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Full text of "Report of the attorney general for the year ending .."

Public Document 



No. 12 



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REPORT 



ATTORNEY GENERAL 



Year Ending June 30, 1969 




Publication of this Document Approved by Alfred C. Holland. State Purchasing Agent. 
y()()-()-69-94y7Sy Estimated Cost Per Copy: $4,155 



MAY 3 1971 
STATE HOUSE, BOSTON 

MASS. OFFICIAL^ 



(Hljr (ftommnuwraltlj nf HaHsarljuaPttfi 

Boston, December 3, 1969 
To the Honorable Senate and House of Representatives: 

I have the honor to transmit herewith the report of the Department of the 
Attorney General for the year ending June 30, 1969. 



Respectfully submitted, 

Robert H. Quinn 
Attorney General 



P.D. 12 



®ljr CommmtttiFaltl) nf HasaarliuBPtta 



DEPARTMENT OF THE ATTORNEY GENERAL 



A ttorney General 
ELLIOT L. RICHARDSON 

(resigned January 23, 1 969) 

Robert H. Quinn 
(elected by Legislature January 23, 1969) 



First A ssistant A ttorney General 

James J. Kelleher 9 

Wilmot R.Hastings 2 " 13 



Assistant Attorneys General 



Ruth I. Abrams 6 
Christopher J. Armstrong 12 
Roger L. Aube 4 
Richard E. Bachman 
LouisS.Barr3-l6 
Shirley D. Bayle 13 
Aileen H. Belford 
Daniel T. Brosnahan 8 
George D. Brown 12 
Oscar S. Burrows 
Eugene R. Capuano 
Mark L. Cohen 
Donald L. Conn 12 
Russell M. Coombs 13 
Barry F. Corn 
Thomas J. Crowley 5 
Albert F. Cullen Jr. 7 
JohnW. Delaney3-i2 
Alan J. Dimond 17 
Carmen L. Durso 
JohnM.Finn 3 " 16 
Samuel W. Gaffer 
David B.Gittelsohn 7 
Howard W.Glaser 12 
PaulM.GollubiO 
Frederic E. Greenman 13 
Edward W. Hanley III 3 
David C. Hawkins 13 
Henry S. Healy 13 
Robert L. Hermann 



George V. Higgins 3 
Harold J. Keohane 6 
James P. Kiernan 8 
Donald Koleman 
James B. Krasnoo 11 
Carter Lee 

Richard L. Levine 3 " 15 
Bernard Manning 3 
Walter H. Mayo III 
Bruce G. McNeill 3 
Robert L. Meade 16 
Howard M. Miller 17 
David G. Nagle Jr. 7 
Lawrence H. Norris 8 
H. Peter Norstrand 13 
Henry F. O'Connell Jr. 8 
James J. O'Leary 3 " 12 
Paul F.X. Powers 
Glendora M. Putnam 
Theodore Regnante Sr. 
Allan G. Rodgers 3 " 13 
Charles H. Rogovin 14 
Thomas A. Sheehan 7 
George W. Spartichino 7 
George R. Sprague 13 
George A. Stella 3 
Herbert F. Travers Jr. 16 
Elizabeth G. Verville 
Henry G. Weaver Jr. 12 



Assistant Attorney General; Director, Division of Public Charities 
James J. Kelleher 



P.D. 12 



Assistant Attorneys General Assigned to Department of Public Works 



Burton Berg 
Robert W. Coughlin 7 
Coleman G. Coyne 
Willie J. Davis 
Richard T. Dolan 7 
Robert H. Gordon 
Edward D. Hicks 
Daniel J. Leonard 
Charles W. Patterson 



Alfred R. Podolski 
Harold Putnam 
Rudolph A. Sacco 16 
Edwin M. Satter 16 
Richard L. Seegel 
John E. Sheehy 
F. Dale Vincent Jr. 
John W. Wright 



Assistant Attorneys General Assigned to Metropolitan District Commission 



Robert C.Gerrardl- 11 
Peter R. Leone 1 1 



John M. Rose 
Richard A. Savrann 



Assistant Attorneys General Assigned to the 
Division of Employment Security 



Joseph S. Ayoub 



Hartley C. Cutter 



Assistant Attorneys General Assigned to Veterans' Division 
John F. Houton 4 Richard E. Mastrangelol 7 

Chief Clerk 
Russell F. Landrigan 

Assistant Chief Clerk 
Edward J. White 



1 Appointed July, 1968 

2 Appointed August, 1968 

3 Appointed September, 1968 
4 Appointed February, 1969 
5 Appointed March, 1969 
6 Appointed April, 1969 
7 Appointed May, 1969 
8 Appointed June, 1969 



STerminated July, 1968 
l°Terminated August, 1968 
UTerminated December, 1968 
l 2 Terminated January, 1969 
l 3 Terminated March, 1969 
l 4 Terminated March, 1969 
l 5 Terminated April, 1969 
l 6 Terminated May, 1969 
l 7 Terminated June, 1969 



P.D. 12 5 

STATEMENT OF APPROPRIATIONS AND EXPENDITURES 

For The Period 
July 1,1968 -June 30, 1969 

Appropriations 

0801-02 Administration $1,487,033.00 

0801-05 Recovery of Certain Unclaimed Court Deposits 24,082.19 

0801-10 Certain Legal Services 21,472.00 

0802-02 Settlement of Claims 108,000.00 

Total $1,640,587.19 



Expenditures 

0801-02 Administration $1,311,106.48 

0801-05 Recovery of Certain Unclaimed Court Deposits 3,368.81 

0801-10 Certain Legal Services 20,448.00 

0802-02 Settlement of Claims 108,000.00 

Total $1,442,923.29 



Income 

0801-40-01-40 Fees - Filing Reports - Charitable Organizations $ 14,058.00 
0801-40-02-40 Fees - Registration - Charitable Organizations . . 2,696.00 
0801-40-03-40 Fees - Professional Fund Raising Council or 

Solicitor 90.00 

0801-69-99-40 Miscellaneous . .74.52 

Total $16,918.52 



Financial Statement Verified (under requirements of C. 7, S 19 G.L.) May 21, 
1970. 

By Joseph T. O'Shea 

For the Comptroller 

Approved for publishing. 

M. Joseph Stacey, 
Comptroller 



P.D. 12 



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DEPARTMENT OF THE ATTORNEY GENERAL 

Boston, December 1, 1969 

To the Honorable Senate and House of Representatives: 

Pursuant to the provisions of section 11 of chapter 12 of the General Laws, as 
amended, I herewith submit my report. 

The cases requiring the attention of this department during the fiscal year 
ending June 30, 1969, totaling 20,063 are tabulated as follows: 

Extradition and interstate rendition 114 

Land Court Petitions 169 

Land Damage cases arising from the taking of land: 

Department of Public Works 1,481 

Metropolitan District Commission 101 

Civil Defense 2 

Department of Mental Health 20 

Department of Natural Resources 16 

Department of Public Safety 11 

Department of Public Utilities 14 

Government Center Commission 2 

Massachusetts Maritime Academy 1 

Salem Teachers College 10 

Southeastern Massachusetts Technological Institute 3 

State Colleges 1 

University of Massachusetts 13 

Miscellaneous cases, including suits for the collection of 

money due the Commonwealth 6,139 

Estates involving application of funds given to public 

charities 2,953 

Settlement cases for support of persons in State 

institutions 598 

Small claims against the Commonwealth 186 

Workmen's compensation cases, first reports 7,347 

Cases in behalf of Employment Security 689 

Cases in behalf of Veterans' Division 760 



Administrative Division 

The staff of the Administrative Division participated fully in the research and 
drafting of all legal opinions which numbered thirty-two for the fiscal year. In 
addition, seventeen formal conflict of interest opinions were issued. Among the 
formal opinions of more than routine interest were those on the validity of a 
question on the placement registration form of the Department of Education 
inquiring about membership in the Communist party and other organizations; 
the responsibilities of the Alcoholic Beverage Control Commission in approving 
minimum prices when the agency lacked adequate staff to perform that 
function; the ABC's authority to defer full implementation of the new credit 



P.D. 12 7 

law; the ABC's authority to set maximum prices; the effect of the resignation of 
the Director of the Division of Youth Services; the scope of the collective 
bargaining statute as it applies to the Metropolitan District Commission; and the 
applicability of the civil service law to certain positions in the Department of 
Community Affairs. 

In addition to the formal opinions rendered, the Division was engaged 
throughout the year in rendering informal legal opinions, both written and oral, 
to all of the agencies of the Commonwealth and to various officers thereof. 
These informal opinions number in the hundreds and constitute a very 
important part of the work of this Division. Often it is possible to avert 
problems of substantial magnitude by means of advance legal advice. Members of 
the Administrative Division are encouraged to counsel freely with the various 
agencies of the Commonwealth to which they are assigned. 

With respect to the procedure adopted for issuing formal opinions, I wish to 
advise that once an opinion request is assigned to an Assistant Attorney General, 
that assistant is responsible for developing a complete set of facts on which to 
base the opinion. I decline, as a matter of policy, to honor requests unless they 
are accompanied by sufficient facts. 

The other major area of work for the staff of the Division involves the 
prosecution and defense of a broad range of civil actions in which the 
Commonwealth or an officer or agency thereof is a party. The Division 
represents all of the Boards of Registration, the Civil Service Commission, the 
Director of the Division of Civil Service, and all other agencies of the Executive 
Department of the Commonwealth with the exception of Commission Against 
Discrimination, the Division of Employment Security, the Industrial Accidents 
Division, the Labor Relations Commission, and the Department of Public 
Welfare. Many problems relating to the Departments of Mental Health and 
Public Health are handled by the Division of Health, Education and Welfare, but 
opinion requests from those Departments come directly to this Division. All of 
the exceptions noted above are represented by other Divisions within the 
Department of the Attorney General with the exception of the Labor Relations 
Commission. That Commission is permitted by statute to appear in the Courts 
through its own counsel. 

The litigation in which the Division is involved is principally in the state 
courts, with a large number of cases argued before the Full Bench of the 
Supreme Judicial Court. Important cases argued and decided during the year 
were the cases involving a DPU order exempting Boston Edison Co. from zoning 
requirements as to overhead transmission lines (order of DPU affirmed); the 
right of a woman in the uniformed branch of the Massachusetts State Police to 
be promoted (decided adversely to the Commissioner of Public Safety); several 
civil service cases, involving matters before both the Commission and the 
Director; the revocation of a doctor's registration because he performed an 
illegal abortion; the effect of the insurance "rate freeze" provisions of Chapter 
643 of the Acts of 1968; and the entitlement of a former employee of the 
Lowell Housing Authority to a pension based on his total annual salary, a 
portion of which was derived from Federal funds (decided adversely to the 
Commissioner of Community Affairs). 



8 P.D. 12 

Members of the Division appeared on many occasions in the Single Justice 
Sitting of the Supreme Judicial Court on interlocutory matters and on equity 
suits brought directly in that Court. The Single Justice has jurisdiction over 
appeals from orders of the Department of Public Utilities, and such cases are 
usually reserved and reported by the Single Justice to the Full Bench. 

The Division's activities in the Superior Court involved all aspects of equity 
jurisdiction, petitions for writs of mandamus certiorari, petitions to review 
administrative agency orders, and bills for declaratory and injunctive relief. 
Hardly a day passed when one or more of the staff of the Division was not in the 
Equity Motion Session of that Court. 

Litigation in the District Courts was confined to petitions to review decisions 
of the Civil Service Commission. Those cases are quite routine, inasmuch as they 
involve only a review of the certified record from the Civil Service Commission, 
a brief oral argument, and the submission of memoranda of law. During the 
fiscal year, not one case from the Commission heard in the District Courts was 
lost. 

In the Federal Courts, the Division actively participated in the reorganization 
proceedings of the New Haven Railroad. That litigation was before both the 
United States District Courts for the District of Connecticut and the Southern 
District of New York. On December 31, 1968, the inclusion of the New Haven 
Railroad in the merged Pennsylvania-New York Central system was completed, 
after an injunction sought in the New York court was denied. The litigation still 
continues over the question of the price to be paid for the assets of the New 
Haven. 

In the case of Lyons v. Davoren, we prevailed in both the District Court and 
the Court of Appeals, and the Supreme Court of the United States denied 
certiorari. That case involved the constitutionality of the Massachusetts statute 
governing signature requirements for independent candidates for Congress. In 
Zuber v. Allen, a case involving the validity of the Secretary of Agriculture's 
milk marketing order for the Massachusetts-Rhode Island area, we filed a brief 
amicus curiae in support of petitions for writs of certiorari, and certiorari was 
granted. 

Members of the Division serve in positions other than as legal advisers to state 
agencies. They are represented on the Tri-State Transportation Committee 
(Massachusetts, Connecticut and Rhode Island), the Northeastern Regional 
Transportation Committee, the Attorney General's legislative committee, and 
the Commission to Investigate the Medical Examiners' System. In addition, it is 
to be noted that the Division is constantly engaged in counselling various 
municipal officials on a wide variety of problems, incident to the Attorney 
General's responsibility with respect to town by-laws. 

During this transitional year, the members of the Division performed their 
work expeditiously and in a highly professional manner. The transition in staff 
was handled smoothly, and very few problems, other than a temporary backlog 
of opinion requests, were encountered. 



P.D. 12 9 

Citizen's Aid Bureau 

The Citizen's Aid Bureau functions as an information center for people across 
the Commonwealth, dealing with individual problems in an effort to solve them 
directly or to direct them to the proper agency. These complaints or requests 
range from people having problems with their landlords to asking for food 
baskets at Christmas. In addition, many people are under the misapprehension 
that the Attorney General or one of his assistants should serve as their private 
attorney. The Bureau explains to them that the Attorney General is prohibited 
from representing private individuals and refers them to their own attorney, the 
referral service of the Bar Association or to their local legal aid society. 
Frequently, people request official opinions from the Attorney General, which 
he is allowed to give only to state agencies. Whenever possible, they are 
furnished with copies of the law or sent copies of opinions already rendered on 
the subject matter involved. 

The Citizens' Aid Bureau is not a referral agency by any means - all too 
often people are shuffled through the red tape of state government and 
encounter great confusion in finding a solution to their problems. All legitimate 
requests are treated individually with every attempt made to assist the person 
and also to make him familiar with his rights. Many times an individual's 
problem will require weeks and even months of work before it is resolved. In 
some remote cases, it may even require remedial legislation. 

Since the inception of the Citizens' Aid Bureau in 1967, the Bureau has 
developed an excellent working rapport with almost all agencies in state 
government. This has enabled it to handle many of the inquiries and requests in 
the most expeditious manner possible. The Bureau has been in contact with local 
and state agencies only when they have failed to provide public services required 
by law or when a possible change in procedure appears necessary. 

One of the most useful services of the Citizens' Aid Bureau is a complete 
listing of all legal and social services available to the citizens of the 
Commonwealth. I have endeavored to work closely with these agencies in the 
hope that through mutual cooperation we will be better equipped to serve the 
needs of the people. 

Requests for information on Massachusetts government, the General Laws, 
businesses operating in the Commonwealth, and out-of-state firms, are also 
handled by this Bureau. Students, in particular, find this service most useful. 

A branch office of the Citizens' Aid Bureau has been established in 
Springfield with the hopes that other branch offices can also be opened in 
various parts of the Commonwealth. The branch office answers all questions 
immediately whenever possible. If research is necessary, the problem is 
forwarded to the main office for action. 

In addition, a 24 hour message center has been installed enabling citizens to 
call in for help at anytime. Calls are returned as soon as possible. 



10 P.D. 12 

Civil Rights 

The Division of Civil Rights and Liberties ensures that state officials, as they 
administer laws of the Commonwealth, do so in such a manner as will not 
interfere with the civil rights and civil liberties of the citizen. To this end the 
Division has worked with many departments, boards and commissions upon 
complaints of citizens who felt their civil rights or civil liberties to have been 
violated. 

Ones major responsibility of the Division is to provide legal services for the 
Massachusetts Commission Against Discrimination. It provides legal advice and 
counsel and handles all litigation for that Commission. During the past fiscal 
year, members of this Division made 162 appearances in the Courts of the 
Commonwealth on behalf of that agency. Also, it provided counsel for the 
Commissioners at 32 hearings. 

One of the most important cases before the Courts was the Local Finance Co. 
of Rockland v. Massachusetts Commission Against Discrimination which went to 
the Supreme Judicial Court. This was a case on complaint brought by the 
Massachusetts Commission Against Discrimination against the company alleging 
violation of the public accommodations statute on account of using a color 
coding system. The issues before the Supreme Judicial were 1) whether a finance 
company was a place of public accommodation and 2) whether the use of a 
coding system which designated the race or color of an applicant was 
discriminatory. The respondent appealed to the Superior Court which reported 
the case to the Supreme Judicial Court. It was a case of first impression. The 
Supreme Judicial Court found that a finance company was a place of public 
accommodation within the meaning of the public accommodations statute and 
that the color coding system was discriminatory. 

Another case currently on appeal by the Massachusetts Commission Against 
Discrimination to the Supreme Judicial Court is Massachusetts Commission 
Against Discrimination v. Franzaroli. This case is one in which the Superior 
Court on a petition for enforcement of an order by the Massachusetts 
Commission Against Discrimination in a housing case after public hearing, 
deleted the paragraphs of the order relating to damages. The Massachusetts 
Commission Against Discrimination will contend that because the statute 
contains a review proceeding for damages in the district court, the Superior 
Court is precluded from deleting such order after the statute of limitations for 
appeal has run. A 1966 amendment to the statute provided for damages in 
housing cases and proceedings for review. The case of Vitti v. Massachusetts 
Commission Against Discrimination in the Newton District Court was the first 
case involving review of an award of damages in a housing case. Although the 
Court altered the award, it sustained the Commission's right to award damages 
for mental suffering as well as actual damages. 

The case of Massachusetts Commission Against Discrimination v. Keating and 
Brady involved a reopened hearing on a housing complaint at which the 
respondent real estate broker and respondent contractor under subpoena refused 
to testify upon interrogation by the Commission. The respondents invoked the 
constitutional provision against incrimination, contended that the Commission 
had no authority to reopen the hearing and asserted that their testimony might 



P.D. 12 11 

subject them to a penalty or forfeiture in violation of the Constitution. The 
Massachusetts Commission Against Discrimination filed a petition to compel 
testimony and contended that because c. 151B contained a witness immunity 
statute, there was no privilege against self-incrimination and that a cease and 
desist order was not a penalty of forfeiture within the meaning of the statute. 
The Court ordered respondents to appear before the Commission and to testify, 
sustaining the Commission's view. 

This Division has argued and has pending several other cases involving 
enforcement of subpoenae and review of orders of discrimination in housing and 
employment. One of the pending employment cases is a review of an order 
against the Department of Mental Health. This is the first case in which an order 
of a department of the Commonwealth has come under review. 

This Division assisted the Attorney General in developing a policy to assist 
law enforcement officials in enforcing our obscenity laws in compliance with 
U.S. Supreme Court decisions. Because of the high regard for the principles of 
the First Amendment to the U.S. Constitution, the Department has set forth a 
uniform policy throughout the state which is designed to protect the citizen 
from obscene material while at the same time supporting the free exchange of 
ideas. 

During the past year, the Division drafted legislation to make unlawful racial 
restrictive covenants in real estate transactions. Such legislation was necessary 
because although Shelley v. Kraemer in 1946 ruled such covenants unenforce- 
able, it did not rule them unlawful. Many citizens of the Commonwealth had 
raised objections to the Massachusetts Commission Against Discrimination which 
had no jurisdiction in this area because such covenants were being conveyed in 
current deeds. Legislation to this effect was enacted and signed into law. In 
addition the Division drafted and supported several bills designed to increase the 
powers of the Massachusetts Commission Against Discrimination and to improve 
the administration of that agency. 

This Division is called upon to deal with numerous inquiries and complaints 
from the citizens at large. Much of the time and resources of this Division is 
given over to investigation and resolution of these matters. They often involve 
complaints concerning activities by officials of local as well as state government. 
In all cases, the members of the Division try to eliminate the grievances of these 
citizens and, also, to interpret to them their roles in being vigilant and alert to 
those practices which interfere with their rights and privileges. 



Consumer Protection 

The rapid growth of this division, noted in prior reports, continued apace as 
the public became increasingly aware of the prevalance of consumer fraud and 
the redress available to them. At the same time the business community came to 
the realization that their interests were best served by cooperation with the 
division and, as a result, voluntary solutions to consumer problems were much 
more common than court cases. 

Antitrust litigation continued to play a prominent role in the work of the 
division with the settlement of a case against several library book publishers for 



12 P.D. 12 

$200,000 as the highpoint. 

In the antibiotic drug case the defendents set up a $100 million national 
settlement fund. At this time, it would appear that Massachusetts' share should 
exceed $1 million. In addition, this office represents Massachusetts consumers as 
a class in the same action. To notify people of their right to file claims in the 
latter, newspaper advertisements, press releases, television interviews and radio 
tapes were utilized which told the consumer how to proceed. At one point 
telephone inquiries became so frequent that it was necessary to assign additional 
personnel to answer them. 

During the same period, tentative agreements were reached in the milk and 
copper piping antitrust cases, with final settlement likely in the near future. 

A number of criminal cases were successfully prosecuted by the division for 
violations of credit laws and, in the home improvement field, larceny by false 
pretense. In one case, a swimming pool company used contracts which violated 
the Retail Installment Sales Act in several respects, notably in the failure to 
disclose the percentage rate of interest and requiring the payment of $60 more 
in interest than the amount allowed by statute. The Worcester District Court 
assessed a $6,000 fine against the company for these activities. 

Curtis Publishing Company, which published the Saturday Evening Post, 
discontinued publication of the magazine and told subscribers only that they 
could receive another magazine. When the Federal Trade Commission declined 
to act, suit was brought by the division under Chapter 93A to require Curtis to 
disclose to their 62,000 Massachusetts subscribers that they had the right to a 
refund. This suit, the first in the nation, was followed by other states taking 
similar action. Subsequently, the Federal Trade Commission reversed itself and 
has now issued a complaint against Curtis. Both matters are still pending. 

An intensive investigation of a number of automobile dealers throughout the 
state revealed that some were engaging in such deceptive practices as turning 
back odometers, and selling rental vehicles without notifying the consumer. 
These practices were terminated by obtaining voluntary Assurances of Discon- 
tinuance. The same procedure was used to stop bait and switch advertising and 
model home schemes in the home improvement industry. 

A most important part of the work of this division is its handling of consumer 
complaints. During the fiscal year 2,473 written complaints were received in 
addition to an incalculable number of telephone inquiries. As a result of division 
action, over $205,000 was saved for consumers. This amount represents deposits 
returned and contracts canceled. It does not include the value of obtaining 
repairs, warranty service or contact fulfillment which the consumer had not been 
able to obtain prior to our intervention. 

Because we believe that the great majority of businessmen are honest and 
want to comply with the law, a special effort has been made in those areas where 
complaints are numerous to educate the entire industry. Accordingly meetings 
were set up with the automobile transmission repair industry, the General Home 
Improvement Contractors Association of Massachusetts, the Swimming Pool 
Association of New England, and the Retail Grocers Association, among others, 



P.D. 12 13 

for the purpose of seeking their cooperation in curbing consumer frauds and to 
notify them what our response would be to unchecked deceptive practices. At 
the same time, advertising guidelines for the automobile industry were prepared 
and distributed. 

Some significant legislation was proposed and supported during this period. A 
bill to allow credit counseling by non-profit charitable corporations was passed. 
Two important amendments to Chapter 93A are pending and favorable action is 
anticipated. One would allow the Attorney General to obtain redress for 
individual consumers, while the other provides the consumer with a private 
remedy, including a minimum recovery of $25.00, attorney's fees, a class action 
provision, and, in certain cases, treble damages. Measures which would declare 
unordered merchandise gifts, and provide a minimum of nine days in which a 
revolving credit account could be paid without the imposition of finance charges 
also are pending. 

Consumer education continued as a major preoccupation. A series of three 
seminars was presented to community workers at the Roxbury Multi-Service 
Center to provide them with knowledge of consumer problems, frauds and the 
relevant laws so that they might better serve their community. Staff members 
spoke to Lions Clubs, Rotary, Kiwanis, Retail Trade Boards, Chambers of 
Commerce, Jaycees, Area Planning Councils, Community Action Programs, 
Church groups, High Schools, Granges, Women's Clubs, newspaper editors, and 
appeared on radio and television talk shows in order to more fully inform the 
public about the redress available to them when they have been subjected to 
consumer frauds. 



Contract Division 

The work of the Contract Division includes the preparation and trial of 
highway and building construction cases before auditors, Justices of the Superior 
Court, and the Supreme Judicial Court. Members of the Division appear on 
motions and depositions incident to these cases, in addition to prosecuting 
appeals in public contract matters. All public contracts, bonds and leases are 
reviewed by the Division for correctness of legal form. Conferences with officials 
from more than 80 state agencies are frequently scheduled to deal with 
questions relative to state contracts. The Division is frequently called upon for 
legal advice by the various Departments of the Commonwealth regarding public 
contracts, bonds and leases. 

One of the most significant decisions resulting from work of the Division 
during the year was that in State Line Contractors, inc. vs. Commonwealth of 
Massachusetts, wherein the Supreme Judicial Court reduced a Superior Court 
award in favor of a highway contractor by $175,166.09 upon appeal by the 
Attorney General. The case arose out of a 1962 Department of Public Works 
Contract for the construction of a section of Interstate Route 495 including two 
bridges, one over Newton Road and another over Amesbury Road in the City of 
Haverhill. The Contractor was State Line Construction Inc., which recovered 
$225,974.45 in Superior Court. 



14 P.D. 12 

In its opinion the Supreme Judicial Court ruled that there were errors of law 
in all but two claims amounting to $30,278 in the Superior Court award. An 
additional amount of $20,030.36 had been tendered by the Commonwealth in 
Court on three other claims in the form of an "offer of judgment" and was not 
challenged by the Commonwealth. 

The Supreme Judicial Court also ruled that interest should have been 
computed from January 21, 1966, the date when the petition was filed and not 
an earlier date, in view of the provisions of the General Laws dealing with 
interest on state contracts. 

The Supreme Judicial Court also returned a favorable decision in the case of 
Marinucci Bros. & Co., Inc. v. Commonwealth, 354 Mass. 141, wherein 
Marinucci Bros. & Co. sought to recover what they said was a $19,298.30 
overpayment in restitution that it made in a case wherein it was charged with 
larceny from the Commonwealth's D.P.W. 

The Division represented the Metropolitan District Commission in the 
complex litigation involving the construction of the M.D.C. Deer Island 
Sewerage Plant. The matter was finally resolved on August 9, 1968 by a "Final 
Decree" entered by Linscott, J. of the Superior Court, terminating two and one 
half months of trial. 

In addition to its involvement in litigation, the Division has attended 
conferences with various department heads and officials, investigated factual 
backgrounds in contract disputes, and researched statute and case law, and 
proposed statutory changes. 

The Division was also responsible for the review and approval of the forms of 
all documents prepared in connection with note issues and notices of sale of 
bonds under financial assistance housing programs for the elderly and veterans of 
low income. 



Criminal Division 

The regular work of the Criminal Division continued during the last fiscal 
year without let up. Most of this work can be divided into two major categories: 
the investigation and prosecution of offenses affecting the integrity of the state 
service, and representation of the Commonwealth in proceedings brought by 
prisoners and others held in state institutions. 

The Supreme Judicial Court this year affirmed the convictions obtained in 
the case of Commonwealth v. Schnackenberg. In Commonwealth v. Ryan et al 
convictions for receiving stolen goods, to wit, data processing cards from the 
Division of Employment Security, were upheld. 

In other cases members of the Criminal Division obtained convictions in the 
Superior Court. A cigarette tax fraud case was successfully prosecuted against 
two individuals and is being appealed. Convictions were obtained in two counties 
for gaming violations. In one county, a conviction for perjury was obtained and 
is being appealed. 



P.D. 12 15 

The second so-called Small Loans Case was successfully concluded in June, 
1968, and is being appealed. 

In the second category, members of the Division have been called upon to 
handle a large volume of extraordinary writs, primarily writs of error and 
petitions for habeas corpus, in both the state and federal courts. The number of 
such writs brought on behalf of prisoners is increasing, and can be expected to 
increase further as the United State Supreme Court hands down more decisions 
extending the constitutional rights of criminal defendents. The Division also 
represents the Governor in matters involving the rendition and extradition of 
fugitives. 

Members of the public and public officials frequently come to the Division 
with complaints and information about suspected criminal activity. Complaints 
are carefully processed, and many of them are forwarded to the district 
attorneys and to state and local police for appropriate action. Complaints about 
matters within the primary jurisdiction of this Department, such as alleged 
misfeasance by state officials, are investigated by investigators assigned to the 
Department, and action is thereafter taken if warranted. The Division is in 
frequent touch with other law enforcement officials throughout the Common- 
wealth, with whom it endeavors at all times to cooperate. 

During this administration, the Criminal Division has started prosecuting 
environmental pollution cases for the Department of Natural Resources and the 
Division of Water Pollution Control. To date, twenty-four complaints have been 
brought, with eight convictions and twelve cases awaiting trial. This area of 
prosecution will continue to grow in the future. 

Within the Criminal Division is the Organized Crime Section, a specialized 
unit involved in the collection of Organized Crime intelligence information, the 
investigation of criminal offenses committed by members of the organized crime 
family, and the prosecution of those cases. During the past year, the section, 
which maintains its own files, catalogued approximately 1000 intelligence 
reports and disseminated organized crime information to approximately 42 
separate federal, state and local agencies. The section has returned indictments 
or complaints against 66 persons and one corporation and thus far has obtained 
42 convictions, with 21 cases still pending. In one noteworthy case, Common- 
wealth v. Penachio et al, investigators from the Organized Crime Section 
coordinated the investigation of $175,000 in negotiable bearer bonds from a 
Boston stockbroker with law enforcement agencies in Canada and New York. 
This investigation resulted in the recovery of $130,000 of the stolen bonds and 
the arrest of four persons in Canada and the United States. One conviction has 
been obtained and the remaining three persons are awaiting trial. The Organized 
Crime Section has been an active member of the Law Enforcement Intelligence 
Unit, an international association providing for the exchange of intelligence 
information, and is presently working in cooperation with the Department of 
Justice, Organized Crime Strike Force for New England. Throughout the past 
year, the Organized Crime Section continually attempted to cooperate with all 
law enforcement agencies and to offer guidance and the facilities to those 
agencies desiring such assistance. Furthermore, Section personnel have been 
made available on request to civic organizations and other groups for public 



16 P.D. 12 

speaking engagements as part of the Department's continuing public education 
program. 



Eminent Domain Division 

The Eminent Domain Division is concerned with litigation and problems 
arising from the taking of private property by the Commonwealth for public 
purposes as well as general real estate matters that affect the interests of the 
Commonwealth. When a property owner is not satisfied with the price offered 
by the Commonwealth, he petitions the Superior Court to assess damages under 
G.L. c. 79. In these cases, attorneys from the Division represent the 
Commonwealth in court. 

In order to assure a property owner that he will be fairly, justly and promptly 
compensated, the Division has established procedures to facilitate early trials, in 
many instances, the Commonwealth has moved for speedy trials. The savings in 
money to the citizens of the Commonwealth and the reduction in irritation and 
aggravation to the property owner is substantial. 

The following tables dramatically illustrate the case load handled and savings 
affected by this Division during the past fiscal year. 



Cases Pending 
July 1, 1968 


New Cases Cases 
Closed 


Cases Pending 
June 30, 1969 


758 


351 258 


851 


Amount of Damages 
Sought by Petitioners 
July 1, 1968 - 
June 30, 1969 


Amount of Awards by 
Decision or Settle- 
ment, July 1, 1968- 
June 30, 1969 


Savings to 
Commonwealth 


$7,990,149.00 


$5,346,230.40* 


$2,643,918.60 



*Does not include $410,816.77 paid for interest, property tax adjustments and court 
costs. 

Although 90% of the Division's work is related to G.L. c. 79 land damage 
cases, the remaining work of the Division is quite varied. In addition to G.L. c. 
130 wetlands cases, equity matters and miscellaneous litigation concerned with 
real property matters, the Division renders advice to and assists all agencies with 
real estate problems and represents the Commonwealth in all Land Court cases 
in which the Commonwealth has an interest. The Division reviews the accuracy 
and form of all title abstracts and related documents drafted by various state 
agencies covering land acquisition. 

Almost every week, special problems arise that require solution by the 
Division. Among the matters dealt with during this fiscal year were: control of 
oil spillage in Boston Harbor; control of water and air pollution; dilapidated 
piers and wrecks in Boston Harbor and the resolution of problems among the 
Department of Public Works, the Boston and Maine Railroad and the M.B.T.A. 



