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

Public Document No. 12 



W\]t Qlommonuifaltlj of MaHHarl^us^tta 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1971 




Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent. 

Vl-S-74- KM 1 16 Estimated Cost Per Copy: $2. 



1547 



5*1 



Public Document 



No. 12 



E\)t Olommouiiiealtl] af Massarljusftta 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1971 




Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent. 

l\l-N-74-l(Mll6 Eslimated Cost Per Copy: $2.48 



oil)? QJammoniuealtlj of Maasarliuaetts 

Boston, December 1, 1971 

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, 1971. 

Respectfully submitted, 

Robert H. Quinn 

Attorney General 



P.D. 12 



ull^p (EammumuFaltli nf ilafiBarl|UfiPttB 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
ROBERT H. QUINN 

First Assistant Attorney General 
Joseph J. Hurley 

Assistant Attorneys General 



Ruth 1. Abrams 
Mark 1. Berson 
W. Channing Beucler 
Daniel T. Brosnahan 
Thomas F. Browne!! 
Wayne A. Budd 
Laurence R. Buxbaum 
Eugene R. Capuano 
Cliarles E. Chiase 
Lawrence P. Cohen'" 
iVlark L. Cohen'- 
Nei! Colicchio" 
Robert J. Condlin^ 
George T. Contalonis 
Albert F. Cullen'" 
Bernard J. Dwyer 
George P. Foley- 
David B. Gittelsohn 
Joe! S. Greenberg" 
Robert L. Herman'' 
Charles E. Inman 
John J. Irwin, Jr. 
Daniel J. Johnedis 
Harold J. Keohane 
James X. Kenneally^ 
James P. Kiernan 
Donald Koleman 
Daniel B. Kulak 
John P. Larkin 



Carter Lee 
Arthur P. Loughlin 
Alan G. Macdonald' 
Peter F. Macdonald 
Charles M. MacPhee 
Bernard J. Manning 
Walter H. Mayo IH 
James P. McCarthy 
Gregor L McGregor' 
Charles K. Mone 
Robert Y. Murray 
David G. Nagle, Jr. 
Lawrence H. Norris 
Henry F. O'Connell 
Timothy F. O'Leary" 
Joel Pressman 
Harvey B. Rowe^ 
Edward L. Schwartz 
William E. Searson 
Thomas A. Sheehan" 
George W. Spartichino 
George A. Stella 
Dennis M. Sullivan 
Robert L. Suprenant 
Roger W. Tippy' 
David B. Vigoda'"' 
John J. Ward' 
Donald J. Wood"' 
Christopher H. Worthington 



Assistant Attorney General; Director Division of Public Charities 

James J. Kelleher 



P.D. 12 



Assistant Attorneys General Assigned to Department of Public Works 

Leonard A. Bonfanti" David A. Leone 

Richard R. Caples Fred J. Matera" 

Robert W. Coughlin John H. O'Neil 

Thomas J. Crowley Paul E. Ryan 

John P. Davey^ Herbert L. Schultz 

Samuel R. DeSimone Richard L. Seegel 

Richard T. Dolan Sidney Smookler 

Stephen A. Ferguson^ David S. Tobin 

Paul A. Good John J. Twomey' 

James J. Haroules F. Dale Vincent, Jr." 
Richard W. Hynes 

Assistant Attorneys General Assigned to 

Metropolitan District Commission 

Roger L. Aube James P. McAllister 

George Jacobs Frederick J. Sheehan 

Assistant Attorneys General Assigned to the 

Division of Employment Security 

Joseph S. Ayoub Hartley C. Cutter 

Assistant Attorney General Assigned to the Veterans' Division 

John F. Houton' 

Chief Clerk 
Russell F. Landrigan 

Assistant Chief Clerk 
Edward J. White 



'Appointed June 1970 
-Appointed July 1970 
•■'Appointed August 1970 
^Appointed October 1970 
■'Appointed January 1971 
■^Appointed ;\pril 1971 



■Appointed May 1971 

Appointed June 1971 

'Terminated September 1970 
'"Terminated December 1970 
"Terminated January 1971 
'-Terminated February 1971 



P.D. 12 7 

STATEMENT OF APPROPRIATIONS AND EXPENDITURES 

For The Period 
July 1, 1970 — June 30, 1971 

A/)f)r(>/)ri(ili(>ns 

0810-0000 Administration $2.397,489.1 1 

0810-6613 Consumer F^iotection Research and Pilot Program 117,500.00 
0810-6614 Organized Crime Investigation Training and Pre- 
liminary Design of Technical Assistance Center... 14,850.00 

082 1 -0 1 00 Settlement of Claims 1 58,000.00 

Total $2,687,839.11 

E.xpcuclitKres 

0810-0000 Administration $2,145,710.81 

0810-6613 Consumer Protection Research and Pilot Program 80,739.68 
0810-6614 Organized Crime Investigation Training and Pre- 
liminary Design of Technical Assistance Center... 12,000.00 

0821-0100 Settlement of Claims 158,000.00 

Total $2,396,450.49 

Income 
0801-40-01-40 Fees — Filing Reports $17,090.00 

Charitable Organizations 
0801-40-02-40 Fees — Registration 4,350.00 

Charitable Organizations 
0801-40-03-40 Fees — Professional Fund Raising 70.00 

Council or Solicitor 
0801-69-99-40 Miscellaneous 740.93 

Total $22,250.93 

Financial Statement Verified (under requirements of C. 7. S 19 GL) 
November 10. 1971 

By Joseph T. O'Shea 

For the Comptroller 
Approved for Publishing 

M. Joseph Stacey 

Comptroller 



8 P.D. 12 

W\^t (Enmmoiiuiealtli of IHaHsacI|usettfl 

DEPARTMENT OF THE ATTORNEY GENERAL 

Boston, December 1. 1971 

To the Honorable Senate and House of Representatives: 

Pursuant to the provisions of section 1 1 of chapter 12 of the General 
Laws, as amended, I herewith submit my report for the fiscal year end- 
ing June 30, 1971. 

