Recently the SJC ruled that the Sex offender registry board exceeded its authority in COMMONWEALTH vs. MALCOM S. MAKER 459 Mass. 46 (2011)
The court in deciding stated “A regulation of the Sex Offender Registry Board (board) requiring incarcerated level 2 and level 3 sex offenders to register in person at their local police department within two days of their release from custody exceeded the board’s statutory authority and was therefore invalid, where nothing in the sex offender registry statute, G. L. c.6, §§ 718C-178P, authorized the board to create new registration requirements such as the regulation at issue.
3. Discussion. By requiring incarcerated level 2 or 3 offenders to verify their registration data in person within two days of release, the regulation at issue in this case adds a further component to the statutory registration scheme detailed above. See 803 Code Mass. Regs. § 1.04(7)(b). The first reported question requires us to consider whether the board has the authority to enact such a regulation. We conclude that it does not and that the regulation is invalid.
An administrative agency’s duly enacted regulations are entitled to a presumption of validity. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768 , 775 (2006). Regulations are invalid, however, when the agency utilizes powers “neither expressly nor impliedly granted by statute.” Morey v. Martha’s Vineyard Comm’n, 409 Mass. 813 , 818 (1991). Although we look to the statute as a whole to determine the scope of the agency’s power, see Grocery Mfrs. of Am., Inc. v. Department of Pub. Health, 379 Mass. 70 , 75 (1979), an agency can exercise only “the powers and duties expressly conferred upon it by statute and such as are reasonably necessary to carry out its mission.” Morey v. Martha’s Vineyard Comm’n, supra.
Nothing in the statute authorizes the board to create new registration requirements such as the regulation here at issue. The statute does not delegate expressly, to the board or any other entity, the power to modify or supplement the registration requirements created in the statute. Nor is this power implied by the board’s duties with respect to offender classification and data collection and dissemination. The extensive system of registration requirements created by the statute ensures that the board receives the information it needs to fulfil its statutory duties. Creating additional registration requirements cannot fairly be considered “necessary to carry out its mission.” The wisdom or practical advantages of creating new registration obligations is of no relevance when the board lacks the power to do so. See id.
It is true that, in addition to the board’s specific duties, the statute confers upon the board a more general authority to “promulgate rules and regulations to implement the provisions of” the statute. G. L. c. 6, § 178D. The Commonwealth argues that this language permits the board to promulgate any regulations “reasonably necessary” to effectuate the statute’s over-all purpose of protecting the public from sex offenders. See St. 1999, c. 74, § 1. This argument grants to the board a sweeping authority unjustified by the language of G. L. c. 6, § 178D. That section authorizes regulations to implement the statute; it does not confer an unfettered authority to enact any regulation that protects the public from sex offenders. Moreover, in light of the comprehensive registration requirements already present in the statute itself, it is difficult to imagine that any further registration obligations are “reasonably necessary.”
The board, which is not a party here but has participated in this case as amicus curiae, suggests that the regulation is not a new requirement at all but rather a mechanism for ensuring compliance with existing registration requirements; and that with respect to incarcerated offenders, the statutory registration requirements are insufficiently comprehensive in two particulars. By addressing these “gaps,” the board argues, the regulation merely implements the statute’s provisions and is a proper exercise of the board’s power pursuant to G. L. c. 6, § 178D.
The first alleged “gap” noted by the board pertains to the obligation of level 2 and 3 offenders to appear at their local police department annually (or every thirty days if homeless) to verify registration data. See G. L. c. 6, § 178F 1/2 . The second “gap” pertains to the requirement that offenders provide verification of address “[u]pon registering.” See id. at § 178E (m). The board contends that, although incarceration renders compliance with these duties impossible, incarcerated offenders are not exempt from these requirements. The regulation fills the alleged “gaps” by ensuring that such offenders appear and confirm their addresses at the first possible date, i.e., just after release.
The board’s argument is unpersuasive because it fabricates gaps in the statute where none exist. The Legislature is unlikely to have overlooked the fact that incarcerated offenders cannot report to local police or confirm a future address. Moreover, using the statutory scheme, the board can acquire and verify the information and whereabouts of a level 2 or 3 offender released from incarceration just as well as it can for all other level 2 or 3 offenders. Before his release, an incarcerated offender must register with the board and provide his intended future address. See G. L. c. 6, § 178E (a). If, after his release, he does not live where he intended to live, he must inform the board of that change of address and confirm his new address. See id. at § 178E (h), (m). And on a regular basis thereafter, he must verify his information in person with the local police. See id. at § 178F 1/2.
The regulation at issue imposes an additional registration obligation but provides no information or security that the statute, standing alone, does not provide. Because it does not implement the statutory registration requirements but rather adds to them, and because the board is not vested with any authority to create new registration requirements, 803 Code Mass. Regs. § 1.04(7)(b) is outside the board’s authority and is invalid.
4. Conclusion. For the reasons set forth above, we answer the first reported question, “No,” and order that the defendant’s sentence and conviction be vacated. Because we conclude that the regulation is invalid, we answer the second question, “No,” as well. The matter is remanded to the Boston Municipal Court Department for further proceedings consistent with this opinion. So ordered.”
Attorney Ronald A. Sellon