P.D. 12 17 

over rights to land needed for the completion of the M.B.T.A. tunnel to 
Charlestown. In almost all instances, members of the Division's staff investigate 
the problem, call conferences of interested parties, and where necessary propose 
remedial legislation. 

A member of the staff serves as the Attorney General's representative on the 
Commission on Eminent Domain which reviews proposed legislation in the field 
of eminent domain (much of which legislation is drafted by the Division as a 
part of the Attorney General's legislative program) and proposed changes in the 
law. 

Significant developments have occurred in the area of defining the seaward 
boundary of the Commonwealth of Massachusetts. Under the leadership of this 
Division, a conference of the Attorneys General of seaboard states was convened 
to discuss mutual problems regarding state jurisdiction over sea boundaries. As a 
result, legislation has been introduced in the Congress of the United States to 
give states such as Massachusetts jurisdiction over the ocean beyond the 3 mile 
limit to a 12 mile limit and then right to share in revenues derived from the 
continental shelf. In connection with this, the Commonwealth has been made a 
party in the case of United States v. Maine in which the federal government 
seeks to determine whether or not under the Federal Submerged Lands Act of 
1953 the Commonwealth can assert jurisdiction to the 3 mile limit or to a 
greater distance. This Division is participating in the briefs and arguments before 
the United States Supreme Court. 

Not only has the Division cooperated with other states as noted above, but 
there has been continued cooperation with the United States Bureau of Public 
Roads in the implementation of the Interstate Highway System and has earned 
high praise from that Bureau. 

This Division, as noted in the annual report of 1966, prepared a Manual of 
Eminent Domain Appraisal Law. Because the demand for this Manual by 
lawyers, appraisers and state agencies has been so great, the supply is now 
exhausted. In contemplation of a re-issuance of a revised Manual, staff members 
are now bringing the material in that volume up to date. 

As in the past, the Eminent Domain Division has participated in the drafting 
of formal opinions relating to land problems and has handled numerous requests 
for informal opinions and legal advise from all state agencies, some local agencies 
and the individual citizens. 



Employment Security Division 

The Employment Security Division works closely with the Massachusetts 
Division of Employment Security and makes every effort to seek enforcement of 
the Employment Security Law. In the event that there has been non-compliance 
of the Law, wherein employers become delinquent in paying the employment 
security taxes and employees file fraudulent claims to receive unemployment 
benefits, criminal prosecution is then undertaken. As a result of concentrated 
efforts approximately $158,000 has been recovered. This is in addition to the 
many cases handled by the Division as well as others handled independently in 



18 P.D. 12 

the departments of the Massachusetts Division of Employment Security. 

During the fiscal year, 689 cases were handled by this Division. Of these, 502 
cases were on hand at the outset of the year, and 1 87 new cases were thereafter 
received. Of the new cases, 132 were employer tax cases, 54 were fraudulent 
claims cases, and 1 appeal to the Supreme Judicial Court. 

Cases closed during the fiscal year totaled 187, of which 107 were employer 
tax cases and 80 were fraudulent claims cases, leaving a balance of 502 cases. 
$109,903.18 was collected from employers and $47,343.30 collected as the 
result of fraudulent claims cases, making a total recovery for the Commonwealth 
of $157,246.48. Additional steps were taken during the year to urge more 
prompt referral of cases to the Attorney General, so as to avoid expiration of the 
statute of limitations prior to the time that legal action can be commenced. 

We have prepared a case for presentation and argument in the Massachusetts 
Supreme Judicial Court in its Fall sitting. Briefly, the case involves an appeal by 
an employer from a decision of the Board of Review of the Division of 
Employment Security. An employee of 16 years was terminated due to a 
reduction in force. Subsequently, he received payment from his employer for a 
three months' period. The question was whether or not the payment constituted 
a "severance payment" or a "payment in lieu of dismissal notice." If it were a 
payment in lieu of dismissal, it would come within the definition of 
remuneration in the Employment Security Law and, therefore, he would not be 
in total unemployment and not entitled to unemployment compensation. The 
Board of Review found that the payment was a "severance payment", and did 
not constitute "remuneration" within the meaning of the Law and that, 
therefore, the employee was unemployed and entitled to unemployment 
benefits. Our position supports the decision of the Board of Review, and we will 
contend that the payment was a "severance payment" and did not disqualify the 
employee from receiving unemployment benefits. This, we will argue, is so in 
spite of the fact that the employer's administrative procedure set forth in its 
manual of procedure provides for "remuneration in lieu of notice." 

As a result of the numerous prosecutions made by this office over the course 
of years, defendants have defaulted court appearances resulting in warrants 
issuing. There are presently 109 warrants in existence on cases still open in 
Court, and 29 warrants outstanding on cases presently in the hands of the 
Probation Department, together totaling $134,252.14 in monies owed this 
Division on outstanding warrants. We are seeking closer cooperation with the 
State and Local Police for service on the outstanding warrants presently in 
existence. 

The Employment Security Division has continued its practice of communicat- 
ing with the various departments of the Government, and has had numerous 
contacts with the Massachusetts Income Tax Department since it has been our 
experience to find that the same individuals found delinquent in paying the 
State Withholding Taxes have also been delinquent in non-payment of 
Employment Security Taxes. Several communications have been made this fiscal 
year with the Department of Corporations and Taxation, resulting from 
information obtained in inquiries received, or investigations conducted by our 
Division. 



P.D. 12 19 

Division of Health, Education and Welfare 

The responsibilities of the Health, Education and Welfare Division have 
multiplied and become more complex in the past year. 

In the course of the year the Division performed its function of advising, with 
regard to legal matters, the Department of Health, Education, Welfare, Natural 
Resources and the Rate Setting Board. The problems referred to this Division are 
both varied and, in many instances, complicated. 

The Division Attorneys represent the various departments in litigation ranging 
from appearances before an administrative board up to and including arguments 
before the Supreme Judicial Court and the Supreme Court of the United States. 

The litigation falls into several categories. The first category is the 
determination of the legal status of patients confined at Bridgewater State 
Hospital. Hearings were held before an Associate Justice of the Superior Court. 
The hearings determine whether or not the patient required the strict supervision 
of Bridgewater State Hospital or if the circumstances warranted a transfer to 
some other state mental institution. Since June of 1967, when the hearings 
initially began, the number of inmates have been reduced from over 600 to 210; 
60 of which are observation patients. The hearings terminated in June of 1969. 
The Division has been called upon since then to handle individual cases. 

The second category is conducting administrative hearings before the Rate 
Setting Board hearing officer and overseeing Judicial Review when necessary. 

Air and water pollution is one of the major problems confronting the state, 
and as a result litigation is on the increase. More significant than litigation are 
my legislative efforts towards abating the cause of pollution. An advisory 
committee, consisting of people knowledgeable in this area, has been created to 
advise this Division and implement methods to solve the paramount problems 
that exist in restoring an ecological balance. 

The remainder of litigation is extensive and concerned with the rules, 
regulations and statutes governing the departments serviced by this division. 
Numerous cases are pending before the state and federal courts at the trial and 
appellate level. 

On May 16, a six level attack on drug abuse in the Commonwealth was 
initiated. The full weight of the Division of Health, Education and Welfare was 
placed behind new efforts in law enforcement coordination, specialized police 
training, education for the young, parental orientation, community involvement, 
and comprehensive treatment and rehabilitation. 

A product of these efforts, legislation now pending before the General Court, 
the Comprehensive Drug Rehabilitation Act (H. 5629), passage of which seems 
assured, will provide Massachusetts with a modern, innovative approach to drug 
rehabitation and drug law enforcement. In particular, the Attorney General will 
conduct a law enforcement training program, instructing municipal, metropol- 
itan and state police officials in practice and procedures relating to the 
Commonwealth's narcotic and harmful drug laws. Training will center upon the 
relevant criminal laws, methods of drug detection and identification, law 



20 P.D. 12 

enforcement techniques, the physiological and sociological causes and effects of 
drug abuse, opportunities for treatment and rehabilitation, and available 
educational programs. The Attorney General may call upon the Commissioner of 
Public Safety to assign to him up to six uniformed state police for assistance in 
carrying out this law enforcement training program. 



Industrial Accidents Division 

The Industrial Accidents Division serves as legal counsel to the Common- 
wealth in all workmen's compensation cases involving state employees. Under 
G.I. c. 152, § 69A, the Attorney General must approve all payments of 
compensation benefits and disbursements for related medical and hospital 
expenses in compensable cases. In contested cases this division represents the 
Commonwealth before the Industrial Accident Board and in appellate matters 
before the Superior Court and the Supreme Judicial Court. 

During this fiscal year the Supreme Judicial Court rendered a decision in 
Klapacs' Case which involved a claim against the Commonwealth under the 
Workmen's Compensation Act for nursing services furnished by the wife of an 
injured employee. 

During the past fiscal year a total of 6916 accident reports were filed on state 
employees industrial accidents, an increase of 320 over the prior fiscal year. Of 
the lost-time disability cases, this division approved 1217 new claims, an increase 
of 89 over the prior period. It also approved 75 resumption of compensation 
agreements. 

The Division appeared for the Commonwealth on 463 assignments at the 
Industrial Accident Board and in the courts on appellate procedures. Its staff 
members also participated in an indeterminate number of informal appearances 
at the Board including those required in the regular review of new claims for 
evaluation and approval by the Attorney General. 

Total disbursements by the Commonwealth on state employees' industrial 
accident claims, including accepted cases, Board and court decisions and lump 
sum settlements, for the period July 1, 1968 to June 30, 1969 were as follows: 

Industrial Accident Board (General Appropriation)* 

Incapacity compensation $1,354,995.53 

Hospital costs, drugs et al 254,993. 1 1 

Doctors, nurses et al 209,981.58 

$1,819,970.22 

Metropolitan District Commission** 

Incapacity compensation $109,912.99 

Medical and Hospital costs 52,241.45 

$162,154.44 



P.D. 12 21 

Total Disbursements 

Incapacity compensation $1,464,908.52 

Medical and Hospital costs 517,216.45 

$1,982,124.97 

* Appropriated to the Division of Industrial Accidents 

** From funds appropriated to the M.D.C. for payment of claims involving M.D.C. 

employees. 

Although there was an increase of 89 approvals of new agreements over the 
prior fiscal period, the cost to the Commonwealth for incapacity compensation 
was $28,912.19 less in the last fiscal year than fiscal year 1968. The hospital and 
medical costs did show an increase of $34,378.76 over the 1968 fiscal year, due 
largely to the sharp increase in hospital per diem rates. 

In its capacity as custodian of the second-injury funds under §65 (General 
Fund) and §65N (Veterans Fund) of Chapter 152, the division represents the 
Commonwealth before the Board in petitions filed by insurers and self-insurers 
for reimbursements out of these funds. It is also necessary for staff members to 
confer with insurers' representatives to negotiate payments into the funds in 
those fatal industrial accident cases where the issue of liability has been in 
question or compromised. 

At the close of the fiscal year the General Fund (§65) showed an 
unencumbered balance of $1 16,708.41 with payments totalling $25,938.84 and 
receipts of $7,450.00. 

The Veterans Fund (§65N) with receipts of $87,372.00 and payments of 
$85,774.96 held a total balance of $271,215.72 at the close of the fiscal period. 



Public Charities Division 

This Division protects the public interest where charities are involved in 
accounts of trustees, executors and other fiduciaries, petitions for probate of 
wills, appointment of executors and trustees, licenses to sell real estate, and 
receives and files the annual financial reports required by General Laws, chapter 
12, §8F, from public charities. 

The number of cases involving court proceedings, other than such formal 
proceedings as the allowance of accounts, etc., totalled 213 for the year. 
Although the largest number of these cases required only the preparation and 
filing of appropriate responsive pleadings, and the review and approval of the 
decrees to be entered, many also required actual court appearances, including 
oral argument and printed briefs in cases before the Supreme Judicial Court. 

The following is a listing of the various matters involving formal action after 
review: 



22 P.D. 12 



Quarter 
Trustees accounts 


1 
603 


2 
567 


3 
503 


4 

598 


Total 
for yr. 
2271 


Total 
prev. yr. 
2382 


Wills 


182 


171 


234 


197 


784 


693 


Executors accts. 


93 


119 


122 


110 


444 


577 


Misc. Pet. for Lie. 
to sell, etc. 


22 


96 


59 


80 


257 


202 


P. A. matters 


109 


59 


139 


78 


385 


709* 


Annual Fin. Reports 
u/G.L., ch. 12.S.8F 


1152 


676 


604 


2552 


4984 


3883 


Certif. of Registration 
u/G.L., ch.68,s.20 


23 


56 


183 


51 


313 


272 



* In the previous period a program of reviewing and closing out all old public administration 
cases had been conducted. 

The total amount collected in the year as escheats in estates in which the 
deceased left no known heirs was $160,901.21. The total for the previous year 
was $260,180.77. 

As in previous years amounts were paid into the State Treasury from estates 
where although the deceased left a will, the will did not dispose of all the estate 
and there were no known heirs. 

In the cases of Stackpole v. Brewster Free Academy, 1969 Adv. Sheets 757, 
and Old Colony Trust Co., v. Board of Governors of the Belleville General 
Hospital, 1969 Adv. Sheets 761, printed briefs were filed with, and argued 
before, the Supreme Judicial Court. The decisions of the Court in the cases 
favored the positions taken in the briefs. 

In the $3,500,000 estate of Joseph Furst, appeals were taken from decrees as 
to counsel and trustees' fees. Later, compromises were effected under which the 
counsel fees were cut by about one-third and the trustees' fees by about 
one-sixth. 

Several matters involved cy-pres applications of funds for religious purposes, 
as follows: — changes in the use of funds held for the Crane Theological School 
at Tufts University because of the discontinuance of that School; approval of 
change in the payment of income of a trust under the will of John Weaver, 
(Hampden Co.) for Bexley Hall at Kenyon College, in Ohio, the Hall being 
transferred to Rochester, New York; approval of the use in other ways of funds 
held by the Unitarian-Universalists and the United Church Board for charitable 
work in what is now Red China. 

A number of cases involved changes in the method of administration of trusts 
of real estate. Two involved museum studios of the eminent sculptors Daniel 
Chester French and Gaston La Chaise. Others, the approval of the transfer of the 
historic Frary-Barnard House, in Deerfield to the Heritage Foundation; the 
transfer to the Captain Robert Bennett Forbes House, Inc., of the Lincoln Cabin 
in Milton, (devised by Mary Bowditch Forbes) and the transfer of land on 
Clark's Island in Plymouth Harbor devised by Sarah W. Taylor to the Pilgrim 
Foundation to the Duxbury Rural and Historical Society. 



P.D. 12 23 

The sale for $1,000,000 at public auction, of the building owned by the 
George Robert White Fund at 478-488 Boylston Street, Boston was approved. 
Also the saleof the Crabtree Building on Washington Street by the Lotta 
Crabtree Trustees, after newspaper solicitation of offers, for $500,000 to the 
highest bidder. The sale for $475,000 of a large parcel of land in Falmouth to 
the Woods Hole Oceanographic Institute owned by the Edward Nicholl Fenno 
estate was also approved. 

Appearances were filed in two administration cases in which it was 
questioned whether the deceased had left any next of kin and whether the 
person claiming to be heirs were such. 

In the Agnes Hawkins estate, proceedings to probate an office copy of a lost 
executed will benefitting charities were supported. 

In the George W. Davenport estate in Greenfield, extended hearings were held 
and a brief was submitted and argued. The case involves an attack by the 
residuary legatees of the testator on a trust under the will for a Home for the 
Aged. 

In the Meriva L. Capen estate, a $270,000 fund held by the Pioneer Valley 
Baptist Association for an old folks home was transferred to the New England 
Deaconees Association, which is to build a home in Northampton. 

A petition for the sale of Morville House operated by the Episcopal City 
Mission and, the use of the proceeds for erecting housing for the elderly on land 
off Massachusetts Avenue to be allotted to the Mission by the Boston 
Redevelopment Authority, was approved. 

The use of $600,000 of the $2,000,000 principal of the William Lowell 
Putnam Prize Fund, to support a mathematics competition at Harvard to endow 
a professorship of Mathematics there, was approved. The Fund set up in 1937, 
by Elizabeth Lowell Putnam, as a memorial to her husband in the original 
amount of $75,000 has increased to the amount above stated. 

Among the compromises of will contests approved was that in the estate of 
Henry Penn ("Penn the Florist") who left most of his estate to charity. 

At various times in the year discussions were had to induce the trustees under 
the will of Lotta Crabtree to use the income of the Agricultural Fund, as prior 
trustees had, for scholarships at the University of Massachusetts. 

An appeal was taken from the decree of the Norfolk Probate Court holding 
that the Board of Managers of the Woodward School for Girls in Quincy could 
not admit girls who had not been born in Quincy to the School. The largest part 
of the funds to maintain the School are supplied by the City. The Woodward 
Funds pay only a part of the cost of the Quincy born girls attending the School. 
Under those circumstances it would seem that there could be no objection to 
admitting girls not born in Quincy, who are to pay tuition. Dartmouth College 
which has a contingent interest takes a contrary position. 

Several cases in the period involved interesting questions as to law applicable 
to wills. The application of rules as to the ademption of bequests was involved in 
one case. In another, the implication of a provision for cross-remainders between 



24 P.D. 12 

life income beneficiaries of a trust was involved. In a third, the will made a 
relative the principal beneficiary in the event she survived the testatrix and 
provided that in the event of the simultaneous deaths of the testators and the 
principal beneficiary the estate should go to charity. The principal beneficiary 
predeceased the testatrix. It was held that the gift to charity took effect. 

The Eleonora Sears estate involved questions as to the domicil of the 
deceased and as to whether undue influence was exercised by the principal 
beneficiary under a later will. Earlier wills largely benefitted Massachusetts 
hospitals, later provisions eliminated those benefits. 

We cooperated with the Governor's office in drafting legislation to return the 
Endicott House to the town of Dedham. 

A large number of Public Administration matters were dealt with. As has 
been the trend in previous years, rather large amounts were escheated. The 
decedents, under present economic conditions, very often leave rather estates. 

In the Blackett case a petition to revoke a decree ordering distribution to a 
large number of cousins was allowed, there being grounds for the belief that the 
deceased was survived by his father and the claimants not being able to prove 
that the father is dead. 



The Torts, Claims, and Collections Division 

The Torts, Claims, and Collections Division represents the Commonwealth, its 
officers and employees, in tort actions arising in the performance of their official 
duties. It also represents the Commonwealth and the Metropolitan District 
Commission in claims brought for injury and damage resulting from defects in 
state highways and MDC roads. 

There are an increasing number of actions brought in the Federal Court under 
U.C.A. Title 42 §1983. These cases, which are commonly referred to as Civil 
Rights cases, are usually brought against state officials who act in judicial and 
law enforcement capacities, though any state official can be sued under this 
statute. They have been defended by the Division. 

The Attorney General is represented on the Motor Vehicle Appeal Board by 
the attorneys of the Torts, Claims, and Collections Division. 

After investigating all cases, the Division decides whether the claimant should 
be compensated. Where it is found that compensation should be made, payment 
is authorized either in settlement of a claim, or in satisfaction of judgments, 
from a fund of $108,000, appropriated by the General Court. Chapter 12 now 
provides for maximum payments of $25,000 per person for personal injury and 
$5,000 for property damage. The same annual appropriation has been made and 
no supplemental appropriation have been sought since these increases in liability 
limits have gone into effect. During the past year there were 401 motor tort 
claims processed by the Division for amounts totaling $108,000. 

Fourteen road defect cases were disposed of in the past year with an average 
cost of $95.00 per claim. 



P.D. 12 25 

Damages occurring in circumstances which impose a moral, though not a 
legal, responsibility upon the Commonwealth are also dealt with by the Torts, 
Claims, and Collections Division. There have been several special statutes 
requiring compensation to be paid for damage from sewarage, or water pipe 
breaks under Metropolitan District Commission jurisdiction which have been 
made subject to approval by the Attorney General. This responsibility has been 
assigned from time to time to the Division. 

The Collections Section of the Division represents the Commonwealth in 
claims for damage to state property and for recovery of monies due on account 
of care of patients in state institutions, as well as amounts owing to various other 
state agencies. The following is a summary of cases involved in this phase of the 
Division's work: 

Departments 

Mental Health 

Public Health 

Public Health (Tort) 

Mental Health (Tort) 

Public Works 

MDC 

P.H. Div. of Administration 

Education 

State Colleges 

Public Safety 

Corporations & Taxations 

Commission of the Blind 

Treasury 

Adjutant General 

Civil Defense Agency 

Natural Resources 

Office of the Secretary 

Div. of Waterways 

Milk Control Commission 

Board of Retirement 

Soldiers Homes 

Agriculture 

Aeronautics Commission 

Registry of Motor Vehicles 

Fisheries & Games 



Veteran's Division 

The Veteran's Division is available at all times to assist veterans and their 
families in identifying and securing the many special services — local, state and 
federal - available to them. 

The Division has continued to receive, in this regard, the cooperation of all 
public agencies which are involved in Veteran's affairs. 



Amt. Collected 


§of Claims Processed 


$112,353.49 


79 


95,833.16 


396 


1.00 


1 


300.32 


3 


42,664.48 


332 


17,425.86 


80 


2.00 


1 


3,275.80 


62 


6,363.41 


94 


4,332.52 


9 


20,107.65 


21 


5.50 


1 


329.61 


5 


192.16 


2 


167.48 


2 


347.07 


2 


281.00 


9 


20,500.00 


1 


678.75 


2 


10.00 


1 


45.00 


4 


177.75 


4 


61.50 


1 


1,318.61 


1 


215.25 


1 


$326,989.37 


1,114 



26 P.D. 12 

Number 1. July 22, 1968 

HONORABLE EDWARD J. RIBBS 

Commissioner of Public Works 

100 Nashua Street 

Boston, Massachusetts 021 14 

Dear Commissioner Ribbs: 

You have requested my opinion on the proper interpretation of the second 
paragraph of G.L. c. 79, §3, which provides: 

"If the person in possession of property which has been taken in 
fee, or in which an easement has been taken, by eminent domain 
under this chapter refuses to permit the body politic or corporate by 
which the taking was made to enter thereon and take possession 
thereof or to exercise its rights under the taking after thirty days' 
notice in writing sent to him by registered mail or posted upon the 
property so taken or in which an easement has been so taken, the 
board of officers having the direction and control of the public 
improvement in connection with which the taking was made may 
issue its warrant to the sheriff of the county in which the property is 
situated or to his deputy directing him to make entry on the 
property so taken and to take possession thereof or of the easement 
therein which has been taken, on behalf of said body politic or 
corporate, and such sheriff or his deputy shall forthwith execute said 
warrant using such force as he may deem necessary for the purpose." 
(Emphasis supplied.) 

Your letter states: 

"There is presently under construction in the City of Gardner, 
work on a section of Route 68, a Federal Aid Secondary Highway 
pursuant to a layout and decree of the County Commissioners of the 
County of Worcester and under General Laws, Chapter 82, Sections 
1-16 and the Federal Aid Highway Act of 1956. 

"The work was ordered upon petition of the Mayor of Gardner 
and others which was filed with the Board of County Commissioners 
on February 3, 1967. Part of the decree by the Worcester County 
Commissioners laying out Route 68 Relocation provided that the 
City of Gardner pay certain awards made for takings and provided as 
follows: 

And the City of Gardner is hereby ordered to build and 
make specific repairs to said highway in accordance with the 
standard specifications of the Massachusetts Department of 
Public Works, and under the direction of the Engineer [sic] of 
said Department.' 

"The contract, awarded by the County to McDonald and 
Donovan, Inc., was executed by the State Department of Public 
Works on March 15, 1968. This contract, in standard form, provided 
that the work was to be done in accordance with certain 
specifications adopted and on file with the Department and 
consideration for the work to be paid by the Commonwealth as set 
out in an accompanying proposal. 



P.D. 12 27 

"The work has been delayed by the refusal of an occupant to 
vacate a two-story wooden structure located on land within the 
layout and taken in connection therewith." 

It is my understanding that the portion of Route 68 involved is a county 
highway, rather than a state highway or town way, that title to the highway 
easements taken by the decree of the County Commissioners still lies in the 
County of Worcester, and that neither the Commonwealth nor the City of 
Gardner ever acquired any proprietary interest therein. 

The documents accompanying your letter indicate that the construction 
contract was awarded by your Department (and not by the County 
Commissioners, as stated in your letter), and that neither the County nor the 
City is a party thereto. I have been advised by members of your staff that your 
Department undertook this project pursuant to St. 1965, c. 679, §1, and St. 
1967, c. 616, § 1, authorizing it to expend funds 'Tor projects for the laying out, 
construction, reconstruction, resurfacing, relocation or improvement of 
highways . . . and for construction of needed improvements on other through 
routes not designated as state highways and without acceptance by the 
commonwealth of responsibility for maintenance . . ." The background materials 
furnished by you suggest that your Department did so in order to facilitate 
federal reimbursement for a share of the construction costs. 

Your letter continues: 

"Counsel for the Worcester County Commissioners has stated 
that the remedy in this situation is for the City of Gardner to send 
or post notice and if, at the end of thirty days, the building is not 
vacated, to issue its warrant to the sheriff directing him to take the 
property in the name of the County. 

"The City Solicitor for the City of Gardner, however, disagrees 
and avers that the said City has no authority to issue the necessary 
warrant. He recommends that the Department of Public Works for 
the Commonwealth be looked upon to issue the warrant as being the 
Board of Officers having 'direction and control of the public 
improvement' here involved. 

"Interpretation of the words 'board of officers having the 
direction and control of the public improvement in connection with 
which the taking was made' would appear to be at issue. Although 
the contract for work was executed by the Department, the layout 
was made by the County Commissioners with technical assistance by 
State Engineers upon the petition of the City of Gardner. It appears 
that the taking authority in this case is the County of Worcester 
although the City is required to pay the land damage costs for the 
right of way. 

"In view of the differences in opinion as to which agency, 
political subdivision or Board is authorized to issue its warrant to the 
sheriff for eviction, the following questions are respectfully 
submitted: 

"( 1 ) Under the provisions of General Laws, Chapter 79, Section 
3, is the City of Gardner, the Board of Commissioners for the 
County of Worcester, or the State Department of Public Works the 
proper authority to issue a warrant to the sheriff to proceed with 
eviction in this case? 



28 P.D. 12 

"(2) Does the written notice of taking have to be sent or posted 
by the same authority that issues the warrant to the sheriff to make 
entry and take possession? 

"(3) Under General Laws, Chapter 79, Section 3, which authority 
in this case should send or post the required written notice? 

"(4) Can possession be taken under said statute by the sheriff in 
behalf of a county on a warrant issued by the Department?" 

It should be noted at the outset that there is a fundamental distinction 
between a "body politic or corporate" and a "board of officers," as those terms 
are used in G.L. c. 79, §3. The former term refers to the legal entity on behalf 
of which land is taken or other official acts performed, such as the 
Commonwealth, its political subdivisions and certain private corporations. In the 
present context three "bodies politic or corporate" are involved: the 
Commonwealth, the County of Worcester and the City of Gardner. 

A "board of officers," on the other hand, is a group of individuals — such as 
your Public Works Commission and the Worcester County Commissioners - em- 
ployed by a "body politic or corporate" to act on its behalf. The first paragraph 
of G.L. c. 79, §3 imposes certain duties on "the board of officers by whom an 
order of taking has been adopted" while the second paragraph (quoted above) 
deals with the responsibilities of "the board of officers having the direction and 
control of the public improvement in connection with which the taking was 
made . . . ." In many instances the same "board of officers" falls into both 
categories, as where your Department takes land on behalf of the 
Commonwealth for a state highway and supervises all aspects of the layout, 
engineering and construction thereof. In other cases two different "boards of 
officers" may be involved, as where the Commonwealth acts through its 
Department of Mental Health in acquiring land for a state hospital and through 
its Bureau of Building Construction in erecting the buildings thereon. The 
possibility of a single project involving "boards of officers" of two different 
"bodies politic or corporate" for purposes of G.L. c. 79, §3, is, of course, 
implicit in your questions. 

It is clear that the phrase "the body politic or corporate by which the taking 
was made" in the above-quoted paragraph of G.L. c. 79, §3 refers in this 
instance to the County of Worcester. It is equally clear that whoever has the 
duty under that section to notify the former owner and issue a warrant to the 
sheriff, that warrant must direct the sheriff or his deputy to take possession of 
the subject land "on behalf of" the County of Worcester. The answers to your 
questions, however, also depend on the identity of "the board of officers having 
the direction and control of the public improvement in connection with which 
the taking was made" - which is far less clear. 

The latter issue is raised squarely by Question (1) in your letter. In answer to 
that Question, I am of the opinion that the "board of officers" having such 
"direction and control" is the Worcester County Commissioners, and hence, that 
they are the proper authority to issue the necessary warrant. 

As you point out in your letter, this project was undertaken pursuant to G.L. 
c. 82, §§1-16. Section 1 confers jurisdiction upon county commissioners to 
"lay out, alter, relocate and discontinue highways and order specific repairs 
thereon...." Under §8, the commissioners are required to "determine and 
specify the manner in which a new highway shall be laid out or an existing one 
altered, relocated or specifically repaired, and [to] specify in sufficient detail 



P.D. 12 29 

the work required so that the same may be completed in accordance with the 
commissioners' directions, and the time within which it shall be completed, and 
each town shall perform the work so required within its limits unless other 
provision is made." The same section provides that "the commissioners or their 
agents shall examine the work as often as may be necessary during its progress to 
ascertain that it is well done according to the direction of the commissioners, 
and, in case the town does not perform the work to the acceptance of said 
commissioners, the provisions of sections fourteen and fifteen [authorizing the 
commissioners to impose certain sanctions against delinquent towns] shall 
apply." Section 8 also authorizes the commissioners to "apportion the expense 
thereof upon the county and towns, respectively, or [to] agree with the towns 
in which the highway is located or with the department of public works, or 
both, as to the apportionment of such expense to be paid by the towns, county 
or state, respectively." 

Under these procedures, which the record indicates were followed in the 
instant case, I think there is little doubt that the Worcester County 
Commissioners are "the board of officers having the direction and control of the 
public improvement . . . ." The Mayor of Gardner, in petitioning the County 
Commissioners for the project, was nothing more than an applicant; under G.L. 
c. 82, § §2 and 1 1, a group of private citizens could have played the same role. 
The fact that the City was ordered by the County Commissioners to pay the 
land damages arising from the takings and "to build and make specific repairs to 
said highway" still leaves the City in a subordinate position. While your 
Department has been intimately involved in the preparation and execution of 
the project, I think it has participated essentially in the capacity of advisor to 
and contracting agency for the County Commissioners. The assumption by your 
Department of immediate responsibility for the details of construction does not 
alter the fact that the County Commissioners have exercised ultimate "direction 
and control" over the project as a whole: its nature and location, and indeed, its 
very existence. It is by virtue of the Commissioners' decree, rather than any 
unilateral action of your Department, that the highway was ordered to be 
constructed "in accordance with the standard specifications of the Massachusetts 
Department of Public Works, and under the direction of the Engineer of said 
Department." Whether or not your Department could lawfully have undertaken 
the project without the approval of the County Commissioners, the fact remains 
that it did not follow this course. 

It is therefore my opinion, on the basis of the facts before me in this case, 
that the Worcester County Commissioners are the proper authority to issue a 
warrant to the sheriff under G.L. c. 79, §3. 

Turning to Question (2), I am of the opinion that the notice required by G.L. 
c. 79, §3 must be sent or posted by the same agency that issues the warrant 
thereunder. This, I believe, is the clear implication of the statutory language 
imposing the notice requirement. 

On the basis of my answer to Question (2), I answer Question (3) by advising 
you that the required notice under G.L. c. 79, §3 should be sent or posted by 
the Worcester County Commissioners. 

As to Question (4), I do not think that G.L. c. 79, §3, standing alone, would 
permit the sheriff to take possession of this property on the basis of a warrant 
issued by your Department. This conclusion is, I believe, dictated by my answer 
to Question (1). 