Introduction 

My third Annual Report as Attorney General of the Commonwealth 
of Massachusetts encompasses the fiscal year from July 1, 1970 to June 
30, 1971. 

In a year characterized by increasing workloads for each one of the 
Office's divisions, notable accomplishments sometimes tend to obscure 
the vital, day-to-day effort made in innumerable areas on behalf of the 
citizens of the Commonwealth. Nevertheless, without detracting from 
the importance of the individual reports included herein, 1 would like to 
draw attention to the establishment of a new Division of Environmental 
Protection within the Office of the Attorney General. As I mentioned in 
my Annual Report of last year, there was at that time a growing recogni- 
tion that state and local governments must begin to respond to the then 
recently-acknowledged peril of pollution and its multifaceted threat to 
our environment. The ancient common law framework for attacking pol- 
lution and polluters needed ''shoring up"" and revitalization. In addition, 
specialization was called for in light of the rapidly increasing caseload 
and the diversity of disciplines involved in dealing with environmental 
problems. I believe that the establishment of this new Division, with 
several Assistant Attorneys General devoting full time to environmental 
matters, is now and will prove to be a timely and justified response to a 
worsening situation. 

The Office has also continued to be active in implementing the pas- 
sage of legislation designed to protect the Commonwealth's consumers, 
and, in another area of vital importance, to place further controls on 
drugs and other dangerous substances. (A list of fourteen acts and re- 
solves proposed and enacted by the 1971 legislature are included in the 
Appendix to this report.) 

Administrative 

The Administrative Division was engaged continuously throughout 
the fiscal year rendering advisory legal services to various state agencies 
and boards of professional registration and licensure. Fifty-two formal 
opinions of the Attorney General were prepared by the Division during 
the year, and, in addition, one hundred and one informal opinions were 



WD. 12 



issued over the signatures of assistant attorneys general. Twenty-nine 
formal opinions were piepared with respect to the provisions of the con- 
flict of interest law, chapter 268A of the General Laws. 

The practice of assigning members of the Division to act as liaison 
with the state agencies and boards of registration has worked well. The 
number of requests for formal opinions oi' the Attorney General has 
been reduced as a result of instituting this system, although the number 
of opinions issued increased over fiscal year 1970. This increase is at- 
tributable to questions which arose as a result of the 1970 state elections 
and a concerted effort to reduce the backlog of requests for formal opin- 
ions. The Division has intensified its efforts to encourage agencies and 
state officials to resolve legal questions short of requests for formal opin- 
ions, and considerable headway was made in that direction during the 
year. 

As was noted in the annual report for fiscal year 1970, litigation in the 
federal and state courts occupies the greater part of the time of the Divi- 
sion. Approximately one hundred and seventy-five cases were opened 
dining the fiscal year, none of which can be called routine. Many of 
them involved constitutional issues of great significance. As in past 
years, litigation in the federal courts increased quantitatively and in va- 
riety of issues. The decisions of the Supreme Court of the United States 
in Younger v. Harris, 401 U.S. 37, and companion cases, may have a 
braking effect on the quantitative escalation of such cases, but there re- 
main areas of litigation in the federal system which are unaffected by the 
Younger decision. The increase in the number of federal suits in the area 
of welfare rights is due, in large part, to the feeling on the part of pros- 
pective plaintiffs that the federal courts provide a more sympathetic 
forum than the state courts. 



The Division participated in several cases heard by three-judge courts 
dealing with challenges to various provisions of the state election laws 
during the fiscal year. Those cases challenged the requirement for sign- 
ing nomination papers, the number of signatures needed, and the re- 
quirement that not more than one third of the signatures come from any 
one county. Because state elections were held in November, several ad- 
ditional cases were commenced in the state courts on questions relating 
to election procedures. 

The Division prepared and filed two appeals with the Supreme Court 
of the United States during the fiscal year. The first sought review of a 
decision of the United States District Court invalidating the state loyalty 
oath. and. in June, the Supreme Court noted probable jurisdiction in that 
case. The second sought review of a decision of the same district court 
invalidating the one-year residency requirement for voting in the Com- 
monwealth. Although the one-year requirement was deleted by the vot- 
ers at the November election, effective in 1971, there remained a 
number of impounded ballots which had been cast by persons who did 
not meet the one-year requirement when they voted in 1970. Resolution 



P.D. 12 



of that issue will depend upon the Supreme Court's decision in a case 
involving a similar requirement in Tennessee. 

In the state courts, the Division participated in a score of cases in- 
volving challenges to provisions of the state insurance statutes and rate 
orders issued by the Commissioner of insurance. The Supreme Judicial 
Court struck down one provision of the no-fault automobile insurance 
statute passed in 1970 which mandated across-the-board decreases in 
premium rates for all automobile insurance coverages, but the court did 
uphold the law as constitutional in all other respects. Suits against the 
Commissioner of Public Welfare required the attention of two Assistant 
Attorneys General on a full-time basis. The number of petitions for judi- 
cial review of decisions of the Civil Service Commission remained fairly 
constant, and the Division was instrumental in effecting substantial revi- 
sions in the statute governing review of such decisions. 

