to State agencies as well as other entities, it expanded the coverage . . . to include '[a]ll departments, agencies, commissions, authorities and political subdivisions.'" Id. at 338-39. By its terms, Section 142E creates a regulatory scheme that "is universally applicable to private and public entities." City of Boston v. Massachusetts Port Authority, 364 Mass. 639, 658 (1974). The air pollution control regulations are thus "enforceable against public bodies to the same extent that they are enforceable against individuals and private businesses." Id. at 653. 4

Similarly, Section 150A of G.L. c. 111 contains an express waiver of the Commonwealth's exemption from regulation. In the context of the state-wide regulation of the siting of solid waste disposal facilities, the Legislature specified that the procedures regarding the Department of Environmental Protection's oversight of the location and operation of such facilities are applicable to facilities "owned or operated by an agency of the commonwealth." M.G.L. c. 111, § 150A. In like manner, M.G.L. c. 143, the statute that authorizes the promulgation and enforcement of a state-wide building code, contains an explicit waiver of the Commonwealth's exemption from regulation. In particular, Chapter 143 states that its provisions

relative to the safety of persons in buildings shall apply to buildings and structures, other than the state house, owned, operated or controlled by the commonwealth, and to buildings and structures owned, operated or controlled by any department, board or commission of the commonwealth, or by any of its political subdivisions, in the same manner and to the same extent as such provisions apply to privately owned or controlled buildings occupied, used or maintained for similar purposes.

M.G.L. c. 143, § 2A. By contrast to such provisions, M.G.L. c. 111, § 127A, the statute by which the Department of Public Health promulgated the Sanitary Code, contains no such express waiver of the Commonwealth's exemption from regulation.

Furthermore, the well established presumption against delegation to municipalities of any authority to regulate the Commonwealth supports this conclusion, given that M.G.L. c. 111, § 127A, vests local boards of health with primary enforcement of the Sanitary Code. This presumption is traced back to the seminal case of Teasdale v. Newell & Snowling Construction Co., 192 Mass. 440 (1906), in which the City of Quincy Board of Health attempted to bar a state contractor from establishing a temporary stable to be used during its work on a project to create parkland because the contractor had not obtained a stable license from the Board as was assertedly required by statute. That effort failed because "[i]t is not to be presumed that the Legislature intended to give to the local licensing board the authority to thwart the reasonably necessary efforts of the park commissioners to perform their duty as agents of the State." Id. at 443.

By contrast to M.G.L. c. 111, § 127A, which vests primary enforcement of the Sanitary Code with local boards of health, several statutory provisions with an express waiver of the Commonwealth's exemption from regulations provide for enforcement of the regulations by the relevant state agency as to state-owned property, while providing for local enforcement as to all other property, so as to avoid the potential for local interference with state work. For example, M.G.L. c. 143 vests inspectors in the Division of Inspections of the Department of Public Safety with authority to enforce the state building code as to buildings "owned by the commonwealth or any departments, commissions, agencies or authorities of the commonwealth," while the statute vests local inspectors with authority to enforce the code as to all other buildings. M.G.L. c. 143, § 3A. Similarly, Section 150A of G.L. c. 111 vests the Department of Public Health with authority to determine whether to assign as a site for a solid waste disposal facility a place owned or operated by an agency of the Commonwealth, while the statute vests local boards of health with authority to make such determinations for any other place. Id.

Local boards of health have primary responsibility for enforcing the Sanitary Code under M.G.L. c. 111, § 127A. The potential for local interference with state work is one of the grounds on which Massachusetts courts have found the Commonwealth and its agencies to be exempt from proscriptions set forth in a generally applicable statute enacted by the Legislature in the exercise of its police powers, absent explicit legislative directive to the contrary. See, e.g., Inspector of Buildings of Salem v. Salem State College, 28 Mass. App. Ct. at 97. It is significant in this regard that the University's enabling statute prevents interference with the Board of Trustees, in exercising its statutory authority to manage the University's affairs, from being "subject to, or superseded by," state agencies or departments." M.G.L. c. 75, § 1. In light of that provision, it would be anomalous to suppose that the Legislature intended to subject the University to local supervision, absent explicit language to that effect. 5

Accordingly, I conclude that facilities located on property owned by the University of Massachusetts are not subject to the Sanitary Code, and that the local boards of health therefore lack authority to enforce the provisions of the Code against such property. As mentioned above, the officials in control of such facilities may elect to comply voluntarily with the provisions of the Sanitary Code, and you may wish to consider whether to propose legislation expressly making the Sanitary Code applicable to such facilities.

Sincerely,
Thomas F. Reilly


1Similarly, to the extent that the University of Massachusetts Building Authority retains any control over the University's facilities, I note that the Authority was constituted by the Legislature as "a public instrumentality and the exercise by the Authority of the powers conferred by [its enabling legislation] shall be deemed and held to be the performance of an essential governmental function." St. 1960, c. 773, § 2; see also Department of Community Affairs v. Massachusetts State College Building Authority, 378 Mass. 418, 426 (1979) (public character of College Building Authority requires inclusion within definition of term "public agency" under M.G.L. c. 79A).

2This principle does not apply to municipalities. See, e.g., 1965/66 Op. Att'y Gen. No. 12, Rep. A.G., P.D. No. 12 at 361 (1966) (concluding that State Sanitary Code applies to public school cafeterias, where neither the statute nor the Code exempts schools or cafeterias).

3 I recognize that Chapter V of the State Sanitary Code, 105 C.M.R. § 435.00 pdf format of    105cmr435.pdf  et seq., by which the Department of Public Health established minimum standards for swimming pools, provides that no person shall operate or maintain a swimming pool without obtaining a permit from the Board of Health on a form prescribed by the Commissioner of Public Health, and defines the term "person" to include "a city, town, county, or other governmental unit." 105 C.M.R. §§ 435.01; id., § 435.21 pdf format of    105cmr435.pdf  . However, even if the Department had expressly included the Commonwealth and its agencies within this definition, the limits to the scope of the Department's authority in such matters are set by the enabling statute, M.G.L. c. 111, § 127A .

4In particular, such regulations apply to the Port Authority given that the statute expressly includes authorities within its terms. Id. at 653, 657.

5 I am aware of an order issued in December of 1983 by the Hampshire Superior Court in Trejo v. Penza (C.A. No. 16871), an action brought by a student of the University of Massachusetts against the local housing inspector, seeking an order compelling an inspection of the student's apartment on campus. After the court denied the student's request for class certification, the court entered a one-page order on the student's motion for summary judgment, declaring that the local board of health is obligated to inspect dwellings located within the Town, upon request, including dwelling units owned or controlled by the University. Neither the University or the Department of Public Health were parties to the case, and no appeal was taken from the court's decision. In addition, the order does not address the issues raised herein. For these reasons, it is my opinion that the order is not controlling here.