30 P.D. 12 

I do not, however, intend to foreclose the possibility of your Department's 
taking independent action at some future time pursuant to G.L. c. 81, §30, 
authorizing it to ''make all contracts and agreements and do all other things 
necessary to co-operate with the United States in the construction and 
maintenance of [federally-aided] highways . . . ." (Emphasis supplied.) Assum- 
ing without deciding that §30 is broad enough to authorize your Department to 
issue a warrant on behalf of the County Commissioners, it could do so only if 
this were "necessary to co-operate with the United States . . . ." In the absence 
of factual details showing that such action by your Department (rather than by 
the County Commissioners) is "necessary," G.L. c. 81, §30 has no application. 
See Boston, Worcester & N.Y. Street Ry. v. Commonwealth, 301 Mass. 283, 
288. 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttorney General 



Number 2. August 1, 1968 

HONORABLE OWEN J. KIERNAN 

Commissioner of Education 
182 Tremont Street 
Boston, Massachusetts 021 1 1 

Dear Dr. Kiernan: 

Acting in your behalf, Deputy Commissioner Thomas J. Curtin has asked for 
my opinion concerning the "constitutionality" of Question No. 3 in the 
Placement Registration Form of your Department's Bureau of Teacher 
Certification and Placement ("the Bureau"), reading as follows: 

"Are you now or have you ever been a member of the 
Communist Party or any other organization, the purpose of which is 
or was the over throw [sic] of the government of the United States 
by force [?] " 

I understand that the placement services of your Department are distinct 
from its certification functions. The latter are undertaken pursuant to G.L. c. 
71, §38G, which conditions the appointment of a teacher in a public school on 
the issuance of a certificate of qualification by the Board of Education. 
Placement services, on the other hand, are provided for under G.L. c. 69, §6, 
which reads as follows: 

"The department shall receive applications for the position of 
teacher from graduates of good moral character of any high school 
or teachers college in this commonwealth, or of any other school 
deemed by the department to be of equal grade, or of any reputable 
college. Such an application shall contain the applicant's name and 
address, and, briefly, his experience and qualifications. The 
department, without charge, shall communicate with the various 
school committees and with the applicants themselves with a view to 
securing such positions." 

I understand that when a superintendent of schools requests the Board to 
furnish him with the names of teachers for possible employment, the Bureau 
customarily gives the superintendent copies of the Placement Forms of the 
teachers who are referred. The teachers and the superintendent then deal 



P.D. 12 31 

directly with each other. There is no requirement, however, that the Bureau's 
placement service must be used either by a superintendent or by a teacher who 
desires employment in a public school. Thus, the employment of a teacher does 
not necessarily depend on his completion of the Placement Form. Yet if the 
teacher seeks to avail himself of the placement services of the Bureau, the Form 
must be filled out. 

Nothing in G.L. c. 69, §6, which confines the application to the "applicant's 
name and address, and, briefly, his experience and qualifications," authorizes an 
inquiry into a teacher's political opinions or affiliations. This restriction could 
itself render Question No. 3 invalid as an impermissibly broad inquiry into a 
teacher's qualifications. (See the cases cited below.) 

Invalidity could also result from the operation of G.L. c. 71, § 39, which 
reads as follows: 

"No public school committee or official shall inquire concerning, 
or require or solicit from an applicant for a position in the public 
schools any information as to, his religious belief, creed or practice, 
or his political opinions or affiliations; and no appointment to such a 
position shall be in any manner affected thereby. Violation of this 
section shall be punished by a fine of not more than fifty dollars." 

Since the foregoing section would prohibit a public school official from 
inquiring into the political opinions or affiliations of an applicant, the official 
should not be allowed by means of the Placement Form to obtain indirectly 
from your Bureau the kind of information that he could not obtain directly. 
Any other conclusion would raise serious doubts as to the constitutionality of 
Question No. 3. See Keyishian v. Board of Regents of University of State of 
N.Y., 385 U.S. 589; United States v. Robel, 389 U.S. 258; Schneider v. Smith, 
390 U.S. 17. And it is fundamental that statutes should be construed to avoid 
constitutional doubts. Opinion of the Justices, 341 Mass. 760, 785; Rohrer, 
petitioner, Mass. Adv. Sh. (1967) 1445, 1448. 

In short, then, without reaching questions of constitutionality, I conclude 
that Question No. 3 is invalid under the Massachusetts statutes set forth above. 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttornev General 



Number 3. August 1, 1968 

HONORABLE HOWARD WHITMORE, Jr., COMMISSIONER 

Metropolitan District Commission 

20 Somerset Street 

Boston, Massachusetts 02108 

Dear Commissioner Whitmore: 

You have requested my opinion on the effect of St. 1966, c. 685, §3, on 
certain powers of the Metropolitan District Commission. The 1966 Act inserted 
§ § 26-50 (referred to in § 50 as the Massachusetts Clean Waters Act) in c. 21 of 
the General Laws, whereby a program of water pollution control for the 
Commonwealth was established, and the Division of Water Pollution Control 
created to administer this program. Section 3 of the 1966 Act provides: 



32 P.D. 12 

"Wherever in any general or special law reference is made to the 
authority to administer water pollution abatement or control laws, 
such authority shall ... be vested in the division of water pollution 
control 

The specific questions as to which you have requested my opinion are as 
follows: 

"1 . Are the rules and regulations for the government and use of the 
waters of the Charles River Basin, particularly Rule 9, adopted 
in 1935, which reads as follows - 'No person shall throw or 
dump any papers, garbage or other refuse into the waters of 
the Basin nor allow any form of pollution to empty or drain 
into said waters,' still valid and in full force and effect? 

"2. Does the Metropolitan District Commission have the authority 
and power to enforce and prosecute violations of water 
pollution [laws relating to] the Charles River and other rivers 
within its jurisdiction and control? 

"3. Does the Metropolitan District Commission have the authority 
and power to enforce rules and laws pertaining to the 
prohibition of disposing of garbage, refuse, bottles, cans or 
rubbish in coastal or inland waters within the care and control 
of the Commission? 

"4. Have Sections 39 and 76 of Chapter 92 of the General Laws 
been repealed by the passage of Massachusetts Clean Waters 
Act of 1966?" 

For convenience I begin with Question 4. General Laws c. 92, § § 39 and 76, 
referred to in Question 4, provide: 

"§ 39. The [metropolitan district] commission may make rules 
and regulations prohibiting the pollution of the Charles River within 
the metropolitan parks district. Any person violating any rule or 
regulation made hereunder shall be punished by fine not exceeding 
one thousand dollars." 

"§ 76. The [metropolitan district] commission may order the 
removal of all sewage and other polluting matter or factory waste as 
a common nuisance from the Charles River and its tributaries below 
Waltham and from the Charles River basin; and no sewer, drain or 
overflow or other outlet for factory or house drainage or for any 
other drainage shall hereafter be connected with said basin or the 
river below Waltham without the approval of the commission." 

To the extent that the foregoing statutes confer powers on the Metropolitan 
District Commission ("MDC"), I regard them as relating to its "authority to 
administer water pollution abatement or control laws" within the meaning of St. 
1966, c. 685, § 3, quoted at the end of the first paragraph of this opinion. To 
administer is "to direct or superintend the execution, use or conduct of . . . ." 
Webster's Third New International Dictionary (1964), p. 27. It is a word 
"susceptible of a very broad interpretation" (Costonis v. Medford Housing 
Authority, 343 Mass. 108, 114) - broad enough, in my opinion, to cover the 
sort of rule-making, removal and approval powers conferred by G.L. c. 92, §§ 
39 and 76. 



P.D. 12 33 

It is clear, I think, that G.L. c. 92, § 39 is, in its entirety, a statute relating to 
"water pollution abatement or control" as that term is used in St. 1966, c. 685, 
§ 3, since the whole purpose of the rules and regulations authorized thereunder 
is that of "prohibiting the pollution of the Charles River . ..." I am likewise of 
the opinion that §76 is aimed exclusively at the pollution problem. The removal 
of "sewage and other polluting matter or factory waste" contemplated by the 
first clause of § 76 seems on its face to have been intended as a "water pollution 
abatement or control" measure. Read in the context of the first clause, the 
approval requirement in the second clause of § 76 appears to be designed to 
protect the Charles River against the introduction of pollutants. It differs from 
the requirement that the MDC obtain approval from the Department of Public 
Health under St. 1951, c. 645, § 2, and similar statutes, in that the latter type of 
approval necessarily involves broad considerations of public health which go 
beyond the control of water pollution. See Op. Atty. Gen. No. 66-67/83. Under 
the Massachusetts Clean Waters Act, moreover, an approval power comparable in 
scope to the one in G.L. c. 92, § 76 has been expressly conferrred upon the 
Division of Water Pollution Control with respect to all waters of the 
Commonwealth by G.L. c. 21, § 43: 

"No person shall make or permit a new outlet for the discharge of 
sewage or industrial waste or wastes, or the effluent therefrom, into 
any of the waters of the commonwealth nor shall he construct or 
operate a new disposal system for the discharge of sewage or 
industrial or other wastes or the effluent therefrom into the waters 
of the commonwealth without first obtaining a permit, which the 
director is hereby authorized to issue subject to such conditions as 
he may deem necessary to insure compliance with the standards 
established for the waters affected." 

The inclusion of the foregoing provision in St. 1966, c. 685 lends further 
support to the conclusion that the Legislature intended by § 3 thereof to divest 
other agencies, such as the MDC, of like approval powers. 

It is therefore my opinion that the enactment of St. 1966, c. 685, § 3 has 
relieved the MDC of all powers exercisable under G.L. c. 92, § § 39 and 76. It 
would be inaccurate, however, to say that §§39 and 76 have thereby been 
"repealed." Rather, the effect of the 1966 Act was to transfer the MDC's powers 
thereunder to the Division of Water Pollution Control. 

Turning to Question 1, I note from a subsequent letter sent by you to the 
Chief of our Administrative Division that the rules and regulations to which you 
refer were adopted not under § 39 of G.L. c. 92, but under § 38 thereof. The 
latter section authorizes the MDC to "make reasonable rules and regulations, not 
impairing freight traffic, for the care, maintenance, protection and policing of 
the Charles River basin" and imposes "a fine not exceeding fifty dollars" for 
each violation of such rules and regulations. Thus, the statute under which the 
MDC acted contains no express reference "to the authority to administer water 
pollution abatement or control laws" within the meaning of St. 1966, c. 685, § 
3. 

I am of the opinion, however, that any rule or regulation adopted under G.L. 
c. 92, § 38 has been nullified by St. 1966, c. 685, § 3, if and to the extent that 
such rule or regulation is directed at "water pollution abatement or 
control . . . ." The anti-pollution program envisioned in the 1966 statute is a 
comprehensive one. Under § 1 thereof, provisions were inserted in G.L. c. 21 
delegating broad supervisory and regulatory powers to the Division of Water 



34 P.D. 12 

Pollution Control (§§ 27, 34, 43, 46, 49) and treating the MDC in certain 
respects simply as a "water pollution abatement district" for purposes of this 
program (§ 30A). General Laws c. 21, § 42, also inserted by St. 1966, c. 685, § 
1, covers much of the ground formerly left to administrative regulation by such 
agencies as the MDC: 

"Whoever directly or indirectly throws, drains, runs or discharges or 
permits the discharge into the waters of the commonwealth organic 
or inorganic matter which shall cause, or contribute to, a condition 
in contravention of the standards adopted by the division shall be 
punished by a fine of one hundred dollars. Each day such violation 
continues shall be a separate offense, punishable by a like fine. For 
the purposes of this section and sections forty-three to forty-six, 
inclusive, the words 'whoever' and 'person' shall include political 
subdivisions of the commonwealth and public corporations." 

I am informed by the Division of Water Pollution Control that "standards" have 
been adopted for purposes of the foregoing statute with respect to the Charles 
River. If pre-existing regulations of the MDC on pollution of the Charles River 
remained in force - differing in their terms from the above-quoted statute and 
from regulations promulgated by the Division of Water Pollution Control, with 
violators subject to the fifty-dollar fine imposed by G.L. c. 92, § 38 rather than 
the hundred-dollar fine prescribed in G.L. c. 21, § 42 - the Division of Water 
Pollution Control could not function effectively and the legislative scheme 
embodied in the Massachusetts Clean Waters Act would be seriously impaired. I 
am therefore persuaded that the elimination of the MDC's "authority to 
administer water pollution abatement or control laws" by St. 1966, c. 685, § 3 
was intended not only to divest the MDC of its authority to adopt certain types 
of regulations, but to rescind existing regulations made in the exercise of that 
authority. 

Rule 9, quoted by you in Question 1, is, at least to some extent, a regulation 
of this type. Its first clause, which forbids any person to "throw or dump any 
papers, garbage or other refuse into the waters of the [Charles River] Basin," 
appears to be directed primarily against littering rather than pollution, since not 
everything falling into the category of "papers, garbage or other refuse" would 
actually pollute the River as that term is ordinarily understood. However, Rule 9 
goes on to provide that no person shall "allow any form of pollution to empty 
or drain into said waters" (emphasis supplied), and even its first clause is in some 
degree an anti-pollution measure. Furthermore, the Rule as a whole overlaps 
with G.L. c. 21, § 42, quoted above. It is therefore my opinion that Rule 9 is no 
longer enforceable. This is not to say that a regulation confined to littering, as 
distinguished from pollution, could not hereafter be adopted by the MDC. 

The only other regulation among those you have furnished us which appears 
to touch on the problem of pollution is Rule 7, which provides: 

"No person shall have or ride or drive a horse or motor or other 
vehicle upon the ice, or cut holes in or deface or defile the ice in said 
Basin." (Emphasis supplied.) 

Since "defile" is a synonym for "pollute" {Webster's Third New International 
Dictionary (1964), p. 1756), and since pollution of the ice on the Charles is 
equivalent to pollution of its water, I am of the opinion that the words "or 
defile" have been effectively stricken from Rule 7 by operation of St. 1966, c. 
685, § 3. 



P.D. 12 35 

Since Questions 2 and 3 both deal with the MDC's law-enforcement powers, I 
answer them together. In doing so I assume that your questions refer to criminal 
enforcement by the MDC police force and not to civil enforcement through the 
institution of bills in equity for injunctions and the like. The latter type of 
enforcement, of course, remains within the exclusive province of the 
Department of the Attorney General. See: G.L. c. 12, § 3; G.L. c. 21, § 44. 

Except to the extent that a particular statute or regulation may have been 
vitiated by St. 1966, c. 685 (such Rule 9, discussed above), I am of the opinion 
that the law-enforcement powers of the MDC police were in no way impaired or 
reduced by the 1966 legislation. These powers are conferred by G.L. c. 92, § 61, 
which provides (with exceptions not here material) that the MDC police "shall 
have within the metropolitan parks district, and within the towns outside said 
district wherein any of the property of the metropolitan water and sewerage 
districts* is situated, all the powers of police officers and constables of towns of 
this commonwealth . . . ." Their powers, like those of local police officers, are of 
a general character, extending to the enforcement of laws administered by a 
variety of state agencies, such as the Registry of Motor Vehicles. In short, I 
regard the administration of the laws referred to in St. 196& c. 685, § 3 and the 
criminal enforcement of those laws as two completely t's^parate functions. It 
follows that the power of the MDC police to enforce anti-pollution laws is not a 
part of the MDC's "authority to administer water pollution abatement or 
control laws" which was transferred to the Division of Water Pollution Control. 

In arriving at this conclusion I am not unmindful of G.L. c. 21, § 50, inserted 
by St. 1966, c. 685, § 1, which provides that "the officers of the division of law 
enforcement [of the Department of Natural Resources] shall, upon request of 
the water resources commission, investigate and prosecute violations of law, 
orders or rules and regulations relating to [the Massachusetts Clean Waters 
Act] ." The statutory authority of officers in the Division of Law Enforcement 
of the Department of Natural Resources, unlike that of the MDC police, is 
confined to the enforcement of "penal laws which it is the duty of the 
department to enforce . . . ." G.L. c. 21, § 6A. The Division of Water Pollution 
Control is under the control of the Water Resources Commission (G.L. c. 21, § 
26), which is nominally within the Department of Natural Resources "but not 
under the supervision and control thereof." G.L. c. 21, §§ 1, 8. Thus, it may 
well have been necessary to enact separate legislation in order to give the 
Division of Law Enforcement jurisdiction over pollution-law violations, and it 
was certainly necessary to do so in order to put the personnel of that Division at 
the disposal of the Water Resources Commission. That, I believe, was the 
purpose of the quoted provision of G.L. c. 21, § 50. I do not believe that § 50 
can be legitimately read as conferring exclusive law-enforcement power upon the 
Division of Law Enforcement. 

In any event the administrative authority over pollution matters removed 
from the MDC and other agencies by St. 1966, c. 685, § 3 transferred that 
authority to the Division of Water Pollution Control - not to the Division of 
Law Enforcement. The Division of Water Pollution Control has no police of its 
own, and, as indicated in G.L. c. 21, § 50, must therefore rely upon the police 

*It is obvious that the phrase "the property of the metropolitan water and sewerage dis- 
tricts" in §61 refers to the property of the Commonwealth which is under the control of 
those districts, since the districts themselves hold title to no property but are merely charged 
with the control of certain property owned by the Commonwealth. 



36 P.D. 12 

of a different agency - the Division of Law Enforcement. Thus, if § 3 of the 
1966 legislation were construed as transferring the anti-pollution enforcement 
powers of the MDC to the Division of Water Pollution Control, those powers 
would be reposed in an agency which, in itself, could not exercise them. 

It is therefore my opinion that St. 1966, c. 685 does not affect the power of 
the MDC, through its police force, to enforce criminally all valid statutes and 
regulations of the types described in Questions 2 and 3, and to prosecute 
violators thereof. 

Very truly yours, 
ELLIOT L. RICHARDSON 

Attorney General 



Number 4. August 2, 1968 

MRS. HELEN C. SULLIVAN 

Director of Registration 

Department of Civiffi&xvice and Registration 

State Office Buildings-Government Center 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mrs. Sullivan: 

You have requested my opinion as to the legal effect, if any, of a certain 
memorandum of understanding upon Rule 49, Item 22, of the Rules and 
Regulations of the Board of Registration in Pharmacy.* 

The following facts are set forth in your letter: 

"The Board as authorized by S. 42A of C 1 12 of the General Laws 
as amended by C 634 of the Acts of 1960 adopted Rules and 
Regulations of Professional Conduct on September 29, 1961 and 
filed with the Secretary of State on the same day. The thirty Rules 
under the Code of Professional Conduct for Pharmacy were 
designated as Rule 49 effective July 12, 1966, and filed with the 
Secretary of State on that date. 

"Item #22 of Rule 49 reads as follows: 'A Registered Pharmacist 
connected with and employed by a hospital or clinic shall only 
dispense medicines or drugs to in-patients, and to out-patients who 
are under the immediate treatment of the hospital or clinic' 

"On February 20, 1962 a memorandum of understanding between 
the Department of Public Health and the Board of Registration in 
Pharmacy was executed. A copy of a signed agreement (the 
agreement) by the Secretary of the Board Mr. Anthony P. Giuggio 
and Dr. A. Daniel Rubenstein of the Department of Public Health 
relative to this memorandum is enclosed for your perusal. In this 
agreement comment on Item #22 of Rule 49 (Code of Professional 
Conduct) reads as follows: 

" 'Under this Rule the hospital pharmacist may dispense to any 

♦Initially you also requested my opinion about the legal effect of Item 22 itself. It is my 
understanding, however, based on a recent letter received from you by the Chief of our Ad- 
ministrative Division, that you no longer seek my opinion on this question. 



P.D. 12 37 

employee for his own use and for the use of his spouse and children 
living in the same household with him medicines and drugs as part of 
his employment agreement and to a student medicines and drugs as 
part of the student agreement. Prescriptions must be written by a 
Staff Physician in the hospital.' 

"The Agreement was not adopted by the Board as a regulation or 
filed with the Secretary of State. Item #22 of Rule 49 has never 
been amended." 

It is clear from the facts disclosed in your letter that the memorandum of 
understanding had no effect on the terms of Item 22 of Rule 49. Any 
amendment of Item 22 would require action by the Board of Registration in 
Pharmacy in accordance with the rule-making provisions of G.L. c. 30A, 
including the filing of the amendment with the State Secretary as provided in 
G.L. c. 30A, § 5, and G.L. c. 30, § 37. Your letter indicates that there has been 
no compliance with these statutory requirements. 

I do not mean to imply, however, that Item 22 in its unamended form is 
necessarily valid. Before any attempt is made to enforce Item 22, the Board 
should be prepared to establish factually that it meets the test of validity 
enunciated by the Supreme Judicial Court in Milligan v. Board of Registration in 
Pharmacy, 348 Mass. 491, 498: namely, that it "has a rational tendency to 
promote the safety health, morals and general welfare of the public." In the 
absence of further information I am, of course, unable to express any opinion at 
this time on whether Item 22 of Rule 49 meets this test. 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttorney General 



Number 5. August 30, 1968 

HONORABLE JOHN F.X. DAVOREN 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Mr. Secretary: 

Pursuant to G.L. c. 53, § 19,* you have asked me to determine whether the 
following question contained in a petition filed with your office by certain 
voters of the Fifteenth Suffolk Representative District is "one of public policy" 
within the meaning of the foregoing statute. You also ask, if my determination is 
in the affirmative, to supply you, under the same statute, with a form of 
question "suited for presentation upon the ballot" in that district. The question 
contained in the petition reads as follows: ; 

*"On an application signed by twelve hundred voters in any senatorial district, or by two 
hundred voters in any representative district, asking for the submission to the voters of that 
senatorial or representative district of any question of instructions to the senator or 
representatives from that district, and stating the substance thereof, the attorney general 
shall upon request of the state secretary determine whether or not such question is one of 
public policy, and if such question is determined to be one of public policy, the state 
secretary and the attorney general shall draft it in such simple unequivocal and adequate 
form as shall be deemed best suited for presentation upon the ballot. Upon the fulfillment 
of the requirements of this and the two following sections the state secretary shall place 
such question on the official ballot to be used in that senatorial or representative district at 
the next state election." 



38 P.D. 12 

"Shall the Representative from this district be instructed to vote to 
approve the passage of a bill permitting the construction of a track 
arena on the Metropolitan District Commission Reservation 
bordering the Charles River and Soldiers Field Road in Brighton?" 

You have advised me that the petition contains 500 certified signatures of 
voters and was seasonably filed with your office on August 23, 1968. 

Nothing in the petition, beyond the statement of the question itself, indicates 
the nature of the problem to which the question is directed. However, the 
statute contains no requirement that the petition include an explanation or 
exposition of the problem. It would accordingly appear that the determination 
of whether or not the question is "one of public policy" must be gathered from 
the form of the statement of the question in the petition, drawing such 
inferences therefrom and relying on such facts of common knowledge, actual or 
presumed, in the voting district concerned as may be reasonable. That this is the 
proper method of evaluating a question presented for submission under G.L. c. 
53, § 19, finds support in opinions of former Attorneys General holding that 
since the phrase "public policy" in the statute is not limited or qualified in any 
way, it is to be construed broadly. 8 Op. Atty. Gen. 490, 493; Report of the 
Attorney General for the Year Ending November 30, 1939, pp. 99-100; Report 
of the Attorney General for the Year Ending June 30, 1955, pp. 51-52. 

Having thus considered the petition, I hereby determine that the question 
contained therein is "one of public policy" within the meaning of G.L. c. 53, § 
19. In accordance with the provisions thereof and with your request, I submit 
the following statement of the question for presentation upon the ballot: 

"Shall the Representative from this district be instructed to vote to 
approve the passage of a bill permitting the construction of a track 
arena on the Metropolitan District Commission Reservation 
bordering the Charles River and Soldiers Field Road in the Brighton 
district of Boston, Massachusetts?" 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttorney General 



Number 6. September 12, 1968 

HONORABLE CHARLES H. McNAMARA 

Commissioner of Agriculture 
State Office Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Sir: 

You have requested my opinion as to whether a certain milk cooperative 
marketing corporation (the "Association") which operates a milk processing 
plant in the Fall River area is required to comply with the provisions of G.L. c. 
94 § § 42A-42K relative to the licensing and bonding of operators of milk 
plants. The Association enters into a "Producer Membership and Marketing 
Contract" with its producer members by which a member agrees to sell to the 
Association and the Association agrees to buy all the member's milk and dairy 
products. Paragraph 5 of the contract provides: 



P.D. 12 39 

"Producer Member agrees that title to the milk or dairy products 
sold by the Producer Member to the Association shall pass to the 
Association in the case of bulk farm cooled milk when the milk is 
pumped into the tank truck designated by the Association, without 
right or rejection thereafter. Producer Member further agrees that in 
the case of milk cooled in cans, title to the said milk shall pass to the 
Association upon the loading of the cans of milk into a truck 
designated by the Association, except that the Association shall have 
the right to reject and send back to the Producer Member any can 
cooled milk which, upon arrival at the truck destination, does not 
meet the quality requirements as provided in Paragraph 4 of this 
agreement." 

Paragraph 6 of the contract provides that "subject to adjustments for 
differentials . . ., it [the Association] will pay the Producer Member the price 
received for . . . milk and dairy products, less costs of handling, operation, 
supervision [and certain other costs] ." 

You ask: 

"Does the . . . Association, acting as a marketing cooperative for 
Massachusetts Producers, need [to] be licensed and bonded under 
the provisions of General Laws, Chapter 94, Sections 42A through 
K?" 

General Laws c. 94, § 42A provides, in pertinent part: 

"No person buying milk or cream from Massachusetts producers, in 
this section and in sections forty-two B to forty-two K, inclusive, 
called producers, shall operate any milk plant or manufactory unless 
licensed to operate such plants and manufactories by the 
commissioner of agriculture . . . Such application shall be made upon 
a form prescribed by the commissioner, and shall contain a 
statement of such information as he may require to aid him in fixing 
the amount of bond hereinafter required. Such statement shall be 
made under penalties of perjury by the applicant, if an individual, 
and, if the applicant is a corporation, by its president and treasurer. 
A license shall not be issued unless the applicant shall execute and 
file at the time of filing the application ... a bond or other security 
satisfactory to the commissioner or shall be relieved therefrom as 
provided in section forty-two E."* 

General Laws c. 94, § 42B provides that the bond shall be a surety company 
bond and that its penal sum "shall be substantially equivalent to the total 
purchase price, as determined by the commissioner [of agriculture] , of milk and 
cream purchased by the applicant from Massachusetts producers in the average 
period between payments by him to producers during the three months 
immediately preceding the date of application for a license, plus ten per cent of 
such total purchase price " 



*Certain producers of small quantities of milk and cream are exempted by G. L. c. 94, § 
42E from the requirement of filing a bond. We assume that the Association does not come 
within this exemption. 



40 P.D. 12 

I find no provision in the statute that exempts cooperative marketing 
corporations from being licensed and bonded. The fact that the Association in 
the present situation buys its milk from its own producer members does not put 
it in a position different from that of other buyers of milk who operate milk 
plants. Nor may a different position be implied. The Association is a separate 
legal entity, distinct from its members and cannot be regarded as identical with 
them. See Galdi v. Caribbean Sugar Co., 327 Mass. 402, 407-408; My Bread 
Baking Co. v. Cumberland Farms, Inc., 1968 Mass. Adv. Sh. 217, 220-222. I 
therefore conclude that even though the Association buys its milk from its own 
producer members, it must be licensed and bonded under G.L. c. 94, § 42A. 

You have also asked: 

"If [a] bond is required, would there be a change of opinion if 
the title of the milk did not pass to the Cooperative?" 

This question assumes a hypothetical set of facts and is not susceptible of an 
answer in its present form. Although the passage of title is a distinctive 
characteristic of a sale (G.L. c. 106, 2-106(1) ), the mere passage of title may not 
necessarily be determinative of the application of G.L. c. 94, § 42A. Lacking a 
full statement of a given set of circumstances where title might not pass, I do not 
express — nor do I intimate — any opinion on your second question. 

Very truly yours, 
ELLIOT L. RICHARDSON 

Attorney General 



Number 7. September 20, 1968 

HONORABLE ALFRED L. FRECHETTE, M.D. 

Commissioner of Public Health 

State House 

Boston, Massachusetts 02133 

Dear Doctor Frechette: 

You have requested my opinion as to the validity of action by the 
Department of Public Health in eliminating nursing notes from a regulation 
which defines the data required to be included in the medical records that 
hospitals must keep pursuant to G.L. c. 1 1 1, § 70. 

The required content of hospital medical records is defined in the "Licensure 
Rules and Regulations for Hospitals and Sanatoria in Massachusetts" (1950), 
which are applicable to all hospitals licensed by the Department of Public 
Health. Prior to this elimination of nursing notes from the required records, 
Chapter Two (II) (C) (1) of these rules provided: 

"The medical record shall include date of admission; identifica- 
tion data; chief complaint; history of present illness; past history; 
family history; physical examination; provisional diagnosis; reports 
of special examinations or procedures, including consultation; 
clinical, laboratory and X-ray reports; complete surgical and dental 
record; medical, surgical and dental treatment; progress and nursing 
notes; graphic bedside charts; final diagnosis; condition on discharge; 
date of discharge; autopsy report, if any." (Emphasis supplied.) 

After a public hearing under G.L. c. 30A, the Department on December 12, 
1967, approved the deletion of the words "and nursing" from this regulation. 



P.D. 12 41 

1. Scope of Review. I regard my role in passing on the validity of the deletion 
of "nursing notes" from the regulation defining the content of required medical 
records, as confined to a determination of whether the Department's action was 
unlawful on its face, being demonstrably beyond its authority. This is to say, the 
issue as it stands before me is limited to whether, wholly apart from factual 
matters which might be developed in an adversary proceeding, the action was 
clearly in conflict with the applicable statutes or demonstrably exceeded the 
Department's authority. Cf. Board of Old Age Assistance of Natick v. 
Commissioner of Public Welfare, 326 Mass. 121, 124. The wisdom, as 
distinguished from the legality, of the Department's action, is beyond my 
province. Cf Silverman v. Board of Registration in Optometry, 344 Mass. 129, 
135. Indeed, because my review of a questioned regulation occurs without the 
benefits of an adversary proceeding, my scope of review is, as a practical matter, 
even more narrowly circumscribed than that of a reviewing court. 

2. Nature of Nursing Notes. You state that nursing notes are "made up largely 
of observations of the nursing personnel and these observations are recorded by 
the nurse." You also state that "it is the job of the attending physician to 
determine the significance of the notes and all details of importance should then 
be recorded in the progress notes, which are his responsibility." 

You have furnished me with certain extracts from nursing literature. One 
extract states that "the nurse's notes must be an accurate and purely factual 
report of her observations of the patient and the care he has received." 1 Another 
extract reads in pertinent part: 

"It is the nurses' responsibility to maintain concise, orderly, and 
up-to-date records on each patient. In hospital practice, this is 
simplified by the use of standardized record forms for the various 
types of information. The record will include the charting of 
temperature, pulse and respiration, bowel movements, urinary 
outputs, listing of medications used and treatments administered, 
the result of examinations, and observations by the nurse and all 
other pertinent information. Recording must be entered immediate- 
ly, for it is very unwise to rely too greatly on memory. The 
physician frequently refers to the record and therefore it is essential 
that it be properly kept to avoid confusion and to enable him to 
obtain information with a minimum of time and trouble." 2 

You have also called to my attention the fact that the Joint Commission on 
the Accreditation of Hospitals, a national hospital accreditation agency, "has no 
requirements concerning nurses notes. It is the responsibility of the hospital's 
medical and nursing staffs to develop policy concerning the type and extent of 
nurses notes to be kept." 3 

3. The Department's Rule-Making Authority. The Commissioner of Public 
Health together with the Public Health Council (of which the Commissioner is 
an ex officio member, G.L. c. 17, § 3), comprise the Department of Public 

'Hayt, et al., "The Law of the Hospital and Nurse" (Hospital Textbook Company, 1958) 
page 316. 

2 Petry, "The Encyclopedia of Nursing," (W. B. Saunders, 1952). 

3 As quoted from Hayt, et al., "The Law of Hospital and Nurse," supra, page 318. The Joint 
Commission is sponsored by the American Medical Association, the Canadian Medical As- 
sociation, the American College of Physicians and the American Hospital Association. 



42 P.D. 12 

Health. G.L. c. 17, § 1. Within the Department, the Public Health Council is the 
general rule-making body. General Laws c. 1 1 1, § 3 provides in pertinent part: 

"The council shall make and promulgate rules and regulations, take 
evidence in appeals, consider plans and appointments required by 
law, hold hearings, and discharge other duties required by law; but it 
shall have no administrative or executive functions." 

General Laws c. 1 1 1, § 53, as most recently amended by St. 1967, c. 891, § 
3, provides in pertinent part: 

'The department [of public health] shall, after a public hearing, 
promulgate rules and regulations for the conduct of hospitals and 
clinics. Such rules and regulations shall include requirements for 
diagnostic and therapeutic facilities for the study, diagnosis, 
treatment and care of patients, and the keeping of proper medical 
records." 

Thus, these statutes confer on the Department's Public Health Council not 
only a general rule-making authority, but also a specific authority to regulate 
"requirements for . . . the keeping of proper medical records." 

In view of these provisions of law and the material reviewed above as to the 
general nature of nursing notes, I cannot rule that the elimination of nursing 
notes as part of the requirements for medical records is demonstrably beyond 
the Department's authority and thus invalid. Nor can I hold that G.L. c. 1 1 1. § 
70, which requires licensed hospitals to "keep records of the treatment of the 
cases under their care and the medical history of the same," mandates otherwise. 
This provision does not purport to define the specific content of the records 
required to be kept. 