Finally, members of the Division briefed and argued four appeals in- 
volving major decisions of the Department of Public Utilities with re- 
spect to gas rates in Boston and in certain north-shore communities. The 
records in those four cases were substantial, and the briefs and oral ar- 
guments were a credit to the Department. The cases represented the 
first challenges to D.P.U. rate orders in many years and will have im- 
portant precedential effects. 



Citizens' Aid Bureau 

The character of the work of the Citizens' Aid Bureau has not 
changed considerably during the last year. However, several innova- 
tions are worthy of mention. 

The Bureau has been developing an intern program with high school 
students, specifically through the Copley Square High School in Boston, 
whereby the students work several hours per week in the Bureau as part 
of their social studies course. The students have also been placed in 
several other divisions of the Attorney General's office. It is hoped that 
this program will be expanded during the current year. In addition, we 
are in the process of establishing a program with colleges and univer- 
sities whereby students majoring in social work may be given course 
credits for doing their practicum in the Citizens' Aid Bureau. This was 
done on an experimental basis with a student from Penn State during the 
past summer and was highly successful inasmuch as the work of the 
Bureau is a good training ground for social workers. 

In conjunction with their work at the Citizens' Aid Bureau, students 
from the Harvard Divinity School have undertaken a program of travel- 
ling to major cities in the Commonwealth and informing ecumenical and 
private groups of the services available through the Citizens' Aid 
Bureau. 

The workload of the Bureau, including Spanish speaking complaints, 
has remained constant at about 60 inquiries and complaints per day. 



P.D. 12 11 



Civil Rights and Liberties 

A good portion of the work and effort of the Division during the past 
year has centered upon the problem of police-community relations. 
Throughout the nation the relationship of law enforcement agencies to 
various segments of society such as the Black, the Spanish-speaking and 
the young has become an increasingly sensitive area. This has been true 
licre in the Commonwealth, as is evidenced by a series of clashes be- 
tween the police and various groups. It is gratifying to note that the rela- 
tionship between the Office of the Attorney General, local law enforce- 
ment authorities, and community groups has improved in recent months. 
Much of the success which has been achieved must be attributed in 
some measure to the "Uniform Procedure Recommended For The In- 
vestigation and Disposition of Citizens' Complaints Concerning Police 
Officers in the Commonwealth of Massachusetts."' This procedure 
drafted by the Division and promulgated by the Attorney General has 
received wider acceptance from local police departments than was origi- 
nally anticipated. Significant improvement has been noted in the quality 
of the response from this Division to requests for investigations into al- 
legations of police misconduct. Principal among those departments tak- 
ing swift and affirmative action was the Boston Police Department Of- 
ficers. In virtually every instance, investigations were initiated by that 
Department and action was taken when necessary. 

Another positive step taken in the area of police-community relations 
was the commencement of a training program for both policemen and 
community members initiated in New Bedford, a. city which experienced 
a good deal of disruption during the summer of 1970. This program, 
conducted by the American Institutes for Research, Washington, D.C., 
is being tested in New Bedford under the general guidance of this Divi- 
sion, and should it prove successful, steps will be taken to implement 
the program throughout the Commonwealth. Initial funding for the pro- 
gram was obtained from the Committee on Law Enforcement and the 
Administration of Criminal Justice, chaired by the Attorney General. 

Further, this Division has taken responsibility for the revision of the 
popular pamphlet 'Tf You Are Arrested." This pamphlet will soon be 
distributed to various civic and social action organizations as well as 
schools and churches throughout the Commonwealth, in order better to 
inform citizens of their rights under the Constitutions of the United 
States and the Commonwealth of Massachusetts. 

Another major responsibility of this Division is representing the Mas- 
sachusetts Commission Against Discrimination MCAD. The Division 
appears in court to seek enforcement of the various powers and decrees 
of that Commission in matters concerning discrimination in housing, 
employment, education and public accommodations. This past year 
found attorneys of the Division making several appearances in court to 
establish the right of the MCAD to subpoena witnesses and information 
to assist in its deliberations on complaints involving discrimination. 



P.D. 12 



A very important function of the Division is investigating complaints 
of deprivation of first amendment rights, especially the rights of freedom 
of speech and of the press. To that end the Division consults with local 
and regional law enforcement authorities and advises them whether cer- 
tain materials alleged to be obscene are constitutionally protected. While 
formerly the work of the Division had been confined to books, today 
movies, magazines, and other materials alleged to be obscene are re- 
viewed by the Division in an effort to determine their constitutionality 
and legality. In addition, attorneys from the Division act as counsel to 
the Massachusetts Obscene Literature Control Commission and process 
complaints and inquiries from the general public regarding obscene ma- 
terials. 

Another major responsibility of the Division deals with drafting and 
lobbying for legislation which would broaden the civil rights and liberties 
of all citizens of the Commonwealth. While there has been some success 
in this regard in the past session of the General Court, there remains 
much to do in the future regarding legislation of this nature. 

In addition to the foregoing, this Division handles many general com- 
plaints and inquiries in respect to civil rights and liberties, not the least 
of which concern problems which have arisen as a result of the passage 
of the Twenty-Sixth (26th) Amendment to the United States Constitu- 
tion, namely, the right of eighteen year old citizens to vote. Following a 
recent opinion of the Attorney General which liberally interpreted this 
Amendment, much time has been spent with local election officials con- 
sidering the legal implications of the Amendment and the Attorney 
General's opinion. 

In line with the foregoing responsibilities, on many occasions during 
the past year, attorneys assigned to this Division addressed businesses, 
civic groups, community organizations and various other parties in- 
terested in the field of civil rights and civil liberties. 