This conclusion finds support in the doctrine that an administrative agency 
may exercise its rule-making powers to define statutory terms that have been left 
undefined by the legislature. See Pacific Coast European Conference v. Federal 
Maritime Commission, 376 F.2d 785 (D.C. Cir. 1967). 

Your request for my opinion, I note, goes beyond the mere deletion of 
nursing notes from the regulation. It also asks in general terms whether the 
Department is precluded from "regulating what the content of the medical 
record shall contain." 1 am not inclined to express an opinion on this broad 
question, since without a specification of particular items, I am not in a position 
to make an adequate determination. Conceivably, certain kinds of records may 
be required by law and may not be subject to administrative variation. 

Very truly yours, 
ELLIOT L. RICHARDSON 

Attorney General 



Number 8. September 23, 1968 

MR. SAMUEL M. FLAKSMAN 

Executive Secretary 

Council Chamber 

Stale House 

Boston, Massachusetts 021 33 

Dear Mr. Elaksman: 

Acting on behalf of the Executive Council, you have requested my opinion as 



P.D. 12 43 

to the legality of authorizing payments upon a certain warrant now pending 
before the Council for approval. 

The payments in question are for services rendered by two individuals as 
executive director and consultant, respectively, of a special commission created 
by Res. 1965, c. 80. According to your letter, the commission filed its final 
report on June 15, 1967, and went out of existence on that date. The invoices 
appended to your letter indicate that the services for which payment is sought 
were for the most part rendered thereafter. 

It is my understanding that at some time prior to July 19 of this year, the 
same invoices were submitted but payment was never made, presumably because 
substantially all the services were rendered after June 15, 1967. A new warrant 
has since been prepared and was submitted to the Council on July 31 . 

Between the initial submission and resubmission of this matter to the 
Council, the General Court enacted Res. 1968, c. 126, approved by the 
Governor on July 19, which provides: 

"RESOLVED, That the special commission, established by 
chapter eighty of the acts of nineteen hundred and sixty-five, and 
most recently revived and continued by chapter one hundred and 
twelve of the resolves of nineteen hundred and sixty-six, is hereby 
revived for the sole purpose of paying certain bills contracted by it 
for services and supplies, notwithstanding the fact that said 
commission had filed its final report. Said commission may expend 
for such purposes from the balance available in item 0267-07 of 
section two of chapter one hundred and thirty-two of the acts of 
nineteen hundred and sixty-eight." (Emphasis supplied.) 

In my opinion the payments in question are authorized by the foregoing 
Resolve. By its very terms, the Resolve appears to be directed specifically at the 
problem of paying bills incurred after the commission has filed its final report. 
Moreover, we have been advised by the Comptroller's Division that, to the best 
of its knowledge, these are the only unpaid bills to which the Resolve could 
possibly refer. Thus, if it did not authorize this payment, the Resolve would be a 
nullity. Indeed, all the circumstances tend to indicate that it was these particular 
unpaid bills that occasioned enactment of Res. 126. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 9. September 27, 1968 

HONORABLE ROBERT Q. CRANE 

Treasurer and Receiver General 

State House 

Boston, Massachusetts 02133 

Dear Mr. Treasurer: 

You have requested my opinion as to whether the voluntary retirement from 
state service of the "second member" of the State Board of Retirement 
forecloses him from serving out the balance of his three-year term on the Board, 
to which he had been elected as of February 16, 1968. I conclude that he may 
serve out his three-year term. 



44 P.D. 12 

It is provided by G.L. c. 10, § 18 that the second member of the State Board 
of Retirement: 

". . . shall be elected by the members in service of such system from 
among their number in such manner and for such term, not 
exceeding three years, as the commissioner of insurance shall 
determine. . . ." 

Section 18 further provides: 

"Each member of such retirement board shall continue to hold 
office until the expiration of his term and until the qualification of 
his successor. Upon the expiration of the term of office of any 
elected, chosen or appointed member or in case of a vacancy in 
either of said offices, his successor shall be elected, chosen or 
appointed as aforesaid for a three-year term or for the unexpired 
portion thereof. . . ." 

Identical language is found in statutes relating to the Teachers' Retirement 
Board (G.L. c. 15, § 16) and the retirement boards established for counties, 
cities and towns (G.L. c. 32, § 20(4) ). I have found no cases, opinions of an 
Attorney General or legislative history which clearly establishes whether the 
retirement from service of the second member of a Board disqualifies him from 
continuing on the Board. Neither has the insurance commissioner formulated 
any written guidelines, pursuant to G.L. c. 10, § 18, which would assist in the 
determination of the question you have posed. I must therefore rely upon the 
language of § 18 and the general policy of the Massachusetts retirement laws. 

In requiring that the second member of the Board be elected "by the 
members in service of such system from among their number," § 18 does not 
specifically command that such member continue to be a "member in service" 
throughout his term. That the General Court knew how to express a requirement 
that the second member be a member in service during his entire term is 
illustrated by a predecessor of § 18, which declared that: "the second member 
shall be a member of the association elected by the latter." (St. 191 1, c. 532, § 
4, cl. (1) ). It is significant that the language employed in the 1911 statute was 
changed to language substantially similar to that in § 18 by St. 1927, c. 325. 
Moreover, the provision in § 18 that each member of the Board shall continue in 
office until the expiration of his term further emphasizes the legislative intention 
to permit a retired Board member to serve out his elected term. 

The continuance in an elected office by a member of the state retirement 
system who has retired from his state position is consistent with other provisions 
of the state retirement law. For example, § 5(d) of G.L. c. 32 states that a 
member of the state retirement system "holding office by popular election" at 
the time of reaching maximum age shall continue to hold his elected office. 
Although I cannot conclude that the second member of the Board is in office by 
virtue of a "popular election," § 5(d) illustrates a policy of the General Court to 
permit elected officials to continue in office despite their retirement from state 
service. 

There is nothing in the information furnished us to suggest that any "member 
in service" point of view might be lost by the retirement of the "second 
member" from state service. Nor do I discern in the pertinent statutes any 
indication of any legislative purpose which would be frustrated by -such 
retirement. 



P.D. 12 45 

I therefore conclude that the current "second member" of the Board of 
Retirement may serve out his three-year term despite his retirement from state 
service. 

Very truly yours, 
ELLIOT L. RICHARDSON 

Attorney General 



Number 10. October 8, 1968 

A L COHOLIC BE VERA GES CONTR OL COMMISSION 

State Office Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Gentlemen: 

You have requested my opinion relative to the interpretation of G.L. c. 138, 
§ 25C(a). That subsection provides that: 

"No brand of alcoholic beverages shall be sold within the 
commonwealth to a wholesaler or retailer, and no manufacturer or 
wholesaler shall sell, offer for sale, solicit any order for, or advertise, 
any alcoholic beverages, the container of which bears a label stating 
the brand or the name of the owner or producer, unless a schedule 
of minimum consumer prices for each such brand of alcoholic 
beverages shall first have been filed with the commission and is then 
in effect. '" 

This provision is part of a regulatory scheme which includes § 25C(d). The 
latter section provides that the prices filed with the Commission shall not go into 
effect unless approved by it "as not being excessive, inadequate, or unfairly 
discriminatory." It is the administration of this § 25C(d) which was the subject 
of our recent special report to the Commission. 

In your letter request of October 7, you state that "[d]ue to a lack of 
administrative personnel and resources, the Commission is unable to properly 
approve prices" under § 25C(d), for the forthcoming November-December price 
period. Therefore, you have expressed your concern that no minimum consumer 
prices may be "in effect" for purposes of §25C(a) for this period. You have 
asked for our opinion as to whether, in these circumstances, the fact that no 
minimum consumer prices will be "in effect" would prohibit the sale of 
alcoholic beverages by wholesalers to retailers. 

On the basis of the facts as stated in your letter, including your factual 
conclusion that the failure to approve prices is "[d] ue to a lack of administrative 
personnel and resources," I conclude that in the present extraordinary 
circumstances, § 25C(a) would not prohibit such sales. Plainly that statute 
necessarily presupposes that the Commission will have the resources to have 
processed the price schedules filed with it so as to enable it, in accordance with 
§ 25C(d), to approve the prices "as not being excessive, inadequate, or unfairly 
discriminatory." Where the Commission has not simply withheld its approval 
because of the failure of particular prices in a schedule to meet the required 
statutory standard, but has conceded that it is impossible for it to determine 
such compliance for any prices, then in my opinion the Legislature did not 
intend § 25C(a) to prohibit all sales from wholesalers to retailers. Otherwise the 
entire distribution of alcoholic beverages in the Commonwealth would be 



46 P.D. 12 

paralyzed, a result which would be directly contrary to the stated purpose of the 
Legislature "to meet the reasonable demand of the public for pure alcoholic 
beverages. " G.L. c. 138, § 23. 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttornev General 



Number 11. October 8, 1968 

ALCOHOLIC BEVERAGES CONTROL COMMISSION 
State Office Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Gentlemen: 

You have requested my opinion as to whether you may, under the 
circumstances described in your letter of October 7, defer implementing the new 
sixty-day credit law applicable to sales of alcoholic beverages (St. 1968, c. 574) 
until such time as the Legislature appropriates to your Commission the funds 
you deem necessary for this purpose. In general, this law provides for a 
maximum lawful period of sixty days for credit extended to a retailer by a 
wholesaler for prohibiting any credit to a retailer who is delinquent in his 
payments beyond sixty days and for criminal penalties for violations of these 
rules. 

You have previously been advised by my office as to certain of your duties 
under this credit law, in connection with a proposal by which you may avail 
yourselves of the output of a private service bureau which will employ a 
computer to process the necessary initial paper work. You have been advised 
that prior to your certification of the correctness of a daily list of delinquent 
retailers, you must be independently satisfied that it accurately represents the 
underlying delinquency notices. You have also been advised that you should 
provide procedures which would permit retailers an opportunity to contest the 
factual allegations made by wholesalers in the underlying delinquency notices. 

You state that the Legislature has appropriated no funds whatever for your 
administration of this new law and that without additional funds any attempt to 
process the several thousand daily delinquency notices, to hear protests, 
determine violations and otherwise administer the new law will be "absolutely 
impossible". You further state that in your opinion, such an attempt to 
implement the law in a partial, incomplete or inadequate manner would "cause 
serious hardship and injustices to innocent licensees. " In support of this 
statement, you cite the possibility of unjustified economic and criminal penalties 
which might be suffered by these licensees. 

It is of course beyond my province to make a judgement as to your internal 
financial or personnel needs. These are administrative and executive matters, 
involving factual determinations and judgments which are beyond the realm of 
my office. My legal opinion, based on the facts as stated by you, is as follows. 

I find little legal precedent to guide you in the difficult situation in which 
you find yourselves. You are faced with the responsibility of administering a 
law, yet, on the facts stated, you are denied the tools necessary to perform your 
task. Plainly you cannot formally suspend the operation of the law, that being a 
function reserved by Article 20 of the Massachusetts Declaration of Rights to 



P.D. 12 47 

the Legislature itself. But this obvious proposition is not fully responsive to the 
issue presented. 

In the first place, you do not seek to effect such a suspension, since portions 
of the act, such as the establishment of sixty days as the maximum lawful term 
of credit, do not need any administrative action to become effective. 

Secondly, there are numerous examples of state and federal laws which 
require some form of administrative action in order to become fully effective. 
While such action should, of course, in the usual case be taken as soon as 
practicable, seldom is this action completed by a law's effective date. Delays of 
this nature are generally accepted as inherent in any complicated regulatory 
structure. 

Thirdly, and most important, the present situation is one in which incomplete 
or inadequate administrative action (which would be caused in this instances by 
a lack of appropriated funds) would result in the risk of serious injustices to 
various persons subject to your jurisdiction. For example, unless you were to 
establish adequate procedures (which obviously would involve considerable staff 
and Commission time and effort) to permit retailers to contest the accuracy of 
delinquency notices, retailers could be posted as delinquent solely on the basis 
of allegations of any wholesaler. But there obviously will be cases of bona fide 
disputes as to the delivery of goods, as to their quality or quantity and as to 
payments claimed to have been made or not made on their account. If retailers 
were posted as delinquent without a chance to dispute wholesalers' claims, their 
credit could be cut off (and criminal penalties threatened) even though not in 
fact delinquent. Thus adequate administrative staff work under this law would 
seem essential to its fair application. As public officials you are charged with the 
duty of executing your duties in a fair and impartial manner. It is inconceivable 
that the Legislature intended you to administer the new statute in any other 
manner. 

If the unfair consequences of implementation described above are, in your 
judgment, reasonably certain to occur at this time in light of your present 
administrative capacity, then I would advise you that sound public policy 
dictates that you should defer implementation until such time as they may be 
avoided. If in your view this situation cannot be remedied until you receive 
additional funds (a conclusion on which, as stated earlier, I pass no judgment), 
you should await the appropriation of such funds. Cf. 1 Op. A.G. 556 (1898). 

In the meantime, of course, you should be taking all necessary steps to adopt 
the procedures and regulations that will eventually govern the administration of 
the law. My office will, of course, be available to render you all necessary legal 
assistance in this regard. 

Sincerely, 
ELLIOT L. RICHARDSON 

Attorney General 



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. 75 A, § 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 of fair 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 



Number 13. October 18, 1968 

HONORABLE ROBERT Q. CRANE 

Treasurer and Receiver General 
Chairman, State Board of Retirement 
State House 
Boston, Massachusetts 02133 

Dear Mr. Crane: 

As Chairman of the Board of Retirement, you have requested my opinion as 
to the effect of St. 1968, c. 700 on the amount of the pensions payable to 
widows of certain classes of veterans who were employed in public service during 
their lifetimes. 

Section 1 of the 1968 statute amended G.L. c. 32, § 58 to read as follows: 

"A veteran who has been in the service of the commonwealth, or 
of any county, city, town or district or any housing authority, for a 
total period of thirty years in the aggregate, shall, at his own request, 
with the approval of the retiring authority, be retired from active 
service at seventy-two percent of the highest annual rate of 
compensation, including any bonuses paid in lieu of additional salary 
or as a temporary wage increase in addition to his regular 
compensation and including any maintenance allowance, payable to 
him while he was holding the grade held by him at his retirement, 
and payable from the same source." (Emphasis supplied.) 

The effect of the amendment was to increase the percentage of annual 
compensation used in computing the retirement allowance from 65% to 72%. 
Section 2 of St. 1968, c. 700 provides that "any veteran who, prior to the 



P.D. 12 53 

effective date of this act, was retired under [G.L. c. 32, § 58] shall have his 
annual pension adjusted, so as to comply with the provisions of said [§ 58] , as 
amended by section one of this act." (Emphasis supplied.) The 1968 statute was 
approved July 19 and its effective date is October 17, 1968. 

The problem arises under G.L. c. 32, § 58B, which was not amended by St. 
1968, c. 700. Section 58B allows a veteran qualifying for a pension under § 58 
to accept a lesser sum in order that an allowance may be payable to his widow 
after death. You are concerned about the effect of the 1968 amendment to § 58 
upon the rights of widows of veterans who have died prior to October 17, 1968, 
the effective date of the amendment. You ask specifically about the rights of a 
widow in the following situations: 

1. Where the veteran had elected to accept the option under § 
58B and had retired before his death. 

2. Where the veteran was entitled to retire but died before 
applying for retirement and before accepting the option under § 
58B. 

I am of the opinion that the widows of both classes of veterans are entitled to 
an adjustment in the allowances payable to them under G.L. c. 32, § 58B. This 
conclusion is based on the inter-relationship which appears to have been 
intended between §§58 and 58B, and the effect on that interrelationship of St. 
1968, c. 700, § 2. 

The first paragraph of G.L. c. 32, § 58B provides: 

"A veteran who is entitled to be retired under the provisions of 
section fifty-eight may, on or before the date of his written 
application for retirement, elect to receive a lesser yearly amount of 
pension payable to such veteran during his lifetime, with the 
provision that upon his death leaving as a survivor his spouse at the 
time of his retirement two thirds of the yearly amount of such lesser 
pension shall be continued during the lifetime of and paid to such 
spouse; provided, however, that the surviving spouse shall receive not 
less than one half of the pension such employee is receiving at the 
time of his death . . ." The yearly amount of such lesser pension 
shall be determined so that the value, on the date of retirement, of 
the prospective payments to such veteran and to such spouse shall be 
the actuarial equivalent of the value on such date of the full pension 
that such veteran would be entitled to under the provisions of said 
section fifty-eight." 

It is clear that any veteran who retired under G.L. c. 32, § 58 before October 
17, 1968, // still living on that date, would be entitled to the benefits of the 
1968 amendment whether or not he had elected to accept the lesser sum under 
§ 58B. The source of the right to retire and to receive a pension lies exclusively 
in § 58 itself. Section 58B does not affect the existence of those rights, but 
deals only with the manner in which the pension is to be paid. The "lesser 
pension" payable to a veteran who has accepted the § 58B option is determined 
by a formula which is applied to "the full pension that such veteran would be 
entitled to under the provisions of [§ 58]." Since the amount of the "full 
pension" payable to a living veteran must be recomputed at the 72% rate 
because of the 1968 amendment to § 58, the same adjustment must be made in 
the "lesser pension" payable to a living veteran who made the election under § 
58B. 



54 P.D. 12 

Upon the death of a veteran who has accepted the "lesser pension" under § 
58B, his widow receives an allowance equal to "two thirds of the yearly amount 
of such lesser pension . . . ." If he should be entitled to an adjustment under St. 
1968, c. 700, § 2 in that "lesser pension" before his death, it follows that his 
widow's allowance payable thereafter would also have to be adjusted to conform 
to the increased pension rate. In this way the increase in the pension rate 
brought about by the 1968 amendment would ultimately inure to the benefit of 
the widow of a previously retired veteran who happens to be alive on the 
effective date of October 17, 1968. 

The foregoing case differs from the one described in part 1 of your question 
only in that the veteran in the latter case has died prior to October 17. But once 
it is conceded (as I believe it must be) that the widow of the previously retired 
veteran who died after October 17 will benefit from the increased pension rate, I 
can see no basis for supposing that the Legislature intended to deny similar 
benefits to widows of veterans who died before that date. The Supreme Judicial 
Court, in upholding the application of another statute increasing pensions 
payable to a broad class of veterans, stated that "[t] he benefits thereby afforded 
should not be denied to the plaintiff . . . unless there exists a substantial reason 
to believe he was not intended to be among those retired veterans receiving the 
increase." Johnson v. Milton, 349 Mass. 736, 740. I think that the same 
reasoning is applicable to the pension rights of retired veterans' widows in the 
present case. 

In my opinion the widow under § 58B must be treated as standing in the 
place of her deceased husband regardless of whether his death preceded or 
followed the effective date of the 1968 amendment. Under § 58B the lives of 
two persons — the veteran and his widow — are substituted for the life of the 
veteran alone in determining the period of the retirement benefits conferred by 
§ 58. For purposes of § 58B, therefore, I think that the reference to "veteran" 
in the retroactive adjustment clause of the 1968 statute should be construed as 
including the veteran's widow. Her rights are derivative and her survival to the 
effective date of October 17, 1968 was, in my opinion, intended to satisfy the 
statutory prerequisites for the increased pension rate to the same extent that her 
husband's survival to that date would have done so. 

Putting it a different way, I think that § 58B should be read as, in effect, 
including within the scope of the word "veteran" the widow in whose favor he 
has made the election provided in that section. Mathematically, this was 
certainly the intention of the Legislature, since § 58B provides that "[t]he 
yearly amount of such lesser pension shall be determined so that the value, on 
the date of retirement, of the prospective payments to such veteran and to such 
spouse shall be the actuarial equivalent of the value on such date of the full 
pension that such veteran would be entitled to under the provisions off § 58] . " 
(Emphasis supplied.) I am persuaded that a similar legislative purpose governs in 
determining the effect of the 1968 amendment to § 58. 

To be sure, a literal reading of some of the language of § 58B - such as the 
proviso that the widow receive "not less than one half of the pension such 
employee is receiving at the time of his death " (emphasis supplied) - might 
argue for a narrower interpretation. But the terms of an isolated provision must 
be subordinated to the overriding legislative intent. In any event I do not think 
that this is sufficient evidence to establish the proposition that the Legislature 
intended to discriminate between veterans' widows in otherwise identical 
circumstances merely on the basis of the date of their husbands' deaths. 



P.D. 12 55 

To summarize, I am of the opinion that the widow's allowance depends on 
the amount which would have been payable to her husband on the date of his 
retirement if he had lived to October 17, 1968. Under St. 1968, c. 700, § 2, the 
amount which would have been so payable must be adjusted to comply with the 
newly established pension rate of 72%. Accordingly, an adjustment must be 
made in the amount payable to the widow. 

The class of cases described in part 2 of your question involves additional 
complications. Here the veteran, though entitled to retire, died before actually 
doing so and before electing to provide an allowance for his widow under G.L. c. 
32, § 58B. The third paragraph of that section is relevant to cases of this kind: 

"If a veteran entitled to be retired under the provisions of section 
fifty -eight dies before making written application for such 
retirement, or, having exercised the option provided by this section, 
dies before the effective date of his retirement, his widow shall 
receive an annual allowance consisting of two thirds of the actuarial 
equivalent to which said veteran would have been entitled had his 
retirement allowance been computed under the provisions of this 
section as of the date of death of said veteran, and payable from the 
same source; provided that said widow and the deceased veteran 
were living together at the time of his death, or that the retiring 
authority finds that they had been living apart from justifiable cause 
other than desertion or moral turpitude on the part of the widow." 
(Emphasis supplied.) 

For purposes of your question, I read the foregoing provision as saying, in 
effect, that the widow of a veteran eligible for retirement who dies before 
applying therefor and before exercising the option under § 58B shall be treated 
as if her husband had lived long enough to exercise the option and to retire. As 
previously indicated, the widow would be entitled to an adjustment in her 
allowance, pursuant to St. 1968, c. 700, § 2, if her husband's retirement and his 
exercise of the option had preceded his death — even if she was widowed before 
the effective date of the 1968 statute. Thus, the widow described in part 2 of 
your question, like the widow described in part 1, is entitled to the adjustment. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 1 4. October 2 1 , 1 968 

DR. FRANCIS X. GUINDON, Director 

Division of State Colleges 

50 Franklin Street 

Boston, Massachusetts 021 10 

Dear Doctor Guindon: 

You have requested my opinion on whether the Board of Trustees of State 
Colleges (the "Trustees") may authorize the expenditure of $10,000 for a 
program of educational stipends for a group of students at Boston State College 
from certain funds appropriated to the Trustees. 

Your letter indicates that the proposed expenditure "arises from the need to 
provide additional subsidy to some ten to fifteen disadvantaged students who on 
the basis of a ten-week workshop held this summer had been admitted as 



56 P.D. 12 

full-time regular students to Boston State College." As I understand it, this 
program is an experiment designed to assist students who, because of the 
extreme cultural and economic handicaps of the urban ghetto environment in 
which they have been living, would not otherwise have any opportunity for a 
college education. 

The program as a whole involves forty-seven such students who were selected 
from a larger group by a faculty team from Boston State College on the basis of 
college potential. The summer workshop referred to was the first stage of this 
program, and was financed by a self-replenishing fund available for the purpose. 
See St. 1968, c. 380, § 2, Item 7107-0001. Since this phase of the program was 
conducted on a part-time basis, the participating students were able to continue 
working at their jobs and thereby support themselves without interfering with 
their studies. 

This is no longer the case. Having become full-time freshmen at Boston State 
College, these students must now devote much more time to their studies and 
cannot hold full-time outside jobs without defeating the purpose of the program. 
You report that through scholarships and existing student-aid programs, most of 
these students can afford to continue at the College. You state, however, that 
the remaining ten or fifteen of them, some of whom have dependents, cannot do 
so without an additional subsidy to defray living expenses. 

Accordingly, the Trustees have voted to authorize a $10,000 stipend to assist 
the latter group of students with their living expenses for the fall semester, with 
the expectation of authorizing a similar expenditure for the spring semester. 
These funds would be disbursed to the students by the President of Boston State 
College in varying amounts on the basis of individual need, using much the same 
criteria as those prescribed by certain educational aid programs sponsored by the 
Federal Government. You indicate that the Trustees adopted this course of 
action only after exploring all other possible solutions to the problem and 
satisfying themselves that there was no presently available alternative. 

In submitting their request for this expenditure to the Comptroller, the 
Trustees directed that it be charged against the general operations account of 
Boston State College, to which over four million dollars had been appropriated 
in the Budget for the 1969 Fiscal Year (St. 1968, c. 380, § 2, Item 7108-0000). 
The Comptroller, however, has refused to certify the expenditure, stating that it 
is not a proper charge against this account. You have asked me to determine the 
correctness of the Comptroller's ruling. 

I regret to advise you that in my opinion the Legislature did not intend that 
this account be charged for the proposed expenditure. In so advising you I do 
not deprecate in any way the social desirability of the proposed stipends. 
Rather, I have assumed, for purposes of this opinion, that the Trustees are 
correct in treating this expenditure as necessary to meet a social and educational 
need of the highest priority. Nor do I believe there is any constitutional obstacle 
to the use of public funds for this purpose. 

This opinion is therefore addressed exclusively to the narrow question of 
whether the Legislature has in fact authorized the Trustees to use funds from the 
particular appropriation in question (Item 7108-0000 of the 1969 Budget) for 
the proposed program of educational stipends. 

It is fundamental that the Trustees may exercise only such powers as the 
Legislature has conferred upon them. It is equally fundamental that the exercise 
of any power involving the expenditure of funds from the State Treasury is 



P.D. 12 57 

conditional upon the existence of an appropriation for that purpose at the time 
the expenditure is to be made. See G.L. c. 29, §§ 26, 27. These two basic 
propositions supply the framework for my answer to the question at hand. 

1. AUTHORITY TO GRANT STIPENDS 
APART FROM THE BUDGET FOR THE CURRENT FISCAL YEAR 

The Board of Trustees of State Colleges is established as an agency within the 
Department of Education by G.L. c. 15, § 20A, and is given broad powers over 
the state colleges by G.L. c. 73. There clearly is no provision in c. 73 or 
elsewhere in the General Laws, however, whereby the Trustees are given express 
authority to grant the proposed stipends. 

In my opinion, it is equally evident that there are no general statutory 
provisions from which such authority may justifiably be inferred. 

You point out in your letter that "the granting of such stipends is a 
customary prerogative of boards of trustees of institutions of higher education." 
The state colleges (including Boston State College) are, of course, institutions of 
higher education which "provide a major emphasis on the preparation of 
teachers and other professional educational personnel." G.L. c. 73, § 1. But, 
while G.L. c. 73, § 1, prior to 1965, gave the Trustees "all the authority, 
responsibility, rights, privileges, powers and duties customarily and traditionally 
exercised by governing boards of institutions of higher learning," this provision 
was stricken from § 1 by St. 1965, c. 572, § 18. 

The 1965 statute also created the Board of Higher Education and gave it 
ultimate control over certain areas of educational policy. Thus, under G.L. c. 15, 
§ ID, inserted by St. 1965, c. 572, § 2, the stated purpose of the Board of 
Higher Education is "to support, facilitate, and delineate functions and programs 
for public institutions or of higher education in the commonwealth segments of 
such institutions, to allocate to them the responsibility and autonomy to 
discharge such functions and programs, and to plan and develop efficient and 
effective coordination among them . . . ." There follows in the same statute a 
long list of powers conferred upon the Board of Higher Education, the first of 
which is to "promote the best interests of all public higher education throughout 
the commonweatlh." In this manner, the Trustees, though continuing to 
perform a vital function in the structure of Massachusetts higher education, have 
in some respects been subordinated to the Board of Higher Education, thereby 
somewhat narrowing the scope of the independent powers of the Trustees which 
might otherwise be inferable from the broad language of G.L. c. 73. 

Evidence of such a legislative intent to restrict the scope of the Trustees' 
implied powers in the area of student aid programs lies in the fact that the Board 
of Higher Education, not the Trustees, has been specifically charged with the 
administration of many programs for providing financial aid to needy students. 
Under G.L. c. 15, § ID, the Board administers three different scholarship 
programs: one for students "enrolled in and pursuing a program of higher 
education," another for those pursuing "a course of study in medicine, dentistry 
or nursing" and still another for awarding a limited number of "merit 
scholarships." In addition, the Board of Higher Education is authorized by G.L. 
c. 69, § 7D to award "special education scholarships ... to graduates of high 
schools within the commonwealth who qualify for entrance to a public or 
private college or university in courses in the field of education . . . ." The latter 



58 P.D. 12 

provision is particularly significant in that it extends the authority of the Board 
of Higher Education even to scholarships for students in the state colleges. 1 

Thus, although the Trustees are largely autonomous in their administration of 
the state colleges, the Legislature has seen fit to vest most of the authority over 
scholarships in the Board of Higher Education and to assign the Trustees a 
relatively minor role in this particular area. The specificity of these grants of 
power, moreover, discloses a legislative pattern of providing for student-aid 
programs only by express statutory enactment. 2 

Therefore, apart from the 1969 Budget, I find no express or implied power in 
the Trustees to authorize the expenditure of $10,000 for the program of 
educational stipends here in question. 

2. AVAILABILITY OF FUNDS FOR STIPENDS 
FROM ITEM 7108-0000 

Turning, then, to the 1969 Budget, by which the Legislature could, if it so 
wished, have authorized as well as funded the proposed student stipend program, 
I find no indication that it intended to do either. 

The appropriation in question is Item 7108-0000 of the Budget for the 1969 
Fiscal Year (St. 1968, c. 380), one of many appropriations made to the Trustees 
"[f] or the administration, maintenance of and for certain improvements at state 
colleges and the boarding halls attached thereto . . . with the approval of the 
board of trustees." Subject to these limitations, Item 7108-0000 appropriates 
$4,323,680 for "State College at Boston, including not more than three hundred 
and seventy-nine permanent positions." 

This appropriation, like any appropriation, is a legislative enactment entitled 
to statutory force and effect, and the funds therein may be used only for 
purposes falling within the scope of the appropriation. The precise question, 
then, is whether the "administration" and "maintenance" of Boston State 
College include the granting of stipends to its students. 

It has already been noted that so far as the General Laws are concerned, the 
Legislature has followed a practice of establishing programs for student aid by 
express statutory language. The same is true of appropriations to educational 
agencies. For example, the Legislature, under Item 7108-9704 of the 1969 
Budget, appropriated $75,000 for use by the Trustees at Boston State College 
"[f]or the commonwealth's contribution toward the national defense education 
act loan program and the office of economic opportunity student work 
program." A similar appropriation relative to these federally-sponsored student- 
aid programs was made for each of the other state colleges (see St. 1968, c. 380, 
§ 2, Items, 7109-9704, 7110-9704, 7111-9704, 7112-9704, 7113-9704, 

'There is an exception under G.L. c. 69. § 71) for scholarships to Fitchburg State College. 
Scholarships to that College are specially covered by G.L. c. 69, § 7C, which provides 
that they shall be recommended by its president and approved by the Board of Educa- 
tion (as distinguished from the board of Higher Education). Yet § 7C makes no reference 
to the Trustees of State Colleges, whose sole responsibility in this regard appears to be to 
act as a conduit of funds appropriated for such scholarships. See St. 1968, c. 380, § 2, 
Item 71 10-9704. 

2 VVhile I have found no express provision in the General Laws which authorizes a program 
of educational stipends in the $10,000 amount proposed, G.L. c. 73, § 5 appears to 
authorize (subject to appropriation) such a program in a lesser amount: 

•The trustees may annually expend, in semiannual payments, not more than 
four thousand dollars in aiding students in state colleges." (Emphasis supplied.) 



P.D. 12 59 

71 14-9704, 71 15-9704, 71 16-9704, 71 17-9704) - despite the fact that a general 
operations appropriation was made for each state college in terms similar to Item 
7108-0000 (see St. 1968, c. 380, § 2, Items 7109-0000, 71 10-0000, 71 1 1-0000, 
7112-0000, 7113-0000, 7114-0000, 7115-0000, 7116-0000, 7117-0000). In the 
case of Fitchburg State College, which is authorized to award "special education 
scholarships" by G.L. c. 69, § 7C, a specific appropriation is made to the 
Trustees "for not more than one hundred scholarships, as authorized by [G.L. c. 
69, § 7C] ." St. 1968, c. 380, § 2, Item 71 10-9407. 

Until 1967, moreover, the Legislature had made a practice of including in its 
annual budgets specific appropriations of $4,000 to the Trustees " [f] or aid to 
certain pupils in state colleges, under the direction of the board of trustees." 
See, for example, St. 1966, c. 411, § 2, Item 1329-03. 3 Yet this appropriation 
(which is conspicuous by its absence from the 1968 and 1969 Budgets) 
customarily appeared side by side with a general operations appropriation for 
each of the state colleges identical in all material respects to Item 7108-0000 of 
the 1969 Budget. See, for example, St. 1966, c. 411, § 2, Items 1330-01, 
1331-01, 1332-01, 1333-01, 1334-01, 1335-01, 1336-01, 1337-01, 1338-01. 