Consumer Protection 

Between July I. 1970 and June 30, 1971 , the Division continued to ex- 
perience the substantial growth in workload that characterized it in the 
past two years. The average number of consumer complaints reported 
per week reached 250, 150% over that of the preceding year. In excess 
of seven hundred thousand dollars was returned to consumers who had 
lost money or property because of unfair or deceptive sales or lending 
practices. In addition, work valued at several hundred thousand dollars 
was furnished to consumers as a result of action taken by the Division. 

An average of three hundred inquiries and complaints are investigated 
by the division each week. In most cases, the division is able to arrange 
for a refund, a repair, or a replacement product or service for every con- 
sumer who files a complaint. 

In 1971, several new consumer bills were filed and enacted to supple- 
ment the existing state consumer protection statutes, which are among 



P.D. 12 13 



the most progressive in the country. Regulations under the Consumer 
Protection Act were promulgated late in June 1971, spelling out specific 
prohibitions under that law. 

The wide scope of the Massachusetts Consumer Protection Act and 
the regulatory powers of the Attorney General under that law. as well as 
the enactment of new legislation outlawing additional unfair or deceptive 
practices, have allowed the division to investigate and enforce the law in 
a number of important areas. 

In the area of litigation, many new suits were brought to stop unfair 
practices. Several injunctions were obtained against automobile dealers 
who had turned back odometer readings in vehicles offered for sale. Ad- 
ditional actions were brought against computer dating firms, gasoline 
stations, and pyramid sales organizations for deceptive sales practices. 

Over the year some two hundred meetings were held with representa- 
tives of all types of businesses to discuss advertising and merchandising 
methods. Through these informal meetings, substantial modifications 
were made to assure consumers full and fair disclosure of the quality and 
adequacy of merchandise being offered for sale. 

The volume of consumer complaints and the addition of new con- 
sumer laws have created a need for educating the public about the provi- 
sions of these statutes. Consequently, a weekly ''Consumer News" col- 
umn is written and released to some two hundred daily and weekly 
newspapers throughout the Commonwealth. A set of eight Consumer 
Information Leaflets has been prepared illustrating several of the laws in 
cartoon form. Over 1 million of these leaflets were distributed during 
1971. Staff members of the division appeared on television and were 
heard on radio: others addressed various fraternal and service organiza- 
tions, schools, and other interested groups. 



Contracts 

The Contracts Division represents the Commonwealth and its de- 
partments and agencies in litigation involving contractual matters. A 
major portion of this litigation — and certainly the most time-consuming 
and complex — deals with highway and building construction cases be- 
fore auditors and justices of the Superior and Supreme Judicial Courts. 

Further, the Division represents state agencies in court actions to en- 
force their contracts and leases and represents awarding authorities in 
actions opposing the issuance of injunctions which would prohibit the 
award of contracts. In addition to its litigation role, the Division advises 
some eighty state agencies as to the form and scope of their contracts 
and leases, and renders advice to such agencies with respect to competi- 
tive bidding practices and procedures. 

The Division reviews in excess of .3,000 contracts per year as to legal 
form, and generally has more than 100 cases pending at any given time. 
Most of these cases, which are tried in the courts on a regular basis, 
involve claims by general contractors for extra work for the completion 



14 P.D. 12 



of contracts, alterations to contracts, and disputes over amounts owed 
to either the Commonweahh or its contractors for work performed. 

Additionally, the Division conducts investigations throughout the 
Commonwealth involving alleged irregularities in public bidding or con- 
struction matters. The Division is also seriously involved in the drafting 
of remedial legislation concerning public construction and competitive 
bidding. 



Criminal 

The Criminal Division is divided into three departments: Investiga- 
tions and Trials, Appeals and Writs, and Organized Crime. 

The Investigations and Trials Section has the power to initiate in- 
quiries into any criminal activities in which there is reason to believe a 
violation of law exists. Frequently, investigative leads are developed by 
other state agencies and subsequently referred to this section for further 
investigation and eventual prosecution. 

Some of the more intensive investigations undertaken during this year 
involved: (1) a major probe into alleged irregularities by the City of 
Somerville in no-bid contracts; (2) an exhaustive inquiry into allegations 
concerning a lack of security precautions in the printing of the Massa- 
chusetts Bar Examination; and (3) an investigation into Welfare frauds 
perpetrated by Department of Public Welfare workers and recipients. 

As a result of the investigation into irregularities in welfare disburse- 
ments, indictments have been returned against some departmental per- 
sonnel and complaints made against a score of recipients and indepen- 
dent contractors for submitting false vouchers. In many of these cases, 
fines and restitution have resulted. 

The Division had noteworthy success in the prosecution of cases in- 
volving environmental pollution. For the first time in the history of the 
Commonwealth, indictments were returned for violations of the Massa- 
chusetts pollution laws. As a result of one indictment, a heavy fine was 
levied against a Waltham trucking firm for polluting the Charles River 
with poisonous chemicals. In another action, a New Bedford man was 
sentenced to prison when he was found guilty of criminal negligence for 
permitting 170,000 gallons of oil to escape into Falmouth Harbor. 

Two members of the State Board of Registration of Real Estate Bro- 
kers and Salesmen, along with an independent broker, were found guilty 
of accepting and soliciting bribes for real estate licenses. The investiga- 
tion that led to the indictment of the three revealed the selling of 
broker's and salesmen's licenses to persons who did not take examina- 
tions or who had criminal records. 

in other prosecutions conducted by the Division, a fraudulent scheme 
involving down payments on homes to be constructed resulted in the 
conviction of a Hanover builder and his business partner on charges of 
grand larceny. A Boston surgeon was fined and received a suspended 
sentence for his participation in a statewide fraudulent insurance claims 
ring. 



P.D. 12 15 



As part of a continuing plan of assistance to the state's District Attor- 
neys, experienced prosecutors from the Division were sent into the 
counties to aid in the tight against crime at the local level. This effort 
resulted in several convictions on narcotics charges and crimes as- 
sociated with attempts by addicts to procure the money necessary to 
support their habit. 

The operations of the Division took on international aspects when two 
members of the staff travelled to Israel in order to extradite a North 
Attleboro man who allegedly had stolen $160,000 from a Bristol County 
finance company. With the cooperation of the United States Depart- 
ment of State and the Israeli Ministry of Justice, the accused was re- 
turned to the Commonwealth to face criminal charges. While extradition 
is by definition a demand upon another jurisdiction for the return of a 
fugitive who has fled the Commonwealth, rendition requests arrive from 
other states asking the arrest of an accused who has taken shelter in 
Massachusetts. Division personnel examine the rendition documents, 
hold a hearing, and advise the Governor on these matters. Recently, a 
rendition request was honored by sending Joe "Barboza" Baron to 
California to stand trial for murder. 

The Division also performs educational and public relations functions. 
Legal memoranda drafted by the staff are distributed to other law en- 
forcement agencies to explain the impact of recent court decisions upon 
police procedure. A summary of the year's legislation which affects 
criminal law is prepared and sent to every police department in the state. 
Staff attorneys frequently speak before and assist public service groups, 
police organizations, and local police departments. In addition, hun- 
dreds of inquiries by concerned citizens are telephonically processed 
throughout the year. 

Recent United States Supreme Court decisions that have recognized 
the expanding concept of prisoners" rights, and new interpretations of 
the constitutional rights accorded defendants in criminal trials, have re- 
sulted in an enormous increase in the number of extraordinary writs 
sought in both state and federal courts. While the majority of the peti- 
tions brought by those accused of a crime and those convicted of crimes 
have little merit, some involve complex constitutional questions. 

A case having national implications, Karalexis v. Byrne, was success- 
fully argued in the United States Supreme Court by Attorney General 
Quinn. The Court decided that federal courts must abstain from interfer- 
ring with state criminal cases unless there is evidence of both bad faith 
in the prosecution of and irreparable injury to a defendant. 

Other important appeals brought by the Division before the Supreme 
Court related to issues involving trial dc novo, sentencing procedures, 
and the imposition of the death penalty. 

The Organized Crime Section of the Division had a very busy year. 
As a result of court-authorized electronic surveillance, the largest coor- 
dinated attack on organized gambling installations in Massachusetts his- 
tory was carried out on September 24. 1970. Simultaneous raids by more 



P.D. 12 



than 100 State Police Officers in Barnstable, Essex. Middlesex and Suf- 
folk Counties resulted in the arrest of 56 persons on gaming charges. In 
Worcester and Hampden County, 25 bookmakers were arrested based 
on investigations conducted by the Organized Crime Section. 

In May, 1971, four men were indicted by the Middlesex Grand Jury 
on a charge of conspiracy to commit arson in connection with a fire 
which destroyed the contents of a Woburn furniture store. The evidence 
presented to the grand jury stemmed from an investigation by the Or- 
ganized Crime Section, the Woburn Police Department, and the State 
Fire Marshall's Office. 

Investigators from the Organized Crime Section recovered stolen se- 
curities valued at over $80,000 and presented evidence to a Suffolk 
County Grand Jury in connection therewith resulting in indictments 
against two individuals on charges of receiving stolen goods. 

Based on evidence developed by the Organized Crime Section, four 
individuals were indicated in Suffolk County on charges of larceny, 
forgery, and uttering. The evidence presented to the grand jury showed 
a fraudulent scheme through which a Massachusetts bank suffered a loss 
of $27,000. 

As a result of an investigation by the Organized Crime Section, evi- 
dence was presented to a Suffolk County Grand Jury resulting in the in- 
dictment of an organized crime figure for failure to file Massachusetts 
Income Taxes for the years 1964 to 1969 inclusive. This was the first 
indictment for income tax violation ever obtained in the Commonwealth. 
During the course of the fiscal year, the Organized Crime Section re- 
ceived two federal grants from the Federal Law Enforcement Assistance 
Administration. One grant provided for the creafion of a Technical As- 
sistance Center which would serve as a central repository for highly 
sophisticated equipment to be used in combating organized crime. This 
equipment will be made available to all the police departments and all 
the district attorneys in the Commonwealth. A further grant was re- 
ceived from the same source to conduct an Organized Crime Training 
School for local police. Both of these programs are in the process of im- 
plementation. 

This section continues to cooperate closely with other state and fed- 
eral agencies and during the past year conducted 61 investigations for 16 
other "states. Evidence of an interstate narcotics ring was furnished to 
the Federal Bureau of Narcotics and Dangerous Drugs resulting in the 
arrest and conviction of 26 individuals. 