The same degree of particularity is demonstrated in the appropriations made 
to the Board of Higher Education under St. 1968, c. 380 for the scholarship 
programs administered by that agency. Here the Legislature has not only 
specified that the appropriated funds are to be used for such scholarships, but 
has made separate appropriations for each individual scholarship program. Thus, 
$250,000 has been appropriated to the Board "[f] or medical, dental and nursing 
scholarships, as authorized by [G.L. c. 15, § ID]" (Item 7070-0005); 
$2,000,000 has been appropriated "[f]or general scholarships, as authorized by 
[G.L. c. 15, § ID] " (Item 7070-0006); $15,000 has been appropriated "[f]or 
special educational scholarships, authorized by [G.L. c. 69, § 7D] " (Item 
7070-0007) and $32,000 has been appropriated "[f]or merit scholarships, as 
authorized by [G.L. c. 15, § ID] " (Item 7070-0014). 

It is even more significant, in my opinion, that the Trustees of the University 
of Massachusetts received an appropriation in the 1969 Supplementary Budget 
of $150,000 "[f]or a program of assistance for students from various racial 
backgrounds in disadvantaged environments, including but not limited to negro 
students; provided, that expenditures may be made for, but not limited to, 
scholarships, loans, matching federal and private grants, tutorial assistance and 
programs of cultural enrichment." St. 1968, c. 771, Item 7411-2000. The 
powers of the Trustees of the University of Massachusetts, under G.L. c. 75, are 
at least as broad as (if indeed, not broader than) those of the Trustees of State 
Colleges, many of them being conferred by identical statutory language. And the 
University received a general maintenance appropriation similar to those received 
by the state colleges. St. 1968, c. 380, § 2, Item 7410-0000. Yet the Legislature 
made a specific appropriation to the University for what appears to be a program 
closely similar to the one contemplated by the Board of Trustees of State 
Colleges. 



73, § 5, whereby the Trustees are authorized, subject to appropriation, to spend up to 
$4,000 annually "in aiding students in state colleges." The omission of any comparable 
appropriation in the current Budget suggests that the Legislature did not intend to make 
funds available to the Trustees for student aid under G.L. c. 73, § 5. Furthermore, even if 
the Legislature had intended to incorporate an appropriation for use under G.L. c. 73, § 5 
within some larger account, it seems unlikely that it would have selected for this purpose 
an account (such as Item 7108-0000) whereby funds are appropriated for use at a single 
state college rather than the state colleges generally. 



60 P.D. 12 

We discern here a clear and consistent pattern whereby the Legislature has 
provided funds for each student-aid program on an individual basis, in some 
instances prescribing the uses of those funds in considerable detail. In doing so, 
the Legislature has, I think, manifested an intention to reserve to itself all major 
decisions on the nature and extent of scholarship and other student-aid 
programs. It has, in effect, carved out an exception to the largely autonomous 
status which it has conferred upon bodies like the Trustees of State Colleges. 

In the light of this legislative pattern, my conclusion that Item 7108-0000 
was not intended to include funds for the proposed stipend program is 
strenghtened by the fact (reported by you and by the Fiscal Affairs Division) 
that the Trustees did not request funds for this or any similar program in the 
budgetary estimates they submitted for the current Fiscal Year. The Legislature 
therefore had no proposal for such a program before it when it included Item 
7108-0000 in the 1969 Budget. This being the case, it is highly unlikely, in the 
light of the legislative pattern heretofore described, that the Legislature intended 
to appropriate funds from this account for this purpose. 

In summary, then, all the available evidence, considered together, points to 
the conclusion that the Legislature did not intend Item 7108-0000 to include 
expenditures for a student stipend program of this nature. 

3. THE EFFECT OF THE EXPENDITURE CODE 
MANUAL AND OF FISCAL AUTONOMY 

The foregoing conclusion is not altered by the two further factors relied upon 
in your letter as possible sources of the Trustees' authority to expend funds 
from Item 7108-0000 for educational stipends. The first of these is the fact that 
such stipends are recognized as possible objects of expenditure in the 
Expenditure Code Manual published at the direction of the Joint Committee on 
Ways and Means in accordance with G.L. c. 29, § 27. The second is the 
considerable measure of fiscal autonomy enjoyed by the Trustees under G.L. c. 
73, § 12. 

As to the first of these, you have called my attention to the schedule of 
"subsidiary accounts" relating to appropriation Item 7108-0000 which is on file 
with the Joint Committee on Ways and Means pursuant to G.L. c. 29, § 27, and 
to the allocation therein of $150,000 to Subsidiary Account 13. Subsidiary 
Account 13 is captioned on page 10 of the Expenditure Code Manual as "Special 
Supplies and Expenses." There follows a long and varied list of object 
codes - i.e., possible purposes for which funds in this account may be spent, if 
otherwise authorized, with a code number identifying each. Object Code 655, 
appearing on page 1 1 of the Manual, provides: 

"Tuition, Educational Stipend and Supplies: 

"Includes expenditures for tuition, educational stipend and 
supplies, textbooks and periodicals for teachers and pupils and all 
supplies for educational purposes." (Emphasis supplied.) 

But this does not mean that all appropriated funds allocated to Subsidiary 
Account 13 are available for the purposes described in Object Code 655, or that 
funds allocated to Object Code 655 can necessarily be expended for all the 
purposes set forth therein. On the contrary, these educationally oriented types 
of expenditures are grouped under Object Code 655, and Object Code 655 is 
included under Subsidiary Account 13, merely for administrative convenience in 
the classification and control of expenditures. That is, if and when authorized by 



P.D. 12 61 

the Legislature, expenditures for educational stipends would be assigned to 
Subsidiary Account 13 and Object Code 655 for accounting purposes. 4 

Whether a given object code is pertinent to a particular appropriation always 
depends in the final analysis on the scope of the appropriation itself. For the 
reasons already stated, I do not think that the Legislature intended the funds in 
Item 7108-0000 to be available for the payment of the educational stipends here 
in question. 

For similar reasons, I do not believe that the degree of fiscal autonomy which 
the Legislature has conferred upon the Trustees can be successfully relied upon 
here. General Laws c. 73, § 12 authorizes the Trustees, among other things, to 
transfer appropriated funds "within and among subsidiary accounts" without 
obtaining the approval of the Budget Director which G.L. c. 29, § 29 requires of 
most state agencies. 5 But funds so transferred may still be used only for 
purposes falling within the scope of the general appropriation within which the 
transfer is made -in this case, Item 7108-0000. As previously indicated, the 
payment of the proposed educational stipends is not among the purposes for 
which funds from Item 7108-0000 may be spent. 

It should be noted in this connection that the Trustees of the University of 
Massachusetts are also granted fiscal autonomy by a statute almost identical to 
G.L. c. 73, § 12. 6 Yet the Legislature apparently deemed it necessary to give the 
University the specific appropriation previously referred to " f fj or a program of 
assistance for students ... in disadvantaged circumstances . . . ." St. 1968, c. 
771, Item 741 1-2000. 

In short, neither the terms of Object Code 655 in the Expenditure Code 
Manual nor the degree of fiscal autonomy given by G.L. c. 73, § 12 can alter the 
fact that the proposed expenditure of $10,000 for this program of educational 
stipends is outside the intended scope of Item 7108-0000 of the 1969 Budget. It 
is therefore my opinion that the Trustees may not authorize the proposed 
payment of such stipends to students at Boston State College from this account. 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttornev General 



Subsidiary Account 1 3 also embraces such expenditures as those "for all fish and game 
propagation supplies for stocking streams and forests" (Object Code 636, at page 1 1 of the 
Manual), and "for military and police supplies such as revolvers, holsters, rifles, 
ammunition, gas, bombs, cartridges, handcuffs, etc." (Object Code 637, at page 11 of the 
Manual). It could hardly be contended that the Trustees may apply funds appropriated 
under Item 7108-000 to these purposes. 

'The full text of G.L. c. 73, § is as follows: 

"Notwithstanding any other provision of law to the contrary, the general court shall 
annually appropriate such sums as it deems necessary for the maintenance, operation and 
support of each state college; and such appropriations shall be made available to each 
state college by the appropriate state officials for expenditure through allotment, 
transfer within and among subsidiary accounts, advances from the state treasury in 
accordance with the provisions of sections twenty-four, twenty-five and twenty-six of 
chapter twenty-nine, or for disbursement on certification to the state comptroller in 
accordance with the provisions of section eighteen of said chapter twenty-nine as may 
from time to time be directed by the trustees or an officer of the division designated by 
the trustees." 

3 General Laws c. 75, § 8 provides: 

"Notwithstanding any other provision of law to the contrary, the general court shall 
annually appropriate such sums as it deems necessary for the maintenance, operation and 
support of the university; and such appropriations shall be made available by the 
appropriate state officials for expenditure through allotment, transfer within and among 
subsidiary accounts, advances from the state treasury in accordance with the provisions 
of sections twenty-four, twenty-five and twenty-six of chapter twenty-nine, or for 
disbursement on certification to the state comptroller in accordance with the provisions 
of section eighteen of said chapter twenty-nine, as may from time to time be directed by 



62 P.D. 12 

Number 15. October 30, 1968 

HON. CHARLES H. McNAMARA 

Commissioner of Agriculture 
State Office Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner McNamara: 

You have asked my opinion as to whether, upon a request by a certain 
greyhound association (the "Association"), you must notify it of applications to 
you for the certificate of approval (a "Certificate") under G.L. c. 128A, § 3, 
which an applicant for a racing license at a state and/or county fair must submit 
to the State Racing Commission. You also ask whether you must comply with a 
request of the Association that you hold an adjudicatory proceeding under the 
Administrative Procedure Act (G.L. c. 30A) upon each application for a 
Certificate and that you allow the Association to appear, participate and be 
heard. 

For purposes of this opinion, I will assume, without deciding, that the 
application for a Certificate under G.L. c. 128A, § 3 must be determined in an 
adjudicatory proceeding under G.L. c. 30A, § 1(1), since I am of the opinion 
that even in that event the Association has no right to notice or to appear, 
participate or be heard. 1 

Under G.L. c. 128A, § 3, as amended through St. 1967, c. 14, an applicant 
for a license to conduct a horse or dog racing meeting in connection with a state 
or county fair must present to the State Racing Commission a certificate from 
the Commissioner of Agriculture that 

"(1) such fair is a state or county fair as defined in section one, (2) 
such fair has been operating for each of the five consecutive years 
immediately preceding the date of filing such application and had 
received for each of said five consecutive years assistance from the 
agricultural purposes fund, (3) such fair is properly qualified [in 
certain specified respects] , and (4) the location where such racing 
meeting is to be held is annually approved by him and by the board 
of agriculture .... In determining whether a fair is properly 
qualified under this paragraph, the commissioner of agriculture shall 
consider the number of days such fair has operated each previous 
year, the area of the land used for fair purposes, the number of 
entries in agricultural show events in previous years, the number and 
value of prizes offered in such events and whether or not the 
granting of a racing license would tend to promote the agricultural 
purposes of the fair." 

Assuming, then, for the purposes of this opinion only, that a Certificate may 
be issued only after an adjudicatory hearing under G.L. c. 30A (a question, as 
noted earlier, that I do not now decide), the question of whether the Association 
has a right to notice, appearance and participation in such a hearing depends on 
whether the Association is to be regarded as a "party" to the proceeding, within 
the meaning of G.L. c. 30A, § 1(3), which defines a "party to an adjudicatory 
proceeding" as: 

'it is equally clear that if G.L. c. 30A were not applicable, no other provision of law would 
grant to the Association the right to notice, appearance, participation or hearing. 



P.D. 12 63 

"(a) the specifically named persons whose legal rights, duties or 
privileges are being determined in the proceeding; and (b) any other 
person who as a matter of constitutional right or by any provisions 
of the General Laws is entitled to participate fully in the proceeding, 
and who upon notice as required in paragraph (1) of section eleven 
makes an appearance, and (c) any other person allowed by the 
agency to intervene." 

Under G.L. c. 30A, § 1 1(1), only a "party" is entitled to notice of the hearing; 
under G.L. c. 30A, § 10, only a "party" is entitled to "an opportunity for full 
and fair hearing;" and under G.L. c. 30A, § 1 1(3), only a "party" has a "right to 
call and examine witnesses, to introduce exhibits, to cross-examine witnesses 
who testify, and to submit rebuttal evidence." 

Although the exact nature and function of the Association does not appear in 
the information that you have furnished to me, I assume that it is a potential 
competitor of one or more potential applicants for Certificates. Yet even on this 
assumption it does not come within the definition of a "party" in § 1(3) of the 
Administrative Procedure Act quoted above. First, "the specifically named" 
person whose legal rights, duties or privileges are being determined in the 
proceeding to obtain a Certificate is the applicant only. Second, no provision is 
made in the pertinent statute, G.L. c. 128A, § 3, for participation by any person 
other than the applicant. And finally, I am of the opinion that a potential 
competitor of the applicant has no "constitutional right ... to participate ... in 
the proceeding." 2 An application to you for a Certificate is only the first step in 
a longer process that may culminate in the issuance of a license by the State 
Racing Commission. You merely make certain preliminary determinations under 
G.L. c. 128A, § 3, which are related to the agricultural aspects of the proposed 
fair. If your determinations are favorable, they merely enable the applicant to 
take the next step of seeking a license from the State Racing Commission. They 
do not confer any operating right on the applicant nor do they deny or abridge 
rights of any other person. The possibility that the granting of a license to the 
applicant by the State Racing Commission may create possible competition with 
other racing activities is not one of the matters that have been committed to you 
for consideration. Questions as to such competition fall instead within the 
jurisdiction of the State Racing Commissioners who upon an application for a 
racing license must conduct an adjudicatory proceeding. See Bay State Harness 
Horse Racing & Breeding Assn. Inc. v. State Racing Commn., 342 Mass. 694, 
701. The Commissioners may of course allow other persons to intervene in the 
proceeding before them. 

I regard as inapplicable in the present situation such cases as South Shore 
National Bank v. Board of Bank Incorporation, 351 Mass. 363, 367-368, and 
Westland Housing Corp. v. Commissioners of Insurance, 352 Mass. 374, 383-384. 
Each of these cases presented the issue whether the plaintiff had a sufficiently 
direct interest to have standing to seek judicial review of administrative action. 
None of them involved the question of whether the plaintiff was as a matter of 
constitutional right entitled to participate in the hearings of the administrative 
agency. In any event, I regard as more applicable certain cases which have denied 
standing to certain persons who have sought judicial review of administrative 

2 The situation where a person has in fact been permitted to intervene as a party is not pre- 
sented by your request. See G.L. c. 30A, § 10; Wilmington v. Department of Public 
Utilities, 340 Mass. 432, 437. 



64 



P.D. 12 



action. See Circle Lounge & Grill, Inc. v. Board of Appeal of Boston , 324 Mass. 
427, 429-430; Springfield Hotel Assn. Inc. v. Alcoholic Beverages Control 
Commission, 388 Mass. 699, 701; Shaker Community, Inc. v. State Racing 
Commn., 346 Mass. 213, 215-216. 

In summary then, I conclude that the Association has no right to notice of, or 
to appear or participate in, hearings upon applications by other persons for 
Certificates. 

Very truly yours, 
ELLIOT L. RICHARDSON 

A ttorney General 



Number 16. November 1, 1968 

HONORABLE RICHARD E. McLAUGHLIN 

Registrar of Motor Vehicles 

100 Nashua Street 

Boston, Massachusetts 021 14 

Dear General McLaughlin: 

You have requested my opinion on a certain question arising under the 
following provision of G.L. c. 90, § 19: 

"No motor vehicle shall be operated on any way to draw more than 
one trailer or other vehicle without a permit so to operate from the 
department of public works." 

Your question is whether a certain towing device is a "trailer or other vehicle" 
for purposes of the foregoing provision, and hence, whether the use of a motor 
vehicle to tow another vehicle by means of this device would fall within the 
statutory prohibition. 

This device is described in your letter as "T-shaped, and similar in appearance 
to a small boat trailer, although of heavier construction." According to your 
letter, it "permits the towing of another motor vehicle by fitting its two wheels 
under the front or rear wheels of the towed vehicle, leaving the vehicle's other 
two wheels in contact with the ground." 

The general design of this device is best explained by the following 
illustrations, furnished by your staff: 



^^O^ 




h 



The shaft at the front of the device is attached to the rear of the towing vehicle, 
while a hoist at the rear of the device is attached to the towed vehicle in the 
following manner: 



P.D. 12 



65 




I am of the opinion that the device in question is a "trailer" for purposes of 
the above-quoted statutory provision. The word "trailer" is defined in G.L. c. 
90, § 1 to include (with exceptions not here material) "any vehicle or object on 
wheels and having no motive power of its own, but which is drawn by or used in 
combination with, a motor vehicle." This towing device is plainly a "vehicle or 
object on wheels" and otherwise meets all the requirements of the foregoing 
definition. 

Under the terms of G.L. c. 90, § 1, this definition is controlling "unless a 
different meaning is clearly apparent from the language or context, or unless 
such construction is inconsistent with the manifest intention of the legislature 
. ..." I can find nothing in the "language or context" of the statutory provision 
under consideration from which it is "clearly apparent" that the word "trailer" 
is used therein with "a different meaning." Nor, in my view, can this 
construction of the statutory provision be regarded as "inconsistent with the 
manifest intention of the legislature." 

As to the latter point, it has been suggested that this device is nothing more 
than a type of towing hitch, and that the Legislature could never have intended 
to subject it to the severe restrictions applicable to trailers merely because it is 
equipped with two wheels. This argument, of course, rests on the assumption 
that the Legislature could not reasonably have regarded the purpose of these 
restrictions as being served by applying them to a device of this kind. I do not 
think that any such assumption is warranted. 

The statutory provision relative to towing more than a single vehicle was 
inserted in G.L. c. 90, § 19 by St. 1930, c. 297, on the basis of a bill submitted 
by the Department of Public Works (1930 House Doc. No. 59), as a part of that 
Department's annual report to the General Court. The descriptive portion of this 
report (1930 House Doc. No. 56) explained the purposes of the accompanying 
bill as follows: 

"One of the most hazardous features of the operation of motor 
vehicles, with trailers, on the highways, is the use of more than one 
such trailer. Such combinations of vehicles create another element of 
uncertainty in the overtaking and passing by other vehicles, and 
furthermore, it is not believed that the highways should become 
roadways for trains of such vehicles. It is therefore recommended 
that section 19 of chapter 90 of the General Laws, be amended to 
prohibit such operation. 

Since the 1930 statute is identical to the bill submitted by the Department of 
Public Works, the stated purpose of the Department in filing the bill must be 
ascribed to the Legislature in enacting it. Thus, this legislation was partly aimed 
at eliminating a potential "element of uncertainty in the overtaking and passing 



66 P.D. 12 

by other vehicles." 

Whether the use of this device in a towing operation would in fact "create 
another element of uncertainty in the overtaking and passing by other vehicles" 
is a matter of engineering judgment on which I do not feel qualified to express 
opinion. But that is not the issue in any event. The real issue is whether the 
Legislature could reasonably have believed that the use of such a device might 
have this effect. The answer lies in the fact that several experts at the Registry of 
Motor Vehicle| and Department of Public Works contacted by my staff think 
that it would. The very existence of such expert opinion tends to undermine 
any contention that the Legislature could not reasonably have intended to 
classify this towing device as a "trailer" for purposes of G.L. c. 90, § 19. This 
being the case, there is no basis for inferring that the application to § 19 of the 
definition of "trailer" in § 1 would be "inconsistent with the manifest intention 
of the legislature." The definition in § 1 must therefore control. 

Accordingly, it is my opinion that in the absence of a permit from the 
Department of Public Works, G.L. c. 90, § 19 prohibits the use of this device, in 
combination with a motor vehicle, to tow another vehicle on any way of the 
Commonwealth. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 17. November 1, 1968 

HONORABLE ROBERT F. OTT 

Commissioner of Public Welfare 
600 Washington Street 
Boston, Massachusetts 021 1 1 

Dear Commissioner Ott: 

You have requested my opinion as to whether liens previously imposed under 
G.L. c. 118A, § 4 by cities and towns on real estate of welfare recipients have 
survived the Welfare Reorganization Act of 1967, St. 1967, c. 658, which 
became effective on July 1, 1968. Specifically, you ask: 

"1. Are those liens recorded in accordance with the provisions of 
General Laws Chapter 118A section 4 as inserted by Chapter 
801 of the Acts of 1951 and from time to time amended, now 
enforceable? 

2. If the answer to question number 1 is in the affirmative, under 
what provision of law and by what procedure? 

3. If the answer to question number 1 is in the negative, how may 
such liens be released in order to clear the title? 



*These experts believe that the use of such a towing device might well present special prob- 
lems of braking and handling, would tend to increase the circumference of the path taken 
by the towing combination on curves, and would increase the danger of one of the vehicles 
breaking away from the towing combination. Any one of these factors would obviously 
"create another element of uncertainty in the overtaking and passing by other vehicles." 



P.D. 12 67 

4. Prior to July 1, 1968, under appropriate conditions, such liens 
were released by an instrument signed by the local board of 
public welfare or a person designated by such board and 
recorded in the proper registry. 

Section 79 of the before referred to Chapter 658 contains 
the provision: 

'All powers and duties exercised by such boards and offices 
are hereby transferred to the state department of public 
welfare' 

Would the signing of such a release or discharge be considered 
such a power or duty and may such a function be performed 
by a person or persons designated by the Commissioner? 

5. If the answer to number 4 is in the negative, by whom should 
such a release be signed?" 

Prior to its amendment in 1967, G.L. c. 1 18A, § 4 directed a municipality to 
take a lien on certain real estate of recipients of old age assistance as a condition 
of granting such assistance to them. Section 4 also provided that the lien was to 
be recorded in the appropriate registry of deeds and was to be enforceable by a 
bill in equity with the consent of the Department of Public Welfare, "upon the 
death of the recipient [unless his wife continued to reside on the property] or 
his otherwise ceasing to receive old age assistance from it." The lien was not 
enforceable however when the combined value of the recipient's real estate at 
the time of his death, together with the cash surrender value of certain life 
insurance, did not exceed $1500. Proceeds above an exempt portion realized 
from the enforcement of a lien were to be apportioned among the Federal 
government, the Commonwealth and the city or town furnishing the old age 
assistance in proportion to their respective contributions up to the amount 
contributed. Upon a voluntary sale of the real estate by a welfare recipient, the 
proceeds above a certain exempt amount were also applied in satisfaction of the 
Uen. 

The Welfare Reorganization Act of 1967 made a comprehensive revision of 
the Commonwealth's public welfare structure. 1 Although its essential feature 
was the transfer to the Commonwealth of the public welfare functions 
previously assigned to the cities and towns, many other changes in the welfare 
statutes were also made. Among them was the following: 

"Section 39. Said chapter 118A is hereby further amended by 
striking out section 4 and inserting in place thereof the following 
section: 

"Section 4 

The ownership in vacant land from which no income is derived, 
or the ownership of an interest in real estate by an applicant who 
resides thereon or who, in the opinion of the department, is residing 
elsewhere than on such real estate because of physical or mental 
incapacity, shall not disqualify him from receiving assistance under 
this chapter." 



On the background of the Act, see "Meeting the Problems of People in Massachusetts, 
National Study Service (1966). 



68 P.D. 12 

None of the provisions in old § 4 relative to liens were retained. 

The elimination of the provisions for old age assistance liens by the drastically 
revised provisions of the new § 4 manifests a strong legislative policy against the 
retention of such liens. Standing by itself in the light of this background, the 
new § 4 would accordingly have the effect of abolishing all liens, whatever the 
state of their enforcement might be on July 1, 1968. Wilson v. Head, 184 Mass. 
5 1 5 ; Pittsley v. David, 298 Mass. 552. To be distinguished are cases where an old 
law is regarded as remaining in force as to pre-existing rights when a repealing act 
substantially retains the former provisions. United Hebrew Benevolent Associa- 
tion v. Benshimol, 130 Mass. 325, 327; McAdam v. Federal Mutual Liability 
Insurance Co., 288 Mass. 537, 541. The present situation also differs from cases 
such as Manchester v. Popkin, 237 Mass. 434, and Frank Kumin Co. Inc. v. 
Marean, 283 Mass. 332, 335, where a construction which would treat 
outstanding rights under an earlier statute as eliminated by a later statute would 
raise serious constitutional questions. However, where no vested rights are 
involved - and, as indicated below, I believe that none are involved here - such 
an obstacle to a total replacement of the earlier version is not present. 

It is clear that the Legislature was not required to preserve existing old-age 
assistance liens. Since the Legislature originally created them for the benefit of 
cities and towns in their public as distinct from their private capacity, the liens 
remained subject to legislative control and were subject to transfer by the 
Legislature to some other agency of government charged with the same duties or 
they could have been devoted to other public purposes without the payment of 
compensation. Higginson v. Treasurer etc. of Boston, 212 Mass. 583, 585; 
Worcester v. Commonwealth, 345 Mass. 99, 100. I believe that it is equally true 
that if the Legislature considers it in the public interest to abolish by a statute of 
general application a certain class of municipal property rights created by statute 
and held in a public capacity, such as the right involved here, it may lawfully do 
so. See Opinion of the Justices, 1968 Mass. Adv. Sh. 1099. Cases which have 
held that the rights of private parties to existing liens under contracts may not 
be disturbed by subsequent legislation must be sharply distinguished. See 
Manchester v. Popkin, 237 Mass. 434, 436-437. 

In summary, then, if § 4 of the new Act stood alone, all existing old-age 
assistance liens whether or not in the process of enforcement would have been 
abolished on July 1, 1968. However, § 4 was not enacted in isolation. Section 
80 of the new Act provided: 

"All petitions, applications, hearings and other proceedings duly 
pending before, and all prosecutions and legal and other proceedings 
duly begun by, any city or town board or office abolished by this 
act or before or by any member, officer or employee thereof, shall 
continue unabated and remain in full force and effect notwithstand- 
ing passage of this act, and may be completed before or by the 
department of public welfare." 

It is my opinion that the foregoing section has kept in force all judicial 
proceedings begun before July 1, 1968 to enforce liens previously taken by cities 
and towns under former § 4 of G.L. c. 118. These proceedings may, in my 
judgment, still be maintained according to the procedure set forth in former § 4 
but the Department of Public Welfare should by motion in each case be 
substituted as the plaintiff. Distribution of any proceeds realized in such 
proceedings should be made in the manner and proportions provided in the 
former section. 



P.D. 12 69 

Although § 80 of the new Act thus preserves those liens which were in the 
process of judicial enforcement on July 1, 1968, it is not, however, broad 
enough to preserve liens which were not on that date the subject of a petition or 
bill in equity already filed in the Superior Court or in an appropriate Probate 
Court. Liens with respect to which no petition or bill had been filed were, as 
already stated, abolished by force of the new § 4 of G.L. c. 1 18A. 

I find nothing in the new § 4A of G.L. c. 118A which alters the foregoing 
conclusions. Section 4A in both its old and new versions imposes a personal 
unsecured obligation, with certain limitations, on each old-age welfare recipient 
for old age assistance payments made to him under G.L. c. 1 18A. Section 4A has 
always been separate from § 4. City ofMedfordv. Quinn, 352 Mass. 42, 44-45; 
City of New Bedford v. Bender, 345 Mass. 544. Haverhill v. Porter, 333 Mass. 
594, 598. Each section has a different statutory background, § 4 dating back to 
St. 1951, c. 801 (amending St. 1936, c. 436, § 1) while § 4A goes back to St. 
1941, c. 729, § 5. See City of Worcester v. Quinn, 304 Mass. 276, decided in 
1939, and holding that § 4 created no personal liability on the part of a 
recipient of old age assistance payments to reimburse a municipality therefor. It 
is likely that § 4A was inserted in 1941 to impose such liability. Further, there 
is nothing to indicate that a lien taken under § 4 stood as security for the 
statutory cause of action created by § 4A. 

I have not overlooked the sentence in the new § 4A winch provides: "The 
commonwealth shall succeed to and shall have all rights of enforcement of any 
causes of action which shall have accrued to any city or town for or on account 
of any payments made by a city or town under this chapter." Since this sentence 
is embodied in § 4A (which, as already stated, created a distinct statutory cause 
of action different from the statutory lien taken under old § 4), it is in my 
judgment applicable only to rights of enforcement of causes of action which 
have accrued under § 4A, not to rights of enforcement of liens that may have 
been taken under § 4. The reference to "this chapter" modifies only "payments 
made by a city or town," and does not modify "causes of action." The latter 
term thus cannot be regarded as including causes of action under the lien 
provisions of old § 4. 

To summarize then, my conclusions to this point, I answer your first question 
by stating that the liens are still enforceable only if a petition or bill in equity 
for enforcement had been filed in court before July 1, 1968. I answer your 
second question by stating that the procedure for enforcement is governed by 
G.L. c. 1 18A, § 4 as it stood just prior to St. 1967, c. 658. The Commonwealth 
should by motion, however, be substituted as the plaintiff in each case. 

I now turn to your third question in which you ask: "If the answer to 
question number 1 is in the negative, how may such liens be released in order to 
clear the title?" In view of my answer to question 1 , I will construe your third 
question as concerned only with those liens as to which no judicial proceedings 
for enforcement had been begun prior to July 1, 1968. 

Under G.L. c. 1 18A, § 4 as it stood prior to July 1, 1968, the only provision 
for release of liens was that "Upon reimbursement for the amount due under the 
terms of [the] lien, the town through its appropriate official shall execute and 
deliver a satisfaction thereof, and upon it being filed, the lien shall be dissolved 
as of the date of such filing." Although not expressly stated, it would also 
appear that a town official could release a lien upon the existence of 
circumstances, described in old § 4, such as when a deceased welfare recipient's 
interest in real estate together with the cash surrender value of certain insurance 



70 P.D. 12 

policies did not exceed $1500. Determination of the identity of the "appropri- 
ate official" of a municipality to release a lien under old § 4 would depend on 
an examination of the internal structure of particular cities and towns. You 
state, however, that the releases were signed by "the local board of public 
welfare or a person designated by such board." Authority to sign such releases 
was, in my judgment, transferred to the Department of Public Welfare, to be 
exercised by an appropriate official thereof, by virtue of St. 1967, c. 685, § 79, 
which provides in pertinent part: "All powers and duties exercised by 
[municipal] boards and offices [of public welfare] are hereby transferred to the 
state department of public welfare." Determination of the state official or 
employee who may now sign such a release is a matter within the authority of 
the Commissioner of Public Welfare. G.L. c. 18, § 3. 

I trust that the foregoing answers your questions 3 and 4. In the light of my 
answer to question 4, question 5 does not require an answer. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 18. November 15, 1968 

HONORABLE GEORGE A. LUCIANO 

State Superintendent of Buildings 
State Office Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Luciano: 

You have asked for my opinion on the authority of municipal police officers 
to maintain order and enforce the criminal law on state property, upon request 
of an appropriate state official. Your letter states: 

"The General Laws impose the responsibility upon me of 
protecting certain properties which are under the control of the 
Commonwealth. In addition to buildings owned by the Common- 
wealth, these properties include, without limitation, any municipally 
owned or privately owned building which is leased in its entirety to 
the Commonwealth for public offices, as well as any part of a 
municipally or privately owned building which is leased to the 
Commonwealth for public offices. 

"In the past I have called upon municipal police departments for 
assistance in providing the ordinary policing necessary to protect 
adequately these properties under the control of the Common- 
wealth. Our cities and towns are to be commended for their 
cooperation in this regard. 

"In order that this high degree of cooperation may be main- 
tained, it is necessary that the following question be resolved: 

'Does the power and authority of a municipal police officer 
extend to the maintenance of order and enforcement of the 
criminal law of the Commonwealth while on property con- 
trolled by the Commonwealth within the geographical limits 
of his employing municipality, when he is on such property 
pursuant to assignment by his local police department in 



P.D. 12 71 

response to a request by me or by the official having charge of 
such property?' 

"By way of illustration, municipal police authorities from time to 
time might be asked to provide officers on detail for assistance in 
safeguarding persons and property in the State Office Building at 
Springfield, and various local offices operated by the Department of 
Public Welfare, and for assistance in protecting visiting dignitaries at 
the State House in Boston. 

"In responding to the above question, it would be of great value 
if you specifically treated the effect, if any, of G.L. c. 8, § 12, upon 
your opinion." 

Your question is posed in general terms. While it may be appropriate in most 
cases to decline to answer questions so framed, we deem this occasion an 
appropriate exception to that rule. The matter directly involves your present 
statutory duties and is susceptible of a reasonably specific answer. 

The subject matter of your request has not, it seems, been treated in any 
opinion of the Supreme Judicial Court. It has however been considered in prior 
opinions of Attorneys General which will be referred to below in this opinion. 

It may be useful at this point to restate certain general principles of law. 
Ordinarily, the authority of local police to protect life and property and 
maintain the peace extends to all property located within the municipality of 
the officer's appointment. Joyce v. Parkhurst, 150 Mass. 243, 246. As recently 
stated in Thurlow v. Crossman, 336 Mass. 248, 250, 

"Lawful entry [by police officers] may be made 'to save goods 
which are in jeopardy of being lost or destroyed by water, fire or 
any like danger' [citation] , to prevent the spread of fire [citation] , 
and to make arrests [citation] . A police officer who enters upon 
private premises in good faith in the performance of his official duty 
to protect life and property and to preserve the peace is not a 
trespasser." 

See also Commonwealth v. Murphy, 1968 Mass. Adv. Sh. 1, 5. And while, apart 
from "fresh pursuit" (see G.L. c. 41, § 98A, as amended through St. 1967, c. 
263), the power of a municipal police officer to make an arrest without a 
warrant is limited at common law to the territory of his own municipality, his 
power to execute a warrant of arrest or commitment is statewide. Common- 
wealth v. Martin, 98 Mass. 4; G.L. c. 279, § 38; c. 41, §§ 95 and 98. Certain 
broad territorial powers are also conferred on municipal police officers by c. 41, 
§ 99 and by the Civil Defense Act. St. 1950, c. 639, § 1 1, as amended. 

The foregoing examples are only some of the instances of the exercise by 
local police of concurrent jurisdiction with other police forces. The statutes 
relating to the State Police furnish another example of the exercise of such 
jurisdiction. By St. 1921, c. 461, now appearing as amended in G.L. c. 22, § 9A, 
the State Police were given concurrent jurisdiction with local police over all 
offenses. This grant was based on legislative reports which found that such 
jurisdiction, rather than being detrimental, would in fact contribute to the 
public safety. Report of the Adjutant General and the Commissioner of Public 
Safety on the Establishment of a State Police Force, 1921 House Doc. No. 280; 
Report of the Special Commission on Constabulary and State Police, 1917 
House Doc. No. 539. 



72 P.D. 12 

I consider that the above materials both establish the general principle of a 
broad grant of police power within the geographic limits of a municipality and 
eliminate any conceptual barriers to overlapping police jurisdiction based on 
abstract notions of state "sovereignty." They do not support any proposition 
that under either the common law or statutes municipal control of premises 
within a municipality is necessary for the exercise of local police jurisdiction 
thereon. Nothing in the above materials carves out any exception for state 
property as an exempt enclave. Further, the activities of local police considered 
here do not involve any conflict between state and municipal authorities. 
Activities of local police in preserving the public peace on Commonwealth 
property do not in any way involve the imposition of local law upon the 
supreme sovereign. On the contrary, they are simply a means whereby the law of 
the supreme sovereign can be enforced on its ov/n premises. Thus, far from 
impeding the operations of the Commonwealth, such action by local police 
should plainly facilitate them. See Commonwealth v. Biddiscombe, 347 Mass. 
427; Op. Atty. Gen. No. 68/69-3. Thus, I see no reason to conclude that, as a 
general proposition, the leasing or purchase of a building by the Commonwealth 
removes that building from the area in which local police may exericse their 
police powers to keep the peace and enforce the criminal laws of the 
Commonwealth. 

I now turn specifically to G.L. c. 8, § 12, to which you have referred in your 
request. This statute provides: 

"The [state] superintendent [of buildings] shall take proper care 
to prevent any trespass on, or injury to, the state house or its 
appurtenances, or any other building or part thereof owned by or 
leased to the commonwealth for public offices; and, if any such 
trespass or injury is committed, he shall cause the offender to be 
prosecuted therefor. For any criminal offence committed in any part 
of the state house or the grounds appurtenant thereto, or in any 
other building owned by or leased to the commonwealth, the 
superintendent and his capitol police shall have the same power to 
make arrests as the state police officers. A capitol police officer may, 
upon view of any misdemeanor committed in his presence, while on 
duty, arrest the person committing such misdemeanor, and shall 
have all the powers of police officers in the enforcement of traffic 
rules, regulations and ordinances on streets adjacent to any building 
owned, or occupied wholly or in part, by the commonwealth; and a 
capitol police officer shall have all the powers of state police officers 
while going to or from any such building on any assigned duty. The 
superintendent may arm his capitol police and, in case of an 
emergency, may arm and detail as capitol police for extra duty such 
employees in his department as, in his judgment, the emergency 
requires for the proper protection of state property under his 
jurisdiction. The capitol police shall have such additional duties as 
may be from time to time assigned by the commissioner of 
administration, and shall have, when so assigned, all the powers of 
state police officers." 

The Capitol Police, through whom you exercise your authority to maintain 
order on the premises under your jurisdiction, are created by G.L. c. 8, § 4. 
They are the successors to the "watchmen" who until 1938 (St. 1938, c. 249) 
had the duty of guarding the State House and other buildings in Boston owned 
or controlled by the Commonwealth. G.L. (Ter. Ed.) c. 8, § 12. The watchmen 
had the "same power to make arrests as the police officers of the City of 



P.D. 12 73 

Boston." St. 1895, c. 284, § 4. It was, I assume, inconceivable both in 1895, 
when the power of arrest was first given to the "watchmen," and in 1938, when 
the watchmen were designated as Capitol Police, that the Legislature could have 
ever intended that this historic public building should be deprived of protection 
by police officers of the City of Boston. 

As for other premises of the Commonwealth under your jurisdiction, there 
may conceivably be cases where the Legislature intended to deny local police 
any jurisdiction over them. However, I would suppose that there are few such 
cases. Unquestionably, the Legislature could, by appropriate enactment, deprive 
local police of any police authority when on state property within their 
municipality. But I find no such general legislation in effect, and I know of no 
other authority requiring such a result. In particular, I know of no common law 
rule or statutory provision which would exempt from local police jurisdiction 
the particular state properties described in your request for my opinion. 

I do not consider applicable certain cases which have held that municipal 
ordinances may not be applied to state property so as to frustrate state policy or 
interfere with state activities. See Teasdale v. Newell & Snowling Constr. Co., 
192 Mass. 440 and Medford v. Marinucci Bros. & Co., 344 Mass. 50, 54-57. We 
are here not concerned with the frustration of or interference with state policy 
or activities but rather with the implementation thereof, pursuant to state 
permission. Compare Commonwealth v. Biddiscombe, 347 Mass. 427, 429; 
Commonwealth v. Bragg, 328 Mass. 327, 330-331. And it is my judgment that 
there are no abstract principles of state sovereignty which would strip municipal 
police of their powers to keep the peace and enforce state criminal law when on 
state property at state request. 

There have been several opinions of Attorneys General dealing with the 
general subject matter of municipal police jurisdiction. See Report of the 
Attorney General for the Year Ending June 30, 1947, p. 91; Report of the 
Attorney General for the Year Ending June 30, 1949, p. AS; Op. Atty. Gen. No. 
67/68-50. The first of these opinions dealt with the jurisdiction of the Boston 
Police over the Logan International Airport (prior to its inclusion in the Boston 
Port Authority). In it, Attorney General Clarence A. Barnes stated: 

"Land acquired by the Commonwealth is not generally subject to 
control by municipal police departments. When such control is 
deemed desirable, specific legislative authority to exercise it is 
granted by the General Court (see G.L. (Ter. Ed.) c. 81, § § 11,19). 
Lands such as reservations, parks and boulevards of the Common- 
wealth placed by the Legislature under the control of a State agency 
or authority are not subject to entry or control by municipal police 
except for such purposes as may have been specifically granted to 
such police by statutory provisions. 

"The police of the city of Boston are confined in their authority 
as regards the said airport to the pursuit and apprehension of persons 
who have committed a breach of any statute, ordinance or 
regulation within the city of Boston outisde the airport and have 
taken refuge in the said airport, and they have no authority to enter 
said airport for the purpose of maintaining peace and order therein 
except at the request of said bureau established for the maintenance 
and operation of the airport as aforesaid." 

As authority for the foregoing statement, Attorney General Barnes cited an 
opinion by Attorney General Herbert Parker in 1902 (2 Op. Atty. Gen. 454) 



74 P.D. 12 

which, together with an ealier opinion (2 Op. Atty. Gen. 363), held that 
municipal police officers, except when in fresh pursuit of a fugitive, had no 
jurisdiction to enforce the public peace on the roadways, parkways and 
boulevards of the Metropolitan Park Commission. In reaching this conclusion 
Attorney General Parker relied on the fact that the statute which created the 
Commission not only vested in it complete and exclusive control of its property 
but also created a special police force to enable the Commission to preserve good 
order thereon. Although the statute was silent on whether this force was to have 
exclusive jurisdiction, the Attorney General inferred this to be the intention of 
the Legislature, and he so held. It is plain, however, that he proceeded on the 
assumption that but for the statute local police would have had jurisdiction over 
the Commission's property. 

Whatever the circumstances in 1902 when Attorney General Parker con- 
sidered this question in respect to the statutes creating the Metropolitan Park 
Commission, I ascertain no such legislative intention generally applicable now to 
all state property. Also, Attorney General Barnes' opinion clearly dealt with an 
asserted conflict in jurisdiction over Logan International Airport. It is, on the 
particular facts there presented, not inconsistent with my opinion herein. 
Indeed, Attorney General Barnes specifically noted an exception for the 
authority of Boston police "to enter said airport for the purpose of maintaining 
peace and order therein ... at the request of . . . [the state body established to 
operate the airport] ." 

Finally, in an opinion dated November 14, 1967 {Op. Atty. Gen. No. 
67/68-50), I stated my view that G.L. c. 41, § 98, which authorizes local police 
to "enter any building to suppress a riot or breach of peace therein" and to 
make arrests in connection therewith, authorized entry for such purposes in 
buildings controlled by the Commonwealth. For the reasons indicated above, 
however, I do not regard § 98 as limiting the authority of local police to enter 
state property. 

Moreover, the present opinion does not in any way diminish the control of 
the Commonwealth or its officials over property owned or leased by the 
Commonwealth. Further, nothing in this opinion should be regarded as holding 
that local police officials are empowered to enforce on state property municipal 
ordinances or by-laws or certain special statutes of only local application. 

In summary then, it is my opinion that, except in particular cases where there 
is a clear legislative expression to the contrary - and there is no such contrary 
expression in relation to the illustrations given in your request for my opinion, 
namely, the State House in Boston, the State Office Building at Springfield and 
various local offices of the Department of Public Welare - the answer to your 
question is YES. 

Yours very truly, 

ELLIOT L. RICHARDSON 

A ttorney General 



P.D. 12 75 

Number 19. December 2, 1968 

HONORABLE ROBERT Q. CRANE 

Treasurer and Receiver General 
Chairman, State Board of Retirement 
State House 
Boston, Massachusetts 02133 

Dear Mr. Crane: 

You have requested my opinion on a problem resulting from the amendment 
of G.L. c. 32, § 58, by St. 1968, c. 700, entitled "An Act increasing [by seven 
percent] the pension allowance of certain veterans." Specifically, you ask 
whether certain prior increases in the pensions of veterans who have already 
retired from public service have, in effect, been replaced by and consolidated 
into the new 7% increase, so that this latter increase represents the only addition 
that can now be made in veterans' basic pension amounts. My answer is in the 
negative. That is to say, both the 7% increase as well as the prior increases 
(subject to a $6,000 limitation, beginning in 1970, referred to below) should 
now be paid. 

Section 1 of c. 700 increased the pensions of certain veterans from 65% to 
72% of the "highest annual rate of compensation." Section 2 of the Act made 
the increase applicable to veterans who had already retired, as follows: 

"Notwithstanding any provision of law to the contrary, any veteran 
who, prior to the effective date of this act, was retired under the 
provision of section fifty-eight of chapter thirty-two of the General 
Laws shall have his annual pension adjusted, so as to comply with 
the provision of said section fifty-eight, as amended by section one 
of this act." 

The background of the 1968 legislation discloses that in addition to receiving 
amounts calculated under G.L. c. 32, § 58, veterans have from time to time 
received certain increments in their pensions as the result of two classes of 
enactments applicable to both veterans and non-veterans. The first class has 
consisted of Hat dollar increases. See St. 1962, c. 646; St. 1963, c. 478; St.. 
1964, c. 486. The second class has consisted of percentage increases dominated 
as "cost-of-living increases." The latter class is represented by St. 1966, c. 661, 
as amended by St. 1967, c. 408, which in effect replaced flat dollar increases by 
an annual system of percentage adjustments based on increases in the United 
States Consumer Price Index (the "index"). The initial adjustment made by the 
cost-of-living statute was based upon the difference between the average index 
for the year in which a pensioner retired to the average index for the year 1965. 
One-third of such adjustment was to be paid in 1967, two-thirds in 1968, and 
the total sum in 1969. However, in order to prevent the new system of 
computation from reducing a pension below the amount that a pensioner was 
already receiving as the result of flat dollar increases, the 1967 amendment also 
provided: 

"No adjustment under this section shall be made in any case where 
the pension ... is greater than the sum of the original amount of 
said pension, . . . plus the amount derived by the application of the 
percentum used to determine any adjustment provided for in this 
section." St. 1967, c. 408, § 1. 

The 1967 legislation also made provision for further cost-of-living adjust- 
ments in 1970 and annually thereafter. St. 1967, c. 408, § 1 amending St. 1966, 



76 P.D. 12 

c. 661, § 2; and § 2, amending G.L. c. 32, § 102. And for 1970 and these later 
years, a pension payable as of December 31, 1969 was fixed as the base pension 
to which cost-of-living adjustments shall thereafter be added, subject to a 
limitation of $6,000 on the amount to which a cost-of-living adjustment may 
then increase a pension. 

I find nothing in the 1968 amendment of G.L. c. 32, § 58 which indicates 
any legislative intention to deny a veteran the benefit of prior increases in his 
pension. The 1 968 amendment was not a broad statutory revision, which might 
otherwise perhaps indicate an intention to establish an entirely new system of 
calculating veterans' pensions. It was rather merely an amendment of one term 
within a larger framework of pensions and pension increases that was kept 
intact. 

It has been suggested that, on the authority of Mathewson v. Contributory 
Retirement Appeal Board, 335 Mass. 610, 614, the words "[n] otwithstanding 
any provision of law to the contrary" in § 2 of c. 700 evidence an intent of the 
General Court to adjust each affected veteran's pension of 72% of his highest 
annual rate of compensation, and to deny any effect to flat dollar or 
cost-of-living increases to which such veteran may have been entitled prior to the 
effective date of c. 700. It is my opinion that the quoted words are designed to 
override any statutory provision that conceivably might prevent a previously 
retired veteran under G.L. c. 32, § 58 from getting the 7% increase, not to 
replace statutory provisions that might enable a veteran to receive other benefits 
as well. As the court emphasized in the Mathewson case, the quoted language 
should be interpreted to repeal only inconsistent laws, and every effort should 
be made to harmonize the statutes involved. See also Morra v. City Clerk of New 
Bedford, 340 Mass. 240, 242-243. I believe that the prior 'flat-dollar and 
cost-of-living increase laws are not the kinds of inconsistent laws which are 
repealed by c. 700 as regards veterans retired under c. 32, § 58. 

Finally, except for the $6,000 aggregate amount of a pension for years 
beginning after December 31, 1969, I find nothing in St. 1967, c. 408 which 
limits the full effect of the seven percent increase granted by St. 1968, c. 700. 

Very truly yours, 
ELLIOT L. RICHARDSON 

Attorney General 



Number 20 December 5, 1968 

HONORABLE LEO L. LAUGHLIN 

Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 0221 5 

Dear Commissioner Laughlin: 

You have requested my opinion as to whether members of the Massachusetts 
State Police, particularly the Uniformed Branch, are permitted to engage in 
collective bargaining with your Department pursuant to G.L. c. 149, § 178F. 
Specifically, you have asked: 

"1. Are members of the Massachusetts State Police, and particularly 
the Uniformed Branch, 'Public Officers' of the Commonwealth? 

"2. Are members of the Massachusetts State Police, and particularly 



P.D. 12 77 

the Uniformed Branch, 'employees' as defined by General Laws, 
Chapter 149, section 178F as amended? 

"3. If the answer to question number 2 is in the affirmative, are 
members of the Massachusetts State Police, and particularly the 
Uniformed Branch, such persons whose participation or activity in 
the management of employee organizations [would] be incompat- 
ible with law or with their official duties as employees? 

"4. If the answer to question number 3 is in the affirmative, may 
members of the Massachusetts State Police, and particularly the 
Uniformed Branch, be members of an employee organization if they 
do not participate or have activity in the management of such 
employee organization?" 

The applicable statute is G.L. c. 149, § 178F, inserted by St. 1964, c. 673, as 
amended by St. 1967, c. 774. It provides (subsec. 3) that "Employees of the 
Commonwealth shall have and be protected in the exercise of the right of 
self-organization, the right to form join or assist any employee organization, to 
bargain collectively through representatives of their own choosing, and to engage 
in concerted activities for the purpose of collective bargaining and other mutual 

aid or protection, free from interference, restraint or coercion; " The statute 

deals comprehensively with many aspects of employer-employee relations, 
covering such matters as the establishment of bargaining units, conduct of 
elections, procedures for fact finding, prohibition of unfair labor practices, and 
investigation of complaints that such practices have been committed. Strikes are 
prohibited. Since the statute applies only to "employees" of the Common- 
wealth, the statutory definition of an employee is critical. An employee is 
defined (subsec. 1) as: 

"[A] ny employee of the commonwealth assigned to work in any 
department, board, commission or other agency thereof except the 
head of any department, board, commission or other agency who is 
appointed by the governor and members of any board, commission 
or other agency who are so appointed, and any other person whose 
participation or activity in the management of employee organiza- 
tions would be incompatible with law or with his official duty as 
employee." 

I turn now to your specific questions: 

Question One 

The term "employee" in the foregoing definition is used in a broad and 
comprehensive sense, indicating a legislative intention to include within its scope 
all employees of the Commonwealth except those specifically excluded. Because 
of the breadth of the definition and the nature of its exclusions, it is clear that 
the term "employee" is not used in the narrow limited sense of a mere employee 
as distinguished from a "public officer." Compare Commonwealth v. Tsaffaras, 
250 Mass. 445, 447-448; Attorney General v. Tillinghast, 203 Mass. 539, 
543-544; Brown v. Russell, 166 Mass. 14, 25-26. The statutory definition of 
"employee" does not provide a general exclusion for "public officers" as a class. 
Since, therefore, nothing in your inquiry as to the collective bargaining rights of 
members of the State Police turns on whether they are "public officers," I find 
it unnecessary to answer your first question, and I must ask to be excused from 
making a reply. 



78 P.D. 12 

Question Two 

As I have already stated above in relation to your first question, the word 
"employee" in G.L. c. 149, § 178F is used broadly and comprehensively. Any 
exclusion must be derived from its specific exceptions. Such an exclusion, in the 
case of members of the State Police, would require a determination that they are 
(1) "members of [a] board, commission or other agency who are . . . appointed" 
by the Governor or (2) persons "whose participation or activity in the 
management of employee organizations would be incompatible with law or with 
[their] official duty as employee [s] ." It is clear that they do not come within 
the first of the foregoing categories since they are not members of a "board, 
commission, or agency" and, further, they are not appointed by the Governor. 
Rather, they are employed by a "department" (the Department of Public 
Safety), a unit which is carefully distinguished in G.L. c. 149, § 178F from a 
"board, agency or commission," and they are appointed bv the Commissioner of 
Public Safety. G.L. c. 22, § § 9 and 9A. 

As for the second of the exceptions, namely, "any other person whose 
participation or activity in the management of employee organizations would be 
incompatible with law or with his official duty as [an] employee," I observe 
initially that the exclusion is phrased not in terms of the employee's actual role 
in an employee organization but rather in terms of his possible role if he should 
become engaged in its management. That is to say, the test is phrased in terms of 
whether his position as a public employee would be incompatible with a 
management role in the employee organization, not in terms of whether he 
actually participates in the management of the employee organization.* Your 
request for my opinion, however, relates only to the State Police and its 
Uniformed Branch as general classes, and refers only to their general powers and 
duties as police officers. My opinion must therefore be framed in similarly 
general terms, and not with reference to any more particular position or 
responsibilities. 

It is my judgment that the Legislature has made a determination that, as a 
general proposition, members of the State Police and its Uniformed Branch 
come within the definition of "employees" in § 148F and that their official 
duties as police officers are not, as such, incompatible with their participation in 
the management of an employee organization. In reaching this conclusion, I find 
it significant that although prior legislation, referred to below in this opinion, 
had expressly excluded police officers from the class of public employees 
entitled to join labor organizations, St. 1967, c. 774, which supplied the present 
definition of "employee" in G.L. c. 149, § 178F, made no explicit reference to 
police officers. Moreover, in determining the intention of the Legislature in 
connection with state employees, it is, I believe, relevant to observe that police 
officers are included in the municipal collective bargaining statute. G.L. c. 149, 
§§ 178G-178N. When this statute was first enacted by St. 1965, c. 763, § 2, 

♦Compare the original definition of "employee" in G.L. c. 149, § 178F, as contained in St. 
1964, c. 6 37. Although employees with "incompatible" positions were not prohibited from 
membership in employee organizations, they were not allowed "to participate in the 
management of [an] employee organization or act as its representative." The Director of 
Personnel and Standardization was designated to determine when such incompatibility 
existed in particular cases. The 1967 amendment, St. 1967, c. 774, changed the definition 
of an "employee" to the present form so as to exclude holders of "incompatible" positions 
not merely from management roles in employee organizations but from the coverage of § 
178Fas well. 



P.D. 12 79 

police officers were excluded from the definition of "employee". (§ 178G). 
However, by St. 1966, c. 156, the General Court deleted the police exception 
from the definition. Thus, it is clear that municipal police officers may now 
engage in collective bargaining. It is reasonable to assume that the General Court, 
in amending § 178F in 1967, had this history in mind and would have 
specifically excluded police from the operation of § 178F, if it had intended to 
deny collective bargaining to State Police. 

In concluding that members of the State Police and its Uniformed Branch are 
generally to be regarded as "employees" within the meaning of G.L. c. 149, § 
178F(1), I have carefully considered G.L. c. 149, § 178D. Inserted in the 
General Laws by St. 1958, c. 460, as amended by St. 1962, c. 504, this statute 
authorized public employees at both the state and local levels "to form and join 
vocational or labor organizations and to present proposals relative to salaries and 
other conditions of employment through representatives of their own choosing." 
Excluded from its provisions were "police officers in the employ of the 
commonwealth or any political subdivision thereof." Since this statute was only 
a precursor of the independent and more comprehensive provisions of G.L. c. 
149, § 178F, I find no basis for reading a police officer exclusion into the latter 
enactment. In fact, as I have already stated, I regard the absence of an explicit 
reference to police officers in the latter statute as indicative of a legislative intent 
that, as a general proposition, they should be regarded as "employees." 

I have also considered St. 1950, c. 120 (not inserted in the General Laws), 
which authorized the "uniformed members of the division of state police ... to 
organize or incorporate under the provisions of the General Laws for the 
purpose of bettering their working conditions . . . ." This statute expresses a 
positive legislative attitude toward an employee organization of members of the 
Uniformed Branch but it does not, in my judgment, fix the outer limits of such 
an organization. To the extent that G.L. c. 149, § 178F provides broader rights, 
I regard the latter statute to be applicable. 

Question Three 

I believe that your third question has already been answered in my answer to 
your second question. In the context of the phrasing of your third question, my 
conclusion is that the Legislature has determined that members of the State 
Police and its Uniformed Branch cannot be said to be persons who are generally 
regarded as persons whose participation or activity in the management of 
employee organizations would be incompatible with law or with their official 
duties as employees. Conceivably holders of certain senior ranks in the State 
Police might be so regarded. Any such determination, however, would involve a 
careful consideration of all relevant facts relating to the duties of the holders of 
such ranks. I call your attention to the provisions of G.L. c. 149, § 178(11) 
which authorizes the Director of Personnel and Standardization to adopt rules 
"to carry out the provisions of [§ 178F] ." If questions should arise with regard 
to possible incompatibility, I suggest that you consult the Director. 

Question Four 

Your fourth question seems to assume that the answer to your third question 
must be unqualifiedly in either the affirmative or the negative. For the reasons 
that I have indicated above, however, in relation to your third question, it is 
clear that a categorical response cannot be given. As I have indicated, generally 
speaking, the answer to the third question is in the negative. That is to say, it 
cannot be said that members of the State Police and its Uniformed Branch are 
persons who are generally regarded as employees whose participation or activity 



80 P.D. 12 

in the management of employee organizations would be incompatible with law 
or with their official duties. However, depending on the functions of particular 
individuals, presumably holders of senior ranks — and I have not been furnished 
with any set of facts which would enable me to make a determination in this 
respect - one might conceivably conclude that there would be such incompat- 
ibility in specific cases. 

With reference to that part of your fourth question which asks whether the 
existence of incompatibility would automatically exclude a member of the State 
Police from the coverage of G.L. c. 149, § 178F, even though he does not 
participate in the management of the employee organization, I refer you to my 
answer to your second question. There I stated that in my judgment the correct 
legal test depends on whether a public employee's position in the public service 
would conflict with a management role in an employee organization, assuming 
he held such a role, not on whether he actually participates in its management. 
There being no particular facts before me, however, with reference to your 
fourth question, I must refrain from attempting to answer it further. 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttorney General 



Number 21 . December 9, 1968 

ALCOHOLIC BEVERAGES CONTROL COMMISSION 

State Office Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Gentlemen: 

You have requested my opinion on certain questions relating to the 
establishment of maximum prices for the retail sale of alcoholic beverages. Your 
question, in substance, are as follows: 

1. Does the Alcoholic Beverages Control Commission have 
authority to establish maximum prices chargeable by licensees under 
G.L. c. 138, § 12? 

2. Does the Commission have authority to establish maximum 
prices chargeable by licensees under G.L. c. 138, § 15? 

3. If the answer to either of the foregoing questions is affirmative, 
"what standards or guide-lines . . . should [the Commission] follow 
in establishing said maximum prices[?]" 

The licensees at which your questions are directed are the two largest classes 
of liquor retailers in Massachusetts. General Laws c. 138, § 12, referred to in 
Question 1, is the statute under which restaurants, hotels, taverns and clubs may 
be licensed to sell alcoholic beverages for consumption on the licensed premises. 
General Laws c. 138, § 15, referred to in Question 2, authorizes the licensing of 
package stores. Together, these two groups of licensees represent the overwhelm- 
ing majority of those engaged in the retail liquor industry in this Common- 
wealth. 1 

The only other types of licenses for the retail sale of alcoholic beverages which may be is- 
sued under (l.L. c. 138 are for railroad trains and ships (§ 13), for certain special activities 
and enterprises (§ 14) and for druggists (§ 30A). It is my understanding that these classes 
of licensees have at all times represented only a small fraction of the licensed liquor re- 
tailers in Massachusetts. 



P.D. 12 81 

As you indicate in your letter, the answers to your questions depend on the 
effect of G.L. c. 138, § 24, the first sentence of which reads as follows: 

"The [alcoholic beverages control] commission shall, with the 
approval of the governor and council, make regulations not 
inconsistent with the provisions of this chapter for clarifying, 
carrying out, enforcing and preventing violation of, all and any of its 
provisions, for inspection of the premises and method of carrying on 
the business of any licensee, for insuring the purity, and penalizing 
the adulteration, or in any way changing the quality or content, of 
any alcoholic beverage, for the proper and orderly conduct of the 
licensed business, for establishing maximum prices chargeable by 
licensees under this chapter, and regulating all advertising of 
alcoholic beverages, except such advertising as appears in publica- 
tions which are circulated to the liquor trade and not to the general 
public, and shall, with like approval, make regulations governing the 
labelling of packages of alcoholic beverages as to their ingredients 
and the respective quantities thereof." (Emphasis supplied.) 



On the face of it, then, § 24 clearly authorizes the Commission to "make 
regulations ... for establishing maximum prices chargeable by licensees under 
this chapter . . . ." It is equally clear that those licensed under G.L. c. 138, § 12, 
to sell alcoholic beverages for on-premis consumption, referred to in Question 1, 
are "licensees under this chapter." Thus, the plain language of the statute would 
seem to require an affirmative answer to Question 1. 

I can find nothing in the legislative history of the maximum price clause of § 
24 to suggest that any different meaning was intended. On the contrary, there is 
some indication that when this clause was inserted in the General Laws by St. 
1933, Extra Session, c. 376, § 2, licensees under § 12 were among those at 
which it was principally aimed. In the first place, the Legislature had before it a 
special report of the Alcoholic Beverages Control Commission, filed at the 
direction of the Senate shortly before the passage of c. 376, indicating that well 
over half of all the licenses theretofore issued during the brief period of the 
Commission's existence had been to establishments serving drinks for on- 
premises consumption. 1933 Senate Doc. No. 497 (Extra Session). 2 Thus, it 
must have been obvious to the Legislature at the time that any unqualified 
reference to "licensees under this chapter" would necessarily include this class of 
licensees under this chapter" would necessarily include this class of licensee. 
Moreover, this general reference did not appear in the bill originally submitted to 
the Legislature, but resulted from an amendment proposed- by its Committee on 
Legal Affairs. 1933 House Doc. No. 1610 (Extra Session). The original version 
of § 24 would have confined such regulations to "prices chargeable by 

2 The Commission had been established by St. 1933, c. 120, which authorized the issuance of 
licenses to manufacturers, wholesalers, transporters and retailers of certain wines and malt 
beverages. The Commission's report disclosed that licenses had been issued in the fol- 
lowing numbers: 

Licenses issued to on-premises drinking establishments 3346 

Licenses issued to package stores 1724 

Licenses issued to all other retailers and to all manufacturers, 741 

wholesalers and transporters 



82 P.D. 12 

manufacturers of alcoholic beverages and holders of wholesalers' and importers' 
licenses. " (Emphasis supplied.) 1933 Senate Doc. No. 494 (Extra Session). The 
only "licenses under this chapter" which the Legislature could possibly have 
intended to include by the adoption of this amendment were retailers. * And, 
since the Legislature had every reason to assume that most of the "licensees 
under this chapter" would be on-premises drinking establishments licensed under 
G.L. c. 138, § 12, I think that this history indicates a deliberate effort on the 
part of the Legislature to bring those licensees within the scope of the maximum 
price clause of § 24. 

In answer to Question 1, therefore, I am of the opinion that G.L. c. 138, § 
24 authorizes the Commission, subject to the approval of the Governor, 4 to 
establish maximum prices chargeable for alcoholic beverages by licensees under 
G.L.c. 138, § 12. 

Question 2 is addressed to the other major class of liquor retailers: the 
package stores licensed under G.L. c. 138, § 15. For much the same reasons 
given in my answer to Question 1, it is clear, I think, that the Legislature, when 
it enacted G.L. c. 138, § 24 in 1933, intended that its maximum price clause 
apply to sales by licensees under § 15 as well as those by licensees under § 12. 
While it was to be expected at the time that there would be fewer package-store 
licenses than on-premises licenses, the large number of package-store licenses 
predictable from evidence then before the Legislature was such that it could 
harldy have failed to consider them as "licensees under this chapter" when 
adopting the revised version of G.L. c. 138, § 24. s 

It has been suggested, however, that so much of § 24 as would authorize the 
establishment of maximum prices for sales by licensees under § 15 was 
impliedly repealed by the enactment of St. 1952, c. 385, inserting G.L. c. 138, § 
25C in the General Laws. Section 25C imposes a system of minimum consumer 
prices for sales by package stores of alcoholic beverages other than malt 
beverages. Subsection (d) of § 25C divides each calendar year into six price 
periods of two months' duration. Subsections (b) and (c) require certain 
wholesalers, importers and manufacturers to file minimum consumer prices for 
each brand of alcoholic beverage marketed in Massachusetts prior to each of 
these price periods. The prices thereby filed go into effect only after they have 
been approved by the Commission under § 25C(d) "as not being excessive, 
inadequate or unfairly discriminatory." The final paragraph of § 25C authorizes 
the Commission to suspend the license of a package store which sells below any 
of the applicable minimum consumer prices then in effect. 

Prior to the enactment of § 25C, the Legislature had attempted to regulate 
minimum prices of alcoholic beverages sold at package stores by making the 
so-called "Fair Trade Law" (G.L. c. 93, §§ 14A-14D) and "Unfair Sales Act" 
(G.L. c. 93, §§ 14E-14K) applicable thereto. This was the purpose of G.L. c. 
138, § 23A, inserted by St. 1945, c. 215. In 1957, however, the Supreme 
Judicial Court held that § 23A had been impliedly repealed by the enactment of 

3 The only non-retail alchoolic beverage licenses authorized by G.L. c. 138 at the time were 
for manufacturers, wholesalers and importers. See G.L. c. 138, §§ 18, 19, as appearing in 
St. 1933, Extra Session, c. 376, § 2, The 1933 version of G.L. c. 138 also provided for 
the issuance of licenses to package stores (§ 15) and to the relatively minor groups of re- 
tailers listed in Note 1, supra. 