P.D. 12 



17 



FISCAL PERIOD JULY 1, 1970 
THROUGH JUNE 30, 1971 



Period 

July I. 1970-July 31. 1970 
August I. 1970- August 31. 1970 
September I. 1970-Sept. 31. 1970 
October 1. 1970-October 3 1. 1970 
November I. 1970-Nov. 30. 1970 
December 1. 1970- Dec. 31. 1970 
January 1. 1 97 1 -Jan. 31. 1971 
February 1. 1971-Feb. 28, 1971 
March I. 1971-Mar. 30. 1971 
April 1. 197 1 -Apr. 30. 1971 
May 1. 1971 -May 31. 1971 
June 1. 1971 -June 30. 1971 

TOTALS: 



Received 


Approved 


Rejected 


295 


289 


6 


452 


433 


19 


270 


266 


4 


271 


268 


3 


130 


128 


-> 


305 


301 


4 


170 


170 





215 


211 


4 


170 


169 


1 


270 


264 


6 


240 


225 


15 


301 


286 


15 



3089 



3010 



79 



Drug Abuse 

Since its inception in September 1969, the Drug Abuse Section has 
continued to cooperate on a statewide basis in the battle against drug 
abuse in Massachusetts. At the present time the Drug Abuse Section is 
working on two fionts: educational and legislative. 

In the realm of education, the Section conducts a two- week Drug 
Abuse Education School which deals with all aspects of the drug prob- 
lem. Originally designed for the training of law enforcement officials, the 
course has been expanded to include probation officers, nurses, school 
administrators, and members of related disciplines. The course has been 
offered at colleges and universities for college credit. An Advanced 
School is available for police officials for training in informant develop- 
ment and advanced search and seizure techniques. The Basic School in- 
cludes lectures and discussions on the psychological, pharmacological, 
and sociological aspects of drug abuse; federal and state laws and cur- 
rent legislation; organized crime involvement; and treatment and re- 
habilitation procedures. 

An outgrowth of the police training has been a regionalization pro- 
gram whereby graduates of the Drug Education School set up county 
agencies of drug intelligence networks for gathering information about 
drugs, drug users, and drug suppliers. A study is in process to examine 
the merits of a computerized system through which intelligence data will 
be programmed and made readily available to narcotics agents thi-ough- 
out the Commonwealth. 

The Drug Abuse Section is vitally involved in formulating school pol- 
icy statements concerning drug abuse. Working closely with the Massa- 



P.D. 12 



chusetts Department of Education and the Massachusetts College of 
Pharmacy, the Section is preparing a model drug policy for schools 
throughout the Commonwealth. 

The staff of the Drug Abuse Section and a Speakers Bureau of qual- 
ified persons in the field are assisting in the campaign to overcome the 
widespread misconceptions and ignorance within which drug abuse 
flourishes. They conduct panel discussions and lectures for parents, stu- 
dents, civic and professional groups, educators and legislators. 

A Citizens Corps Against Drug Abuse, including several prominent 
sports figures, is also instrumental in the dissemination of drug informa- 
tion. In programs designed specifically for young people, these celeb- 
rities try to present to students an alternative to drug use. 

As part of its education program, the Section publishes TRACKS, a 
bi-monthly newsletter on drugs, and two pamphlets, MASSACHU- 
SETTS DRUG LAWS and DRUG ABUSE REFERENCE CHART. 
These materials are available upon request to educators, students, pro- 
fessionals, and citizens who wish to inform themselves about the drug 
problem. 

The Section has availed itself of systematic research in the area of 
drug abuse. It has taken part in the activities of a technical scientific 
group which includes experts from the fields of medicine and psychiatry 
who make recommendations regarding various complex aspects of the 
drug problem. The Attorney General, in his efforts to encourage mean- 
ingful research, has granted permission for several studies on marijuana 
to be conducted by qualified investigators. 

In the realm of legislation, the Section has been called upon to explain 
and interpret statutory provisions regarding drugs. During the 1971 legis- 
lative session the Attorney General has been actively involved in draft- 
ing a recodification of the Commonwealth's drug laws prepared in coop- 
eration with the Special Legislative Commission investigating drug 
abuse. The Section has undertaken a project to analyze the drug laws 
and legislation of other states in order to prepare proposals for amending 
present laws. 

The Section has recently received a $50,000 grant from the Committee; 
on Law Enforcement Administration of Criminal Justice. The grant was 
awarded for the purpose of publishing a drug training manual and provid- 
ing technical assistance for law enforcement officers. 



Eminent Domain 

The Division is responsible for all actions involving the acquisifion 
and disposal of land by the Commonwealth. This responsibility encom-| 
passes all matters to which the Commonwealth is a party in the Land 
Court. In addition to representing Massachusetts in land damage actions 
brought under Chapter 79 of the General Laws, the Division has the re- 
sponsibility of handling cases arising out of -the application of Chapter 
130, relating to conservation and water pollution wherein the Common- 
wealth claims damages. 



D. 



19 



Under the above mentioned chapters, the Division acts as attorney 
tor state agencies, such as the Department of Public Works, Metropoli- 
tan District Commission, The Board of Trustees of State Colleges, Uni- 
\ crsity of Massachusetts, Southeastern Massachusetts University. De- 
partment of Natural Resources, Water Resources Commission, and 
C ommunity Colleges. 

The Division's attorneys are called upon daily to render informal 
iipinions to various state agencies authorized by law to exercise the 
power of eminent domain. This process insures that all land takings by 
slate agencies will be in conformity with the laws of Massachusetts and 
the Constitution of the United States. 

As a condition precedent to the exercise of eminent domain, the tak- 
ing agency must order an appraisal of the property to be taken, and vote 
an award of damages based on at least one appraisal. On the trial level 
the Division becomes actively involved only after the land takings are 
complete and the landowner, dissatisfied with the award made by the 
taking agency, has petitioned the Court for additional compensation. At 
this point the office of the Attorney General assumes full control and 
responsibility. 