4 The words "and council" were stricken from the approval requirement of G.L. c. 138, § 24 
by St. 1964, c. 740, § 4. See Op. Atty. Gen. No. 66/67-28. 

5 See Note 2, supra. 



P.D. 12 83 

§ 25C. Bond Liquor Store, Inc. v. A.B.C.C, 336 Mass. 70, 74. The Court gave 
two reasons for its holding: (1) that "the application of § 23A to sales to which 
§ 25C also in terms applies would be so arbitrary and unreasonable ... as to 
show inconsistency and repugnance in their respective provisions" (p. 74), and 
(2) that "the intention to occupy the entire field of price control in the liquor 
industry is reasonably manifested by § 25C" (p. 77). 

I am of the opinion that neither of the reasons relied upon in the Bond case 
for the implied repeal of G.L. c. 138, § 23A is applicable to the provision of 
G.L. c. 138, § 24 involved here. As to the first of these reasons, the Court in the 
Bond case emphasized that the continued application of § § 23A and 25C to the 
same sales would subject those sales to two sets of minimum prices and would 
subject violators of those prices to two sets of penalties. 336 Mass. at 74-77. The 
Court found this to be "arbitrary and unreasonable" because both § 23A and § 
25C are minimum price statutes. The regulatory power sought to be asserted 
under § 24, however, is restricted to maximum prices. 6 The imposition of both 
a minimum and a maximum price upon sales of the same beverage — even where 
they are established by different procedures and their violators are subject to 
different penalties - cannot properly be regarded as "so arbitrary and un- 
reasonable ... as to show inconsistency and repugnance in their respective 
provisions." 

The second of the reasons given by the Court in the Bond case for the implied 
repeal of § 23A — that "the intention to occupy the entire field of price control 
in the liquor industry is reasonably manifested by § 25C" (336 Mass. at 
77) — seems on its face to apply equally to the price clauses of § 24. Read in the 
context of the opinion as a whole, however, I think this statement must be taken 
as referring only to the field of minimum price control. The fact that 
Commission approval of proposed minimum consumer prices under § 25C is 
conditioned upon their not being "excessive" does not alter this conclusion, 
since a given price might well be "excessive" as a minimum without being 
"excessive" as a maximum. In any event, the Supreme Judicial Court seems to 
have so interpreted the Bond case in T.J. Hartnett Beverage Co., Inc. v. A.B.C.C, 
350 Mass. 619, 621: 

"The reasoning in the Bond case was that both statutes were 
designed to eliminate price cutting and 'loss-leader selling,' and that 
if both statutes were operative there would be inconsistencies which 
would have unreasonable and capricious consequences. Thus it was 
held that § 25C, which was enacted after § 23A, was intended to 
cover the whole subject of price cutting and repealed § 23A by 
necessary implication." (Emphasis supplied.) 

As the Court said in Hartnett, § 25C does not undertake "to forbid sales in 
excess of the established minimum prices." 350 Mass. at 622. Thus, the entire 
area of operation of the maximum price clause of § 24 remains outside the field 
pre-empted by § 25C. 

Since neither of the grounds cited in the Bond case for the implied repeal of 
§ 23A apply to the maximum price clause of § 24, that case cannot be relied 
upon as authority for implied repleal of the latter provision. And, since these 

6 Actually, one of the alternatives to § 25C which the Legislature considered at the time of 
its enactment was a proposal whereby G.L. c. 138, § 24 would be amended to authorize 
the Commission to establish "maximum or minimum prices chargeable by licensees un- 
der this chapter ..." (Emphasis supplied.) See 1952 House Doc. No. 952. 



84 P.D. 12 

two grounds — inconsistency and pre-emption — are, to the best of my know- 
ledge, the only ones which have ever been recognized in Massachusetts as a basis 
for implied repeal of a statute, I do not think that such implied repeal can be 
established here on any other theory. The Court has often stated that repeals by 
implication are not favored, and that "[u]nless the prior statute is so repugnant 
to and inconsistent with the latter enactment that both cannot stand, then the 
former is not deemed to have been repealed." Commonwealth v. Bloomberg, 
302 Mass. 349, 352. Haffner v. Director of Public Safety of Lawrence, 329 Mass. 
709, 713-714. T.J. Hartnett Beverage Co., Inc. v. A.B.CC, 350 Mass. 619, 622. 7 
There is no such repugnance and inconsistency between § 24 and § 25C. 

It is therefore my opinion that G.L. c. 138, § 24, as applied to licensees 
under G.L. c. 138, § 15, was not affected by the enactment of G.L. c. 138, § 
25C, and that the Commission, with the approval of the Governor, may still 
adopt regulations establishing maximum prices thereunder for sales of alcoholic 
beverages by such licensees. 

Question 3, relating to the "standards or guide-lines" the Commission should 
follow in setting maximum prices under G.L. c. 138, § 24, is, of course, quite 
abstract. And the difficulties inherent in attempting to answer abstract legal 
questions are compounded here by the total absence of any express substantive 
standards in § 24, 8 and by the fact that the Commission, so far as I am aware, 
has never promulgated any maximum price regulations during the entire 
twenty-five years that § 24 has been in effect. 

I can only advise you that the Legislature has conferred extremely broad 
discretion upon the Commission in the establishment of maximum liquor prices. 
The standards for determining the levels of these prices, the scope and the degree 
of generality or specificity of the regulations establishing them and the 
procedures for adopting those regulations have all been left largely to the 
discretion of the Commission. So long as the prices it adopts meet constitutional 
tests of fairness and common sense tests of reasonableness — and so long as they 
are adopted in accordance with the Massachusetts Administrative Procedure Act, 
G.L. c. 30A (see Kneeland Liquor, Inc., v. A.B.CC, 345 Mass. 228), and 
through the exercise of independent judgment based on "some form of 
substantial information or evidence" as to their compliance with the standards 
established by the Commission (see Pioneer Liquor Mart, Inc. v. A.B.CC, 350 
Mass. 1, 8) — I believe that the Commission will be acting within its authority. 



The Hartnett case held that a provision of G.L. c. 138, § 15 requiring package stores to 
post their prices and to sell only at the posted prices was not impliedly repealed by the 
subsequent enactment of § 25C. Since the § 15 posting requirement has a maximum (as 
well as minimum) price aspect, the Hartnett case lends further support to the proposition 
that the maximum price clause of § 24 remains intact. 

I have considered the possibility of a constitutional objection to § 24 's price-setting clause 
based on a claim of an over-broad delegation of legislative power to the Commission. But 
without facts tending to show that sufficiently precise standards may not be supplied by 
implication, I am not prepared to rule that the maximum price clause of § 24 is 
unconstitutional on its face. More explicit statutory standards - both substantive and 
procedural - would, of course, be desirable. See Supreme Malt Products Co., Inc. v. 
A.B.CC, 334 Mass. 59, 63. 



P.D. 12 85 

In short, the Legislature has relied upon the expertise of your agency in this 
area for the development of appropriate standards and guidelines within the 
broad limitations described above. The discretion thus delegated to you is even 
broader than that conferred by G.L. c. 138, § 25C, and the standards and 
guidelines are, at least at this preliminary state, primarily the subject of 
administrative, not legal, judgment. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 22. January 2, 1969 

HONORABLE RICHARD E. McLAUGHLIN 

Registrar of Motor Vehicles 

100 Nashua Street 

Boston, Massachusetts 021 14 

Dear General McLaughlin: 

You have requested my opinion as to whether a certain claim in the amount 
of $645 submitted by John M. O'Donnell, an investigator at the Registry of 
Motor Vehicles, may be paid under G.L. c. 16, § 1 1. 

Your letter states: 

"The claim arises out of damage sustained by Mr. O'Donnell to 
radio equipment installed by him at his own expense in his car for 
the purpose of better enabling him to carry out his duties of 
investigating fatal accidents. 

"On Thursday, October 14, 1967, Mr. O'Donnell had responded 
to a call from the Metropolitan District Commission, and was 
returning to his home in Milton when his car was in collision with 
another vehicle, which reportedly had crossed the center line. 

"... We are advised that the insurance carried by Mr. O'Donnell 
did not cover the radio equipment, and that he has not been 
compensated by any other source for the loss, nor is there any 
reasonable expectation that he will be compensated unless paid by 
this agency. If it is relevant, Mr. O'Donnell had the approval of the 
Registry for the use of this equipment in the performance of his 
duties." 

Appended to your letter is a report of the accident prepared by Mr. 
O'Donnell, indicating that it resulted in the total destruction of his car and radio 
equipment. It appears from other materials furnished to us that this has been 
confirmed by an independent investigation by the Registry. Also attached to 
your letter is a copy of a receipt issued to Mr. O'Donnell in the amount of $645, 
as payment in full for the labor and materials involved in replacing the radio 
equipment. 

Your letter further states that you have submitted a voucher to the 
Comptroller for payment to Mr. O'Donnell in the above amount pursuant to 
G.L. c. 16, § 1 1, but that the Comptroller has declined to certify your voucher 
for payment and has returned it with the recommendation that it be presented 
to the Legislature. You now seek my opinion as to whether this is a proper 
expenditure under the statute relied upon. 



86 P.D. 12 

General Laws c. 16, § 1 1, so far as material, provides: 

"The registrar of motor vehicles shall, subject to appropriation, 
indemnify an employee in the registry of motor vehicles having 
police powers under section twenty-nine of chapter ninety to an 
amount not more than the amount recommended by said registrar, 
for expenses or damages sustained by him while performing his 
duties under said section twenty-nine . . . ."* 

According to your letter and previous correspondence with this Department, 
you have determined that Mr. O'Donnell is "an employee in the registry of 
motor vehicles having police powers under [G.L. c. 90, § 29] ," that his radio 
equipment was destroyed "while performing his duties under said [§ 29]" and 
that the replacement cost of the equipment was $645. On the basis of" these 
factual determinations, I believe this to be precisely the sort of claim at which 
the quoted provision of G.L. c. 16, § 1 1 is directed. 

We need not inquire whether Mr. O'Donnell was actually using the equipment 
in the performance of his duties under G.L. c. 90, § 29 (though I infer from 
your letter that he probably was). Indemnification under G.L. c. 16, § 11 
extends to all personal property of an employee described therein which 
happens to be damaged or destroyed while he is performing such duties. Thus, 
you would be empowered, although not required, under § 1 1 to indemnify him 
for the loss of any item he was carrying in his automobile at the time, without 
regard to the character or use of the item. It is immaterial that the particular 
article involved was equipment which might well have been furnished by the 
Registry at Commonwealth expense in the first instance. 

On the basis of the facts submitted by you and assuming the availability of 
funds appropriated for this purpose, I am therefore of the opinion that you may 
in your discretion indemnify Mr. O'Donnell under G.L. c. 16, § 11 in the 
amount claimed, and, if the voucher presented by reason thereof is otherwise in 
order, that the Comptroller has a duty to certify the same for payment. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 23. January 3, 1969 

MRS. MABEL A. CAMPBELL, DIRECTOR 

Division of Civil Service 

State House 

Boston, Massachusetts 02133 

Dear Mrs. Campbell: 

You have requested my opinion as to whether the parking meter supervisors 

* Section 1 1 also provides indemnity for such an employee for expenses and damages in- 
curred by him in the defense or settlement of certain claims brought against him, "pro- 
vided, that the defense or settlement of such claim shall have been made by the attorney 
general ..." The same section requires that amounts paid on account of damages for per- 
sonal injuries "shall have been approved by the attorney general." However, no such ap- 
proval or other action by this Department is required for the payment of claims des- 
cribed in that portion of § 1 1 quoted in the text and relied upon by Mr. O'Donnell. 



P.D. 12 87 

(commonly known as "meter maids") of the City of Boston are subject to civil 
service. 

The position of parking meter supervisor was created by St. 1965, c. 365, § 
1, in the form of an amendment to St. 1898, c. 282, § 3, relating to the 
appointment of special police officers in the City of Boston. The 1965 
amendment inserted the following sentence in the earlier statute: 

"Every special police officer appointed under the provisions of 
this act upon the written application of the commissioner of traffic 
and parking of said city shall have all the powers and duties of a 
police officer, including those conferred or imposed by section 
twenty C of chapter ninety of the General Laws, to enforce all laws, 
rules and regulations regulating, directing, controlling or restricting 
the stopping or standing of vehicles at meters in public ways and in 
off-street parking areas and facilities deemed to be ways under the 
control of the city." (Emphasis supplied.) 

The 1965 statute, in § 2, also amended G.L. c. 31, § 5, by which the 
selection and appointment of persons to fill various positions are specifically 
exempted from rules of the Civil Service Commission, by adding "parking meter 
supervisors" to the list of positions so exempted. The obvious purpose of the 
latter amendment was to place the special police officers described in the 
sentence quoted above outside the civil service system. 

It is now suggested, however, that this result has been changed by the 
enactment of St. 1968, c. 308, which struck the words "at meters" from the 
above-quoted provision of the 1965 statute. The effect of the 1968 amendment, 
of course, was to extend the authority of these special police officers to vehicles 
stopping, standing or parking at places other than meters. Accordingly, the 
contention is made that these officers no longer qualify as "parking meter 
supervisors," and hence are no longer exempt from civil service under G.L. c. 31, 
§5. 

I am not persuaded by this contention. The legislative purpose of the 1968 
statute, as set forth in its title, was to authorize "parking meter supervisors to 
enforce all laws relative to parking in the City of Boston." I find nothing in the 
language or history of this statute to suggest that it was intended to do more 
than increase the powers of these officers. The fact that the Legislature created a 
specific exemption from civil service for these officers at the time it authorized 
their appointment leads me to believe that the Legislature would have been 
equally specific if it had intended to limit or eliminate that exemption three 
years later. Indeed, it may well be that the exemption in G.L. c. 31, § 5 for 
"parking meter supervisors" would cease to have any application whatever if 
these officers were now regarded as outside its scope. And it is of some 
significance that the officers whose powers were extended by the 1968 statute 
to non-meter parking violations were nonetheless referred to in the title to that 
statute as "parking meter supervisors." 

Moreover, the civil-service status of parking meter supervisors was the specific 
subject of other 1968 legislation, enacted subsequently to the 1968 statute 
discussed above. In St. 1968, c. 461, § 2, the Legislature inserted § 48B in c. 31 
of the General Laws, whereby "[a] city, by vote of its city council, and a town, 
by vote of its town meeting, may place the position of parking meter supervisor 
under the provisions of this chapter [i.e., under civil service] ." Section 1 of the 
same statute inserted language after the words "parking meter supervisors" in 
the list of positions exempted from civil service by G.L. c. 31, § 5 to allow for 



88 P.D. 12 

the exercise of this local option. The plain implication of c. 461 is that the 
Legislature intended to subject these officers to civil service only where the 
employing municipality elected to do so. It is my understanding that the City of 
Boston has not so elected. 

I am therefore of the opinion that St. 1968, c. 308 in no way affected the 
civil-service status of the special police officers referred to therein. Accordingly, 
in the absence of local action pursuant to G.L. c. 31, § 48B, these officers 
remain within the exemption conferred by G.L. c. 31, § 5. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 24. January 10, 1969 

HONORABLE OWEN B. KIERNAN 

Commissioner of Education 
1 80 Tremont Street 
Boston, Massachusetts 021 1 1 

Dear Commissioner Kiernan: 

You have requested my opinion as to certain powers and duties of school 
committees as a result of the amendment of § 1781 of the municipal collective 
bargaining law (G.L. c. 149, §§ 178G-N) by c. 633 of St. 1968. Prior to the 
1968 amendment the first paragraph of § 1781 read as follows: 

"The municipal employer and the employee organization recog- 
nized or designated as exclusive representative of employees in an 
appropriate unit shall have the duty to bargain collectively. In such 
bargaining other than with an employee organization for school 
employees, the municipal employer shall be represented by the chief 
executive officer, whether elected or appointed, or his designated 
representative or representatives. In such bargaining with an em- 
ployee organization for school employees, the municipal employer 
shall be represented by the school committee or its designated 
representative or representatives. In such bargaining in a super- 
intendency union formed in accordance with general or special law, 
the school committees may be represented by a common representa- 
tive or representatives designated by them and the employee 
organizations may be represented by a common representative or 
representatives designated by them." 

The 1968 amendment added a proviso to the third sentence of the foregoing 
paragraph so that the third sentence now reads as follows: 

"In such bargaining with an employee organization for school 
employees, the municipal employer shall be represented by the 
school committee or its designated representative or representatives; 
provided, however, that the school committee shall not designate an 
attorney as its representative unless it is so authorized by vote of the 
city council, in the case of a city, or of the town meeting, in the case 
of a town. Such attorney shall not be subject to the provisions of 
section nine A of chapter thirty 1 or the provisions of chapter 
thirty-one. 2 " 

'Veteran's tenure 
2 Civil Service 



P.D. 12 89 

You have asked me the following eight questions: 

"1. Is Chapter 633 of the Acts of 1968 a valid discrimination 
against a class of persons? 

"2. Under said Chapter 633 may a school committee represent 
itself in bargaining with an employee organization if (a) one, (b) 
more than one but fewer than a majority, (c) a majority of its 
members are attorneys? 

"3. Under said Chapter 633 may a school committee designate an 
attorney who is a member of the school committee as (a) its 
representative or (b) one of its representatives, in each case without 
compensation, in bargaining with an employee organization? 

"4. If it is your opinion that any part of question 1 or question 2 
should be answered 'no', is said Chapter 633 an invalid discrimina- 
tion against a class of persons? 

"5. If it is your opinion that said Chapter 633 is valid, does the 
act prohibit a school committee from contracting with, employing 
or retaining a consultant, who is an attorney, to advise and assist its 
designated representative or representatives in bargaining with an 
employee organization unless such contract, employment or retainer 
has been authorized as provided in the act? 

"6. If it is your opinion that question 5 should be answered 'no', 
is the compensation to be paid to such consultant an expenditure for 
the support of the public schools to which General Laws Chapter 71, 
Section 34 applies? 

"7. Must the authorization specified by said Chapter 633 be 
authorization limited to the designation of a particular attorney or 
to the designation of an attorney as the representative of the school 
committee for particular bargaining matters or for a particular 
period of time or may such authorization be an authorization to 
continue in effect as to all designations thereafter made until further 
action of the authorizing body? 

"8. If a school committee designates an attorney pursuant to 
valid authorization may such attorney be compensated and, if he 
may be compensated, is such compensation an expenditure for the 
support of the public schools to which General Laws Chapter 71, 
Section 34 applies?" 

The legislative history of c. 633 shows that the measure as enacted differed 
considerably from the bills from which it was derived. The original bills 
authorized a school committee to employ legal counsel for general purposes. 
1968 House Doc. Nos. 236, 666; 1968 Senate Doc. No. 244. The House 
substituted for these bills a measure authorizing school committees to hire an 
attorney to represent them in collective bargaining. 1968 House Doc. No. 4433. 
This bill passed both the Senate and the House but the Governor returned it 
with a recommendation that a school committee could designate an attorney as 
its collective bargaining representative only upon approval by the city council or 
town meeting. The Governor stated: 

"While I can see that there may be some need for some school 
committees to hire someone skilled in collective bargaining, I feel 
that a decision as to whether any particular city or town should 
permit a person other than the appointed town counsel to represent 



90 P.D. 12 

the school committee should be left to the governing body of that 
particular municipality." 1968 House Doc. No. 4670. 

The Legislature accepted the Governor's recommendation with minor amend- 
ments. It also changed the title of the bill from "An Act Providing for Hiring of 
Counsel by School Committees as Collective Bargaining Representatives" to "An 
Act Providing that School Committees Shall Not Designate Attorneys as 
Collective Bargaining Representatives unless so Authorized by the City Council 
or the Town Meeting." 

Turning now to your questions, I answer them as follows: 

Question 1 

Your first question asks whether c. 633 is a "valid discrimination" against 
attorneys. I assume that you are referring to the fact that although authorization 
by a city council or town meeting is required for a school committee's 
designation of an attorney as its representative in collective bargaining 
negotiations, no such authorization is required for the designation of someone 
who is not an attorney. I find no invalidity in the foregoing provision. The 
statute does not exclude attorneys from serving as collective bargaining 
representatives but merely conditions their designation as such on a vote of a 
city council or town meeting. That the designation of a non-lawyer is not subject 
to the same condition does not present any substantial issue of "discrimination" 
in any constitutional sense. The presumed statutory purpose - that of centraliz- 
ing municipal approval for all municipal legal services — does not appear to be 
improper. See Opinion of the Justices, 303 Mass. 631, 641 ; Mayor of Somerville 
v. District Court of Somerville, 317 Mass. 106. 

Question 2 

Your second question asks whether "under" c. 633 a school committee may 
"represent itself in collective bargaining negotiations if one or more of its 
members are attorneys. My answer is in the affirmative. Chapter 633 specifically 
retained the provisions of § 1781 which state that "the municipal employer shall 
be represented by the school committee or its designated representative or 
representatives." The only change effected by c. 633 was to require approval by 
a city council or town meeting if a school committee should "designate" an 
attorney as its representative. When serving as a member of a school committee 
which acts as its own representative in collective bargaining negotiations, 
however, an attorney is not acting under a "designation" but rather as part of 
the committee and thus under the statutory powers conferred on him by virtue 
of his office. 

Question 3 

Your third question asks, in effect, whether under c. 633, a school committee 
may, without local legislative authorization, "designate" one of its own 
members, who is also an attorney, as an unpaid representative to conduct 
collective bargaining negotiations. No specific facts have been supplied to 
indicate the terms or scope of the "designation" as "representative." In 
particular, there is nothing to indicate that the member-attorney would be acting 
in any capacity other than as a member of the school committee. But even 
without such additional facts, I find nothing in c. 633 which would in general 
prevent a school committee from detailing one of its members, who happens to 
be an attorney, to serve without compensation as the committee's collective 
bargaining "representative." Chapter 633 is, in my judgment, directed rather at 



P.D. 12 91 

services that are not regarded as incident, whether inherent or by appointment, 
to membership on the committee. Uncompensated services of a member in 
conducting collective bargaining negotiations, for example, may be regarded as 
such an incident of membership. Without more particular facts as to what duties 
such a member might be delegated, however, I cannot offer a more specific 



Question 4 

Your fourth question, which is predicated on a negative answer to question 1 
or 2, does not, in view of my answers to those questions, require a reply. 

Question 5 

Your fifth question asks whether, absent local legislative approval, c. 633 
prohibits a school committee from retaining "a consultant, who is an attorney, 
to advise and assist its designated representative" in collective bargaining 
negotiations. No particular facts have been furnished which would indicate the 
context in which the proposed consultant services would be rendered. As a 
general proposition, however, I do not regard such services as coming within the 
scope of c. 633. Yet if in a given situation, the attorney-consultant were in fact 
"assisting" the designated representative in such a manner as to be actually a 
responsible sub-representative or co-representative, then his employment could 
be subject to the statute. Each case would be governed by its own particular 
facts. 

Question 6 

Your sixth question asks whether (if c. 633 does not prohibit the 
employment of an attorney-consultant) the compensation to be paid to him is 
"an expenditure for the support of the public schools to which General Laws 
Chapter 71, Section 34 applies?" 1 Expenditures which come within § 34 are 
those which are "necessary for the support of public schools." /?/«£ v. Woburn, 
311 Mass. 679, 695; Day v. Newton, 342 Mass. 568, 569-570. "Within a wide 
limit 'necessary' means reasonably deemed by the [school] committee to bear a 
relation to its statutory mandate." Day v. Newton, at p. 570. Such a 
determination is essentially a question of fact which may vary from case to case. 
So far as it is appropriate for me to express a general view, I am of the opinion 
that a school committee might reasonably conclude that a particular consultant's 
services are necessary to enable it to carry out its collective bargaining 
responsibilities. See William W. Drummey, Inc. v. City of Cambridge, 282 Mass. 
170, involving, under other statutory provisions, the appointment of a paid 
consultant to advise a school committee on repairs to school buildings to comply 
with local safety regulations. 

Question 7 

Your seventh question asks in effect whether local legislative authorization of 
the designation of an attorney under c. 633 must specify a particular attorney, 
the period of his employment and the scope of his duties. Without a given vote 
before me, I can again answer only in general terms. The statute does not make 
particular reference to the aspects to which you refer. I accordingly conclude 

General Laws c. 71, § 34 provides in pertinent part: "Every city and town shall an- 
nually provide an amount of money sufficient for the support of the public schools ..." 



92 P.D. 12 

that the matter lies within the discretion of the city council or town meeting, 
each of which may in authorizing a school committee to designate an attorney, 
impose such limitations as it considers appropriate. 

Question 8 

Your eighth question asks whether a school committee's designation of an 
attorney under c. 633 is "an expenditure for the support of the public schools to 
which General Laws Chapter 71, Section 34 applies?" As in my answer to your 
sixth question, I am of the opinion that, depending on particular circumstances 
such an expenditure could reasonably be determined by a school committee to 
be "necessary under section 34. I would suppose, moreover, that since a town 
meeting or city council would, under c. 633, have already approved the 
committee's designation of the attorney, there would be adequate support for 
the committee's determination. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



Number 25. January 10, 1969 

EXECUTIVE OFFICE FOR ADMINISTRATION 
AND FINANCE 

State House 

Boston, Massachusetts 02133 

Gentlemen: 

The former Commissioner of Administration has requested my opinion as to 
the method to be used in computing the compensation to be paid to former 
state employees who while receiving a pension have returned to active state 
service. The question arises as a result of St. 1968, c. 676, amending G.L. c. 32, 
§ 91. Subsection (b) of § 91 as thus amended is a general provision authorizing 
reemployment of former public employees, both state and local. Any such 
employee may be reemployed in public service "for not more than ninety days, 
in the aggregate, in any calendar year; provided that the earnings therefrom 
when added to any pension or retirement allowance he is receiving do not 
exceed the salary that is being paid for the position from which he was retired or 
in which his employment was terminated." 

The former Commissioner asked whether under the foregoing provisions a 
reemployed employee is entitled to - 

(1) Only that portion of the full weekly (or other pay period) 
salary of the position in which he is reemployed which when added 
to his pension, calculated in a like basis, will equal the salary, 
similarly calculated, currently being paid for his former position, 
or - 

(2) The full weekly (or other pay period) salary of the position in 
which he is reemployed, until he has received an amount which 
when added to his annual pension will equal the annual salary 
currently being paid for his former position. 

By way of illustration of the problem, the former Commissioner has given the 
case of a former employee of the Commonwealth who retired as a Principal 



P.D. 12 93 

Clerk and is receiving a pension of $60 a week, or $3,120 a year. He has been 
reemployed as a Junior Clerk and Stenographer, a position for which the regular 
salary is $96.80 a week. The present salary of his former position is $127.50, or 
$6,630 a year. 

Under the first of the two interpretations set forth above, the employee's 
weekly compensation for the 90 days of his reemployment would be $67.50 
computed as follows: 

1) Present weekly salary of former 

position $127.50 

Less 2) Weekly pension 60.00 

3) Maximum allowable weekly compensa- 
tion payable to former employee 
in new position $ 67.50 

Under the second of the interpretations the employee's weekly compensation 
would be $96.80, rather than $67.50, for the full 90 days of his reemployment, 
for a total of $1,742.40, a sum which when added to his annual pension of 
$3,120 would still be less than $6,630, the present annual salary of his former 
position. 

Although support can be found in the statute for each of the suggested 
interpretations, I am of the view that the first interpretation, namely, that which 
requires proration, is the correct one. The "salary that is being paid for the 
position from which he [the employee] was retired" is ordinarily fixed on a 
weekly (or in a few cases a monthly) basis. See G.L. c. 30, § 46 (the General 
Salary Schedule). Pensions are payable on a monthly basis and cease with the 
last full monthly payment due prior to a retired employee's death, with a pro 
rata additional payment allowable for any period of less than a full month. G.L. 
c. 32, § 13(b). Furthermore, since there is an absolute 90-day working limit, it 
seems unlikely that the Legislature intended that the earnings limit be based on a 
full annual period. I am therefore disposed to conclude that in enacting the 1968 
amendment to G.L. c. 32, § 91, the Legislature contemplated that all 
calculations should be made on the same base as pensions and salaries. 

In reaching this conclusion, I have not overlooked subsection (c) of § 91, as 
inserted by the 1968 amendment. Subsection (c) provides that each reemployed 
person shall "certify ... the number of days which he has been employed in 
any . . . calendar year and the amount of earnings therefrom, and if the number 
of days exceed ninety in the aggregate, he shall not be employed, or if the 
earnings therefrom exceed the amount allowable . . . , he shall return ... all such 
earnings as are in excess of [the] allowable amount." The foregoing provision 
may be regarded simply as a safeguard against possible overpayments and does 
not, in my judgment, have any controlling effect on the interpretation to be 
given to subsection (b). 

The former Commissioner has submitted for my consideration a proposed 
guideline to implement a prorated method of calculation. Since this is a matter 
that can be handled best on a counselling basis rather than by a formal opinion, I 
am referring it to my staff with instructions to assist in the formulation of the 
guideline in the light of the principle of proration set forth above. 

Very truly yours, 

ELLIOT L. RICHARDSON 

Attorney General 



94 P.D. 12 

Number 26. January 17, 1969 

MRS. HELEN C. SULLIVAN 
Director of Registration 
Department of Civil Service 

and Registration 
State Office Building 
1 00 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mrs. Sullivan: 

You have requested my opinion on the following questions: 

(l)"Under Section 21 of Chapter 142 of the General Laws, does the 
Board of State Examiners of Plumbers have the authority to 
inspect plumbing installations in buildings constructed under the 
authority of Chapter 773 of the Acts of 1960? 

(2)"If the answer to the above question is in the negative, then 
would the inspection of plumbing in these buildings fall under the 
jurisdiction of a local city or town in which the building is 
located?" 

The buildings referred to are those constructed by the University of 
Massachusetts Building Authority, "a body politic and corporate" established by 
St. 1960, c. 773, § 2, "which shall not be subject to the supervision or 
regulation ... of any department, commission, board, bureau or agency of the 
Commonwealth except to the extent and in the manner provided in [c. 773] ." 

General Laws c. 142, § 21 provides: 

"The [board of state] examiners [of plumbers] shall formulate rules 
relative to the construction alteration, repair and inspection of all 
plumbing work in buildings owned and used by the Commonwealth, 
subject to the approval of the department of public health, and all 
plans for plumbing in such buildings shall be subject to the approval 
of the examiners." (Emphasis supplied.) 

Question 1 , then, asks in substance whether the buildings of the University of 
Massachusetts Building Authority are "buildings owned and used by the 
commonwealth" for the purposes of the foregoing statute. 

In the past this Department has consistently ruled that buildings owned by 
public authorities are not "buildings owned and used by the Commonwealth" 
within the meaning of G.L. c. 142, § 21. Report of the Attorney General for the 
Year Ending June 30, 1958, p. 61 (Massachusetts Turnpike Authority). Report 
of the Attorney General for the Year Ending June 30, 1959, p. 67 
(Massachusetts Port Authority). Op. Atty. Gen. No. 66/67-24 (Massachusetts 
Port Authority). Op. Atty. Gen. No. 66/67-24 (Massachusetts Bay Transporta- 
tion Authority). While I have some doubts about these rulings, I believe it 
inappropriate at this time to overturn precedents which have presumably been 
relied upon by state and local officials, as well as plumbing contractors, for the 
past ten years. See Op. Atty. Gen. No. 66/67-89. Hence, I answer Question 1 in 
the negative. 

Turning to Question 2, I am of the opinion that plumbing in buildings of the 
University of Massachusetts Building Authority does not fall within the 
jurisdiction of the local authorities. It has long been established that local 
jurisdiction does not extend to plumbing in buildings of the Commonwealth. 1 
Op. Atty. Gen., p. 290. Report of the Attorney General for the Year Ending 



P.D. 12 • 95 

November 30, 1932, p. 86. Report of the Attorney General for the Year Ending 
November 30, 1934, p. IS. Report of the Attorney General for the Year Ending 
November 30, 1935, p. 38. These rulings were based on the broader proposition 
that "the general law made for the regulation of citizens must be held 
subordinate to [a] special statute regulating the use of the property of the State 
unless there is express provision to the contrary." Teasdale v. Newell & Snowling 
Construction Co., 192 Mass. 440, 443. Medford v. Marinucci Bros. & Co., 344 
Mass. 50, 55. In my opinion, the same reasoning applies to the property of the 
University of Massachusetts Building Authority, the powers of which are 
declared by St. 1960, c. 773, § 2 "to be the performance of an essential 
governmental function," and which is otherwise treated in the enabling 
legislation as comparable in importance to an agency of the State government. 

Moreover, Attorney General Brooke ruled in 1966 that plumbing in buildings 
of the Massachusetts Bay Transportation Authority was not subject to local 
jurisdiction. Op. Atty. Gen. No. 66/67-24. 1 concur in this conclusion and regard 
it as controlling here. 

It is therefore my opinion that plumbing in buildings of the University of 
Massachusetts Building Authority is subject neither to rules of the State Board 
of Examiners of Plumbers under G.L. c. 142, § 21, nor to local jurisdiction. 

Very truly yours, 
ELLIOT L. RICHARDSON 

A ttorney General 



Number 27. January 17, 1969 

HONORABLE ERNA BALLANTINE, Chairman 
Massachusetts Commission Against 

Discrimination 
41 Tremont Street 
Boston, Massachusetts 02108 

Dear Madam Chairman: 

You have requested my opinion on the following two questions concerning 
the investigatory powers of the Massachusetts Commission Against Discrimina- 
tion (MCAD) under the Fair Employment Practices Act, G.L. c. 15 IB, §§ 1-10. 

1. May the MCAD investigate an employer for engaging in 
unlawful practices regarding the hiring of members of minority 
groups when the complaint upon which the investigation is based 
does not name any particular individual as a person affected by such 
practices? 

2. Does the MCAD have the power to subpoena documents when 
investigating complaints of unlawful practices? 

From information that you have furnished to me, including information given 
at a meeting on December 19, 1968 at which you, your staff and members of 
my staff were present, it appears that your questions arise from the MCADs 
participation in programs of the Equal Employment Opportunity Commission 
(EEOC) in aid of state agencies. The EEOC, which was established by Title VII 
of the Civil Rights Act of 1964 (78 Stat. 241; 42 U.S.C. 2000a), has furnished 
you with certain data indicating the numbers and percentages of black persons 
and persons with Spanish surnames employed by particular employers. In at 
least one case the data indicates that an employer has taken no "affirmative 



96 • P.D. 12 

action" to seek out employees from the black and Spanish-speaking com- 
munities and has not submitted a job order to a city-wide anti-poverty program 
or a neighborhood employment office. 

General Laws c. 151B, § 4 provides: 

"It shall be an unlawful practice: 

1. For an employer, by himself or his agent, because of the race, 
color, religious creed, national origin, sex, age or ancestry of any 
individual, to refuse to hire or employ or to bar or to discharge from 
employment such individual or to discriminate against such individ- 
ual in compensation or in terms, conditions or privileges of 
employment, unless based upon a bona fide occupational qualifica- 



It has been suggested that the reference in the foregoing provision to an 
"individual" limits the MCAD's power of investigation to situations where a 
specifically named person is said to be the object of the unlawful practice. I do 
not concur in this interpretation. The statute is drawn in broad terms and 
expressly states in section 9 that it "shall be construed liberally for the 
accomplishment of the purposes thereof." 1 These include the prohibition, as set 
forth above, of discrimination based on characteristics common to broad classes 
of persons - "race, color, religious creed, national origin, sex, age or ancestry." 
Other prohibitions of G.L. c. 15 IB, § 4 against unlawful practices are framed in 
similarly broad terms. I regard the comprehensive nature of all these provisions, 
in the light of the statutory mandate that the act shall be liberally construed, as 
affording an adequate basis for initiating an investigation even though the 
complaint upon which the investigation is founded does not name a particular 
person as the object of an unlawful practice. Such an investigation is, moreover, 
not prohibited by the last paragraph of G.L. c. 15 IB, § 8. 2 An investigation is 
an important step in a longer process that may eventually lead to a formal 
hearing followed by findings and an order. G.L. c. 15 IB, § 5. Without adequate 
investigation this process would be seriously hampered and the realization of the 
statute's broad and humane purposes would be materially impaired. 

In short, then, I answer your first question in the affirmative. 

As for your second question, namely, the power of the MCAD to subpoena 
documents in connection with an investigation, I call your attention to section 3 

See also Local Finance Co. of Rockland v. Massachusetts Commission Against Discrimina- 
tion, 1968 Mass. Adv. Sh. 1287. 

Nothing contained in this chapter or in any rule or regulation issued by the commission 
shall be interpreted as requiring any employer, employment agency or labor organization 
to grant preferential treatment to any individual or to any group because of the race, color, 
religious creed, national origin, sex, age or ancestry of such individual or group because of 
imbalance which may exist between the total number of percentage of persons employed 
by any employer, referred or classified for employment by any employment agency or 
labor organization, admitted to membership or classified by any labor organization or 
admitted to or employed in, any aprenticeship or other training program, and the total 
number or percentage of persons of such race, color, religious creed, national origin, sex, 
age or ancestry in the commonwealth or in any community, section or other area therein, 
or in the available work force in the commonwealth or in any of its political subdivisions." 
Added by St. 1966, c. 361. 



P.D. 12 97 

of the Act which provides: 

"The commission shall have the following functions, powers and 
duties: 



"6. To receive, investigate and pass upon complaints of unlawful 
practices, as hereinafter defined, alleging discrimination because of 
race, color, religious creed, national origin, sex, age, or ancestry. 

"7. To hold hearings, subpoena witnesses, compel their attend- 
ance, administer oaths, take the testimony of any person under oath, 
and in connection therewith, to require the production for examina- 
tion of any books or papers relating to any matter under 
investigation or in question before the commission. The commission 
may make rules as to the issuance of subpoenas by individual 
commissioners." 

I regard the foregoing provisions as providing ample authority for the issuance 
of subpoenas in connection with an investigation. Subsection 6 plainly 
authorizes the MCAD to "receive, investigate or pass upon complaints." 
Subsection 7 implements subsection 6 by authorizing the subpoena of witnesses 
and the "production for examination of any books or papers relating to any 
matter under investigation." 

Very truly yours, 

ELLIOT L. RICHARDSON 

A ttorney General 



Number 28. May 13, 1969 

HONORABLE SAMUEL M. FLAKSMAN 

Executive Secretary of the 

Executive Council 
State House 
Boston, Massachusetts 02133 

Dear Mr. Flaksman: 

On behalf of the Executive Council you have requested my opinion as to 
whether Dr. John D. Coughlan continues to hold the positions of chairman and 
member of the Youth Service Board established by G.L. c. 6, § 65 and director 
of the Division of Youth Service established by G.L. c. 120, § 4A. With your 
request you have submitted copies of the following documents: 

(1) A letter from Dr. Coughlan to Governor Francis W. Sargent 
dated March 10, 1969 in which Dr. Coughlan stated, 

"I hereby submit my resignation from the positions of 
Chairman and Member of the Youth Service Board and 
Director of the Division of Youth Service, to take effect May 
10, 1969." 

(2) A letter from Governor Sargent to Dr. Coughlan dated March 
10, 1969 in which Governor Sargent stated, 

"I hereby accept your resignation tendered today from the 
positions of Chairman and Member of the Youth Service Board 
and Director of the Division of Youth Service, to take effect 



98 P.D. 12 

May 10, 1969." 

(3) A letter from Dr. Coughlan to Governor Sargent dated May 9, 
1969 (bearing a receipt stamp of the same date) in which Dr. 
Coughlan stated: 

"I hereby withdraw my resignation, which was to be 
effective on May 10th, as a member and Chairman of the 
Youth Service Board and Director of the Division of Youth 
Service. Since no successor has been appointed to take my 
place, the Division and the Board might be seriously impaired 
in emergency situations that might adversely affect the welfare 
of children. 

"In the absence of a legally appointed replacement, chaos 
could result, and I consider it my duty to withdraw my 
resignation and remain at my post." 

(4) A letter from Governor Sargent to Dr. Coughlan dated May 9, 
1969 in which the Governor stated: 

"I am in receipt of your letter dated May 9, 1969, in which 
you purport to withdraw your resignation, previously ac- 
cepted, as a member and Chairman of the Youth Service Board 
and Director of the Division of Youth Service. 

"I appreciate your concern that a successor be appointed, 
and am pleased to be able to tell you that a successor has been 
named by me and his name will be placed before the Executive 
Council on Monday morning, May 12, 1969, for approval. 

"I decline to accept your attempted rescission of your 
resignation." 

Based on the foregoing facts, the Council's specific questions are as follows: 

"1. Whether the resignation of John D. Coughlan as Chairman and 
Member of the Youth Service Board and Director of the 
Division of Youth Service and the acceptance of said resigna- 
tion are valid and of legal effect? 

"2. Whether there now exists a vacancy in the membership of the 
Youth Service Board?" 

I answer both the Council's questions in the affirmative. The law of 
Massachusetts clearly establishes that upon the Governor's acceptance of Dr. 
Coughlan's resignation "the rights of the parties were determined, although the 
date when it [the resignation] was intended to become effective was [a future 
date] ." Warner v. Selectmen of Amherst, 326 Mass. 435, 438. See also Martin v. 
City Manager of Worcester, 349 Mass. 760, 761. That the Governor was 
authorized to accept the resignation is clear. 3 Op. Atty. Gen. 1. 

The underlying considerations of public policy have been stated in State v. 
Grace, 113 Tenn. 9, 16-17, quoted with approval in Warner v. Selectmen of 
Amherst, supra, at page 439, and again in Campbell v. Boston, 337 Mass. 676, 
678: 

"Official robes cannot be put off and assumed at the pleasure of 
individuals or officers. Public interest requires that all possible 
certainty exist in the election of officers and the beginning and 
expiration of their terms, by law or resignation, and forbids that 



P.D. 12 99 

either should be left to the discretion or vacillation of the person 
holding the office or the officer or body having the appointing 
power." 

It follows that Dr. Coughlan's purported withdrawal of his resignation was of no 
legal effect, Warner v. Selectmen of Amherst, supra, at page 439, especially in 
view of Governor Sargent's refusal to accept the withdrawal, and that, no 
successor to Dr. Coughlan having been appointed, a vacancy now exists, and has 
existed since May 10, 1969, in each of the positions involved. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 29. May 14, 1969 

HONORABLE EDWARD J. RIBBS 

Commissioner of Public Works 

100 Nashua Street 

Boston, Massachusetts 02144 

Dear Commissioner Ribbs: 

You have requested my opinion as to the validity of your establishment of 
the following "line of authority" over the Public Works Building Police: 

Commissioner 

Associate Commissioner, Administrative Services 
Director, Division of Administrative Services 
Assistant Director, Division of Administrative 

Services 
Supervisor of Building Operations Motor Pool 

Section 
Building Superintendent 
Building Police Captain 
Building Police Officer 

In a departmental memorandum dated January 31, 1969, you declared that 
the foregoing "line relationships . . . have been in effect for a considerable period 
of time," although your department's Standard Operating Procedure (S.O.P.) 
which had been issued in 1967 and was not altered until the issuance of your 
memorandum of January 31, 1969 set forth a different order. Your memoran- 
dum also stated: 

"The Building Superintendent will continue to have full super- 
visory authority and responsibility over the Building Police Captains, 
the Building Police Officers and all security matters pertaining to the 
Public Works Building. Police Captains are to report directly to the 
Building Superintendent and are not to by-pass the Building 
Superintendent except in emergency situations when the Superin- 
tendent is not immediately available. 

"Building Police Officers are to report directly to their shift 
Captain and are not to by-pass the Captain except in emergency 
situations when the Captain is not immediately available." 

It is not necessary to review in this opinion the organization chart of your 
department as set forth in your S.O.P. Nor is it necessary to review in this 
opinion the various job specifications of the personnel whom you have placed in 



100 P.D. 12 

the line of authority over the Building Police. It is sufficient to note that under 
G.L.c. 16, § 1, "The commissioner shall be the executive and administrative 
head of the department and shall be responsible for administering and enforcing 
the provisions of [G.L. c. 16] relative to the department and to each division 
thereof under his control and supervision"; that under c. 16, § 2, "The 
commissioner shall assign to all officials, agents and employees of the 
department their respective duties ... He may also authorize the associate 
commissioners or any of them to exercise in his name any power, or to perform 
in his name any duty, assigned to him by law . . ."; and that under G.L. c. 16, § 
3, "The commissioner shall from time to time establish such bureaus, sections, 
and districts and other offices as shall be necessary for efficient and economical 
administration of the department, and, if necessary for such purpose may from 
time to time consolidate or abolish the same." 

It is plain from the foregoing provisions that the Commissioner, as the 
executive and administrative head of the department, "is given broad authority 
with respect to the appointment of employees the assignment of their duties, 
and their removal." Report of the Attorney General for the Year Ending 
November ?0, 1942, pages 105, 106. See also Report of the Attorney General 
for the Year Ending June 30, 1 946, page 69. 

I regard the establishment of a line of authority over the Public Works 
Building Police as a matter which falls within the Commissioner's broad 
administrative and executive powers, and I find no provision of law which 
diminishes these powers in the present case. General Laws c. 16, § 6, which 
provides that "For any criminal offense committed in any part of [the] public 
works building or the grounds appurtenant thereto the commissioner and his 
public works building police shall have the same power to make arrests as the 
state police officers" is entirely consistent with the authority of the Commis- 
sioner to establish a line of authority over the Public Works Building Police. 
Likewise consistent is the provision in G.L. c. 16, § 6, which declares that "the 
commissioner shall be responsible for the fitness and good conduct of all such 
police officers." 

In short then, your establishment of the indicated line of authority over the 
Public Works Building Police presents no genuine legal question but is simply a 
matter which falls within your executive and administrative responsibilities. 

Very truly yours, 

ROBERT H. QUINN 

A ttorney General 



Number 30. June 4, 1969 

HONORABLE HOWARD WHITMORE, JR., Commissioner 

Metropolitan District Commission 

20 Somerset Street 

Boston, Massachusetts 02108 

Dear Commissioner Whitmore: 

You have requested my opinion as to the correct method — straight time or 
time-and-one-half - of computing the payment to be made to those members of 
the police force of the Metropolican District Commission who are to receive 
"additional pay" in lieu of compensatory time off under G.L. c. 262, § 53C, as 



P.D. 12 101 

most recently amended by St. 1967, c. 286, l for so-called "court-time," that is 
for time spent in court as witnesses for the Commonwealth. It appears that your 
request arises out of certain collective bargaining negotiations that are now 
taking place between the MDC and its police. You state that "A great many 
witness fees to which members of our Police Force would otherwise be entitled 
have been waived by them pursuant to this statute. The total number of hours of 
compensatory time off for which they have thereby become eligible is such that 
I do not believe it could be granted without causing a serious personnel shortage. 
We have therefore determined, subject to the necessary appropriation, to give 
them 'additional pay' in accordance with the final portion of s. 53C." 

You then ask: 

"Must the additional compensation payable to police officers of 
the Metropolitan District Commission for time spent in attendance 
in court in lieu of witness fees therefor, pursuant to G.L. c. 262, s. 
53C, be computed at a rate no greater than their regular rate of 
pay?" 

In your request you have referred to certain statutes that deal with the 
payment of overtime, namely, G.L. c. 149, § 30B (providing for overtime pay at 
a time-and-one-half rate for certain employees other than members of your 
police force) and G.L. c. 92, § 62B (providing that members of the MDC police 
force "who perform service beyond their regular hours of service shall be 
compensated therefor as overtime service.") Reference might also be made to a 
provision that annually appears in the General Appropriation Act, stating that 
"no part of sums appropriated in [the Act] shall be available for the payment of 
overtime service to any employee of the commonwealth without prior written 
approval of such overtime by the commissioner of administration upon 
recommendation of the director of personnel and standardization, except where 
such overtime service is essential to replace the service of an employee necessary 
for the care of patients or inmates in institutions operated by the common- 
wealth." St. 1967, c. 414, § 6; St. 1968, c. 380, § 6. 

Your request for an opinion calls attention to G.L. c. 7, § 28 which 
authorizes the Director of Personnel and Standardization, subject to the 
approval of the Commissioner of Administration and the Governor, to make 
rules "which shall regulate . . . overtime compensation" for state employees. 
You state, however, that the Director has informed you that "there is nothing in 
the rules ... to authorize payment at [the time-and-one-half] rate" for members 
of the MDC police force for court-time under G.L. c. 262, § 53C. 

Your essential question, quoted above, therefore appears to be whether the 
MDC may give its police "additional pay" under G.L. c. 262, § 53C at the 

Any police officer, on duty at night or on vacation, furlough or on a day off, who at- 
tends as a witness for the commonwealth in a criminal case pending in a district court 
including the municipal court of the city of Boston, or any juvenile court, or the superior 
court, may, in lieu of the witness fee to which he would otherwise be entitled under sec- 
tion fifty-three, be granted such compensatory time off as shall be equal to the time 
during which he was in attendance at such court, but in no event shall less than three 
hours compensatory time off be granted him or, if such additional time off cannot be given 
becuase of personnel shortage or other cause, he shall, in lieu of said witness fee, be en- 
titled to additional pay for the time during which he was in attendance at such court, 
but in no event shall he receive less than three hours additional pay." For a discussion 
of certain aspects of this statute, see Op. Atty. Gen., 1967-68, No. 46. 



102 P.D. 12 

time-and-one-half rate notwithstanding the absence of an enabling rule under 
G.L. c. 7, § 28. Although your question concededly raises a valid legal issue, it 
appears inappropriate for me to express an opinion until there is a fuller 
exploration by the MDC through the Director of Personnel and Standardization 
of the possibility of securing the adoption of an appropriate rule. Only then will 
it be clear whether or not the question lends itself to an administrative 
resolution or necessarily presents a legal issue. 

The interrelationship of legal and administrative questions in this situation is, 
I am inclined to believe, typical of many of the questions that arise in collective 
bargaining matters. Further, it is certainly not the intention of the state 
employees collective bargaining statute that the Attorney General should act as a 
board of arbitration even before the parties have set their positions. There is, 
indeed, a real risk that this result might follow if he adopted a practice of issuing 
formal opinions in such cases. For that reason I intend to follow the general 
policy of not issuing formal opinions on questions that may arise in the course 
of collective bargaining negotiations. Although members of my staff will be 
available to give legal advice to state officials, I am inclined to the view that the 
legal questions which arise in collective bargaining negotiations are often so 
tentative and anticipatory, or so closely connected with essentially administra- 
tive procedures, that they are not appropriate for formal legal opinions by the 
Attorney General. I also believe that it is undesirable to hold up collective 
bargaining negotiations until a formal opinion of the Attorney General can be 
issued. Speed may often be of the essence; yet the questions may require 
considerable research by my staff and careful review and deliberation by me 
before an authoritative response can be given. I believe that these conflicting 
considerations can ordinarily best be resolved by assigning collective bargaining 
questions to members of my staff who will be available to provide legal advice 
and guidance in a manner that I am confident will be efficient and effective. 
This, at least for the present, will be my policy in such cases. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 31. June 9, 1969 

HONORABLE JOSEPH F. McCORMACK 

Chairman, Parole Board 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Chairman McCormack: 

You have requested my opinion as to whether a parole officer of your Board 
may look to the Commonwealth for payment of any damages to person or 
property that the officer may cause as a result of the officer's operation of his 
own car in the course of his official duties. 

A reply to your request requires an examination of several statutes. I refer 
first to G.L. c. 12, § 3B, which authorizes payment by the Commonwealth, 
upon approval of the Attorney General, of tort claims against employees of the 
Commonwealth in legal proceedings "arising out of the operation of a motor or 
other vehicle owned by the commonwealth. "(Emphasis supplied.) I refer also to 
G.L. c. 12, § 3C, which authorizes the payment of like types of motor tort 



P.D. 12 103 

claims which have not yet become the subject of legal proceedings. 

Payments of claims under § § 3B and 3C are made out of specific annual 
appropriations by the Legislature. See, for example, St. 1966, c. 411, Item 
0802-01; St. 1967, c. 414, Item 0802-01; St. 1968, c. 0821-0100. In each 
appropriation the particular item was described as follows: 

"For the settlement of certain claims, as provided by law, on 
account of damages by cars owned by the commonwealth [emphasis 
supplied] and operated by state employees; provided, that the 
comptroller shall transfer to the General Fund from the appropriate 
funds sums equal to the payments made under this item for claims 
against agencies whose appropriations are derived from other funds." 

It is clear that a state employee who is driving his own car is not 
entitled to the protection of G.L. c. 12, § § 3B and 3C and may not look to the 
annual appropriation item, cited above, for any reimbursement. General Laws c. 
12, § 3D may, however, afford some protection. Section 3D provides that the 
Attorney General may defend officers and employees of certain state agencies 
including the Departments of Mental Health, Public Health or Correction in 
lawsuits for "damages for bodily injuries or infections, physical or mental agony 
or pain, death of any person, or any damage to property of another 
on . . . hospital grounds, arising out of the operation of said departments ... if 
[the] officer or employee was at the time the cause of action arose acting within 
the scope of his official duties or employment . . . ."Subject to certain 
limitations, payments on any such settlement or on a judgment in the action 
may be made upon approval or certification of the Attorney General and the 
approval of the Governor. However, any such payment depends on "such 
appropriation as may be made by the general court for the purposes of [section 
3D] ." 

Section 3D appears to be broad enough to include actions for bodily injury or 
death caused by the operation by state employees, of the specified agencies, 
including the Department of Correction, of the privately owned vehicles of such 
employees in the course of their employment. (Actions for property damage 
appear to be limited to cases arising on "hospital grounds".) However, I am not 
aware of any general appropriation by the Legislature, as in the case of § § 3B 
and 3C, to pay judgments under § 3D. And I am not aware of any special 
appropriation therefor. Hence, any benefits under § 3D, at least at the present 
time, would have to await an appropriation. 

No other statute appears to be pertinent to the case of parole officers. 
Compare G.L. c. 8, § 4B, relative to indemnification of Capitol Police Officers, 
and G.L. c. 16, § 8, relative to indemnification of Public Works Building 
Officers. 

Very truly yours, 

ROBERT H. QUINN 

A ttorney General 



104 P.D. 12 

Number 32. June 24, 1969 

MRS. MABEL A. CAMPBELL 

Director of Civil Service 

State House 

Boston, Massachusetts 02133 

Dear Mrs. Campbell: 

You have asked my opinion as to whether certain positions in the 
Department of Community Affairs are exempt from the Civil Service Law and 
Rules. The specific positions are described in your letter as follows: 

"99840 - Administrative Officer, Commonwealth Service Corps 
Duties - Performs various administrative services including person- 
nel budget fiscal and office supply and supervises specialized areas, 
such as the federal contributions and performs other related work as 
required. 

"A96865 - Senior Bookkeeper 

Duties - shall be supervised by the Associate Director for Admin- 
istration and be responsible for all bookkeeping and accounting for 
the Department of Community Affairs. 

"99841 - Senior Bookkeeper 

Duties - Shall be supervised by the Associate Director for Admin- 
istration and be responsible for all bookkeeping and accounting for 
the Community Affairs Department. 

"A96871 - Senior Clerk and Stenographer 

Takes dictation in shorthand, transcribes and performs according to 
standard procedures of moderately complex clerical duties requiring 
a moderate degree of decision and a general knowledge of the 
functions of the programs." 

It is my opinion that the positions described are not exempt. 

Your question arises out of the manner in which the Commonwealth Service 
Corps was abolished by c. 761 of the Acts of 1968, and the powers, duties and 
employees of the Corps were transferred to the Department of Community Affairs. 
That abolition and transfer were accomplished by §§ 12, 13 and 14 of c. 761, 
which sections read as follows: 

"Section 12. All powers and duties, as existing immediately prior 
to the effective date of this act, of the division of housing, the 
division of urban renewal, the bureau of relocation, and the bureau 
of planning assistance within the department of commerce and 
development, and of any administrative unit within said divisions 
and bureaus, the commonwealth service corps, and the commission 
on aging are hereby transferred to, and shall be exercised and 
performed by, the department of community affairs established by 
section one of chapter twenty-three B of the General Laws. 

"Section 13. The division of housing, the division of urban 
renewal, the bureau of relocation, the bureau of planning assistance, 
and any administrative unit within such divisions and bureaus, as 
existing in the department of commerce and development immedi- 
ately prior to the effective date of this act, the service corps 
commission, the commonwealth service corps, the service corps 
advisory council and the commission on aging, and any administra- 
tive units existing within said commissions, boards or corps 
immediately prior to the effective date of this act, are hereby 



P.D. 12 105 

abolished. 

"Section 14. All officers and employees of any division, bureau, 
commission, corps, council, or any other administrative unit 
abolished by section thirteen of this act who immediately prior to 
the effective date of this act hold permanent appointment in 
positions classified under chapter thirty-one of the General Laws, or 
have tenure in their positions by reason of section nine A of chapter 
thirty of the General Laws, are hereby transferred to the department 
of community affairs established by section one of chapter 
twenty-three B of the General Laws, every such transfer to be 
without impairment of civil service status, seniority, retirement and 
other rights of the employee, without interruption of service within 
the meaning of said chapter thirty-one or section nine A of chapter 
thirty, and without reduction in his compensation and salary grade, 
notwithstanding any change in his title or duties made as a result of 
such transfer, subject, however, to the provisions of said chapter 
thirty-one and the rules and regulations established thereunder. All 
officers and employees of any such abolished division, bureau, corps, 
commission, council or other administrative unit who immediately 
prior to said effective date do not hold permanent appointment in 
such positions, or do not hold such tenure, are hereby transferred to 
said department of community affairs without impairment of 
seniority, retirement, and other rights, without interruption of 
service within the meaning of the said section nine A of chapter 
thirty, and without reduction in compensation and salary grade. 
Nothing in this section shall be construed to confer upon any officer 
or employee any rights not held prior to such transfer or to prohibit 
any subsequent reduction in compensation or salary grade not 
prohibited prior to such transfer. All questions regarding the 
identification of those persons who are officers or employees of any 
division, bureau or other administrative unit within the department 
of commerce and development, of the commonwealth service corps 
or of the commission on aging abolished by section thirteen of this 
act shall be determined by the director of personnel and standardiza- 
tion, with the approval of the commissioner of administration; 
provided that notwithstanding any other provisions of this act, the 
deputy commissioner of commerce and development in charge of 
the division of housing, transferred by this act, shall be directly 
responsible to the governor." 

Prior to the enactment of c. 761 of the Acts of 1968, appointment and 
removal of employees of the Commonwealth Service Corps was governed by 
G.L. c. 6, § 121. The second paragraph of that section provided that the Service 
Corps Commission should appoint a director, and not more than seven associate 
directors, and the director, in turn, with the approval of the commission, might 
appoint "such other employees, including experts and consultants, as he deems 
necessary to carry out the provisions of section one hundred and twenty- 
one . . . ." None of the above were subject to the Civil Service Law and Rules.* 

* In addition, § 121 provided that the Corps should consist of corpsmen, of various 
categories, none of whom were subject to the Civil Service Law and Rules. 



106 P.D. 12 

In enacting c. 761 of the Acts of 1968, the General Court placed the 
appointment and removal power of employees in the Department of Community 
Affairs in the hands of the Commissioner, with the proviso that appointments 
and removals were to be made, with an exception, to be discussed infra, in 
accordance with the Civil Service Law. That provision of c. 761 appears in the 
General Laws as § 8 of c. 23B, as follows: 

"The commissioner shall appoint and may remove all employees 
in the department. Unless otherwise provided by law, all such 
appointments and removals shall be made in accordance with 
chapter thirty-one. From time to time the commissioner may, 
subject to appropriation and the laws and regulations pertaining to 
the employment of consultants, employ such consultants as he may 
deem necessary. 

"In addition to deputy commissioners and directors of bureaus, 
the commissioner may appoint, with the approval of the governor, 
and may remove, an executive assistant, a chief counsel, and experts 
on urban affairs, public information, and intergovernmental rela- 
tions, to serve in the office of the commissioner, and such other 
officers, experts and assistants as he may deem necessary to carry 
out the work of the department; provided, however, that the total 
number of appointments to be made by the commissioner under this 
paragraph shall not exceed two. Any person holding appointment 
under this paragraph shall not be subject to the provisions of chapter 
thirty-one or section nine A of chapter thirty. 

"The commissioner may appoint and may remove persons to 
serve in positions the primary responsibility of which is the discharge 
of powers and duties vested in the commonwealth service corps, and 
such appointments and removals, notwithstanding the foregoing 
provisions of this section, shall be made as stated in section one 
hundred and twenty-one of chapter six." (Emphasis supplied.) 

The precise question presented for resolution, then, is whether persons who 
would fill the positions described in your letter would serve in positions "the 
primary responsibility of which is the discharge of powers and duties vested in 
the commonwealth service corps . . . ." In my opinion, they would not. The 
positions which you describe involve administrative, accounting or clerical 
duties. As such, they are concerned with routine, day-to-day administrative 
functions of the Department of Community Affairs and not the excecution of 
policy or the supervision of projects which relate directly to the powers and 
duties of the Commonwealth Service Corps. Those powers and duties are set 
forth in G.L. c. 6, § 121, and it is unnecessary to quote them here. It is 
sufficient to note, however, that the powers and duties enumerated relate to the 
substantive functions of the Corps. Although administrative, clerical and 
bookkeeping positions are necessary to the proper functioning of any agency of 
government, such positions cannot, in my opinion, be categorized as "positions 
the primary responsibility of which is the discharge of the powers and duties 
vested in" the agency. 

My interpretation of G.L. c. 23B, § 8, as applied to the positions which you 
describe, is reinforced by an examination of the scope of the exemption from 
the Civil Service Law and Rules which obtained prior to the enactment of c. 761 
of the Acts of 1968. That exemption included the director, associate directors, 
and "such other employees, including experts and consultants ..." as were 



P.D. 12 107 

necessary to carry out the duties of the Corps. (Emphasis supplied.) That 
statutory language conveys a sufficiently clear legislative intent, in my opinion, 
that only those positions most closely associated with the execution of policy 
were to be exempted. The wording of G.L. c. 23B, § 8 has continued and 
clarified this legislative restriction. 

In conclusion, then, it is my opinion that the positions in the Department of 
Community Affairs which you describe in your letter are not exempt from the 
Civil Service Law and Rules. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



108 P.D. 12 



NDEX TO OPINIONS 



Agency and Topic Opinion Page 

Administration and Finance, Executive Office for: 
Compensation to Pensioned, Former State 

Employees 25 92 

Agriculture, Department of: 

Milk Processing Plant 6 38 

Racing License Application 15 62 

Alcoholic Beverages Control Commission: 

Authority to Establish Maximum Retail Prices 21 80 

Implementation of Sixty-Day Credit Law 11 46 

Schedule of Minimum Consumer Prices 10 45 

Board of State Examiners of Plumbing: 

Inspection of Plumbing in Public Buildings 26 94 

Boston State College: 

Trustee Authority 14 55 

Buildings, State Superintendent of: 

Municipal Police Authority on State Property 18 

Civil Service, Division of: 

Board of Registration in Pharmacy 4 36 

Board of State Examiners of Plumbers 26 94 

Boston Parking Meter Supervisors Exemption to 

Civil Service Law 23 86 

Department of Community Affairs Subjection to 

Civil Service Law 32 104 

Community Affairs, Department of: 

Positions Subject to Civil Service Law 32 104 



P.D. 12 109 

Agency and Topic Opinion Page 

Education, Department of: 

Municipal Collective Bargaining Representatives 24 88 

Teacher Placement Registration Form 2 30 

Lowell Technological Institute: 

Trustees' Power to Forgive Tuition 12 47 

Massachusetts Commission Against Discrimination: 

Investigatory Powers 27 95 

Metropolitan District Commission: 

Compensation for Witness Duty 30 100 

Water Pollution Control 3 31 

Parole Board: 

Parole Officer's Personal Tort Liability 31 1 02 

Pharmacy, Board of Registration in: 

Code of Professional Conduct 4 36 

Public Health, Department of: 

Code of Professional Conduct for Pharmacy 4 36 

Hospital Medical Records 7 

Public Safety, Department of: 

Parole Officer's Personal Tort Liability 31 40 

State Police Eligibility to Bargain Collectively 20 76 

Public Welfare, Department of: 

Old-Age Assistance Liens 17 66 

Public Works, Department of: 

Eminent Domain for "Country Road" 1 26 

Line of Authority Over Public Works Building 

Police 29 99 

"Trailer" and "Towing Device" 16 64 

Registry of Motor Vehicles: 

Indemnification of Employee 22 85 

"Trailer" and "Towing Device" 16 64 



110 P.D. 12 

Agency and Topic Opinion Page 

Retirement, Board of: 

Retired Board Member 9 43 

Veterans' Pensions 19 75 

Veterans' Widows' Pensions 13 52 

Secretary of the Commonweal th: 

Referendum Public Policy Question 5 37 

State Colleges, Division of: 

Trustee Authority 14 55 

State Racing Commission: 

Application for Racing License 15 62 

Treasurer and Receiver General: 

Retired Member of Retirement Board 9 43 

Veterans' Pensions 19 75 

Veterans' Widows' Pensions 13 52 

Youth Service Board: 

Effective Date of Accepted Resignation 28 97 

Water Pollution Control, Division of: 

Massachusetts Clean Waters Act 3 31 

Worcester County Commissioners: 

Eminent Domain for County Road 1 26 



JUN 1974