At the beginning of fiscal 1971 the Division had 1,217 cases pending in 
the Superior Court, and 95 cases pending in the Land Court. During the 
\ear, 236 cases were added in the Superior Court and 310 closed, leav- 
ing a total of 1,143 cases pending. In the Land Court, 55 cases were 
added and 57 closed, leaving a total of 93 cases pending at the end of the 
tlscal year. 

Under the Attorney General's direction, the Division seeks to 
achieve a just and reasonable solution to each dispute as efficiently as 
possible, while at the same time making a conscious effort not to sac- 
nTice competence for speed. The philosophy behind the approach is to 
a\oid undue delay which may lead to increased and unnecessary ex- 
pense to the Commonwealth, as well as inconvenience and hardship for 
the petitioner. To this end, procedures have been formulated within the 
Division to insure that all cases are thoroughly analyzed, prepared and 
ready for trial at the earliest possible moment. 

Although the interest of the Division.is necessarily focused to a large 
extent on matters relating to real property, it is by no means restricted to 
the acquisition and distribution of land alone. In addition to drafting and 
niing legislation dealing with the problem of pollution of tidal and tide- 
land waters, the Division is currently engaged in the preparation of ar- 
guments to be brought before the Supreme Court of the United States. 
The case. United States v. Maine, et. al., involves the claim of Massa- 
chusetts and other states along the Eastern Seaboard that the seaward 
Jurisdiction of a sovereign state extends beyond the three mile limit. In 
conjunction with this, the Division organized the Atlantic Seabord Con- 
terence of Attorneys General, which Attorney General Quinn now 
chairs. The case is of great significance not only because it is brought 
within the original jurisdiction of the Supreme Court (in the history of 



20 P.D. 12 



the United States there have been but thirty-five instances of such juris- 
diction), but also because of the potential benefit to the involved states 
which would be derived from the reported quantity of natural resources 
located within the Continental Shelf. 

With respect to its role as counsel for the various state agencies, the 
Division provides the Real Estate Review Board with a legal advisor 
who aids the Board in takings of government-owned land for highway 
purposes. In such cases Division attorneys are called upon to testify be- 
fore the executive council before land damage payments are approved. 
Also, a member of the staff serves as the Attorney General's represen- 
tative to the Commission on Eminent Domain which reviews proposed 
legislation in this field. 

Employment Security 

The Division works closely with the Massachusetts Division of Em- 
ployment Security. It prosecutes employers who are delinquent in pay- 
ing employment security taxes and employees who file and collect on 
fraudulent claims for unemployment benefits. The vigorous prosecutions 
made by this Division have resulted in the recovery of substantial sums 
of money for the Commonwealth. 

During the fiscal year, 813 cases were handled by this Division. 558 
cases were on hand at the start of the year and 255 new cases were re- 
ceived during the year, of which 191 were employer tax cases and 64 
were fraudulent claims cases. 

280 cases were closed during the fiscal year, of which 225 were em- 
ployer tax cases and 55 were fraudulent claims cases, leaving a balance 
of 533 cases on hand at the end of the fiscal year. Monies collected to- 
taled $170,793.78 from employer tax cases and $35,275.50 from fraudu- 
lent claims cases, making a total recovery oi $206,069.28. At the begin- 
ning of the fiscal year there were no cases pending in the Supreme Judi- 
cial Court; none were added during the year. 

The Division is charged with the duty of pursuing those individuals 
found to be in violation of the Employment Security Law. During this 
fiscal year the Division waged an energetic and forceful program in 
handling all cases referred to it for criminal prosecution. At the same 
time the Division has maintained the policy of giving an erring indi- 
vidual, corporation or business entity every opportunity to make a set- 
tlement out of court. Concentrated office conferences are conducted 
with the principals involved to determine whether or not criminal pro- 
ceedings should be initiated. Criminal prosecutions are brought against 
those failing to cooperate with the terms of agreement made by this of- 
fice, but only after they have had an opportunity to discuss the matter 
thoroughly. During this fiscal year, 120 complaints involving 784 counts 
of tax evasion, totaling $21 1 ,959.82 in monies due the Commonwealth, 
were brought against 96 employers. Complaints involving 575 counts of 
larceny were brought against 36 individuals found collecting unem- 



P.D. 12 21 



ployment benefits under fraudulent claims totaling $32 J 30. 00 in monies 
taken from the Commonwealth. 

In addition, 13 investigations were made into the whereabouts of de- 
fendants who had defaulted appearance in outstanding court actions 
brought by the Division. Eighty percent of me mvestigations resulted in 
success, and warrants were served upon the defendants. Of particular 
note was an investigation involving the Columbia Car Corporation. The 
Human Rights Division of the Boston Mayor's Office, representing a 
group of Spanish speaking workers employed by the corporation, con- 
tended that the firm was engaged in unlawful employment practices. In- 
vestigatory hearings resulted in the matter being referred to the Depart- 
ment of Labor and Industries to enforce the fair labor practice laws. 

Because of increased prosecutions resulting in more convictions, sub- 
stantial sums of money were collected in fiscal 1971. Employers and 
employees were made aware of the penalties and restrictions imposed by 
the courts, and a marked decrease in the number of overall violations 
was a direct result. Employers realized that state taxes must be paid; 
claimants have voluntarily returned money owed to the Commonwealth. 



Environmental Protection 

On January 20, 1971, Attorney General Quinn created the Division of 
Environmental Protection by administrative order. It is hoped that the 
General Court will act favorably on legislation filed in this session for- 
mally to create the division. 

English anti-pollution statutes date back to at least the thirteenth cen- 
tury. The development of a substantive body of law, however, did not 
follow. Although Massachusetts' pollution statutes often serve as mod- 
els for other states, today we are sometimes left with legal doctrines de- 
veloped in past eras, in response to markedly different demands, which 
frustrate creative redress of environmental injury. The Attorney Gen- 
eral has limited statutory and traditional common law authority to pre- 
\ ent or remedy public nuisances, but modern technology and the seri- 
ousness of modern environmental crises far outstrip the usefulness of 
this legal tool. The present state regulatory structure which is called 
upon to react to society's new environmental awareness is spread among 
several state agencies. The authority of the Attorney General to prose- 
cute violations of the regulations of these agencies on his own initiative 
is not clear. The bill which would formally create the Division of En- 
vironmental Protection would clarify this authority. At the same time it 
would not jeopardize the present close working relationship between the 
Division and those state agencies which the Division represents. 

Just prior to the creation of the Division the caseload was approxi- 
mately sixty, then handled by the Division of Health, Education and 
Welfare. It was this sizeable and demanding caseload, a massive in- 
crease over the six cases pending when Attorney General Quinn as- 
sumed office in January 1969, which led the Attorney General to dis- 



22 P.D. 



solve the Division of Health, Education and Welfare, transfer all non- 
pollution functions to the Administrative Division, and delegate respon- 
sibility for all environmental matters to a Division devoted exclusively 
to representation of the Commonwealth's environmental needs. No 
court decisions adverse to the Commonwealth have been encountered. 
Since its creation the Division has successfully closed twenty-two cases, 
thirteen dealing with air pollution, eight with water pollution, and one 
with wetlands protection. 

In the past five months the Division has grown to six assistant attor- 
neys general responsible for a caseload of almost eighty pending or 
prospective court cases. The Division serves as in-court legal counsel 
for several state agencies charged with abating pollution, including the 
Bureaus of Air Use Management, Community Sanitation, and Water 
Supply and Water Quality in the Department of Public Health, and Di- 
visions of Water Pollution Control, Fish and Game, Marine Fisheries 
and Conservation Services in the Department of Natural Resources. On 
behalf of these environmental agencies, the Division regularly seeks in- 
junctions from the Superior Court against municipalities and companies 
which have violated state laws or regulations designed to protect the en- 
vironment. 

In these cases the most difficult task for the Division is to accommo- 
date the goal of preserving and developing the Commonwealth's vast in- 
dustrial capacity with the goal of making certain that pollution is not an 
inheritance of the next generation. Another troublesome element is 
posed by the common financial plight of our cities and towns. Absent an 
awareness of what the law requires and where financial assistance can 
be found, protecting the environment can cause a city or town a massive 
financial burden. 

Where the law is clear and where the law is violated, however, court 
action is required. In the majority of enforcement cases handled by the 
Division, the order involved (for example, requiring construction of a 
sewage treatment facility or abatement of unnecessary smoke pollution) 
is not challenged. Not only is judicial review of the agency order rarely 
sought under the Administrative Procedure Act, Mass. G. L. c. 30A. 
but in many cases, especially regarding water pollution, the order is one 
agreed to by the offending municipality or company. As a result, the 
Commonwealth's burden in enforcement proceedings is considerably 
eased. 

The active caseload of the Division presents an array of environmen- 
tal problems which demand skill in criminal and civil law enforcement, 
federal and state law, municipal and corporate finance and many scien- 
tific disciplines. Air pollution and water pollution demand the largest 
portion of the Division's attention. Presently there are thirty active air 
pollution cases (eighteen against industry, twelve against municipalities) 
and twenty-six water pollution cases (ten against industry, sixteen 
against municipalities). Court acfions necessary to protect Massachu- 
setts wetlands number fifteen, all against individuals or companies. As 
well, the Division is responsible for eight additional court or administra- 



P.D. 12 23 

live matters involving atomic energy licensing proceedings, conspiracy 
by automobile manufacturers against development of anti-pollution 
measures, regional solid waste disposal crises, and chlorination. 
Other recent Division actions include: 

— advising the Supreme Judicial Court on the constitution- 
ality of state legislation banning SSTs from Massachusetts 
airports. 

— commencing a statewide study of the crisis in municipal 
financing of air and water pollution treatment measures. 

— intervening on behalf of the Commonwealth in Atomic 
Energy Commission proceedings on applications by Vermont 
Yankee Nuclear Power Corporation and Boston Edison 
Company, respectively, to operate nuclear power stations at 
Vernon, Vermont (on the Connecticut River) and Plymouth, 
Massachusetts. 

— enlisting the support of the New England Attorneys 
General and petitioning the Federal Trade Commission re- 
garding proposed trade regulations on labeling of the phos- 
phate content of detergents. 

— securing from Suffolk Superior Court contempt citations 
against two municipalities, Grafton and Blackstone, which 
had violated court decrees ordering construction of pollution 
treatment plants. 

— conducting a residential survey of the physical and men- 
tal effects of exposure to airplane noise on persons living in 
twelve communities near Logan International Airport. 

Industrial Accidents 

The Industrial Accidents Division serves as legal counsel to all the 
departments of the Commonwealth, in all workmen's compensation 
cases involving state employees. Pursuant to G. L. c. 152, section 69A. 
the Attorney General must approve all payments of compensation bene- 
fits and disbursements for related medical and hospital expenses in com- 
pensable cases. In contested cases this division represents the Com- 
monwealth before the Industrial Accident Board and in appellate mat- 
ters before the Superior Court and the Supreme Judicial Court. 

During the fiscal year 8,509 accident reports were filed regarding state 
employees, an increase of 1,192 reports, or approximately 169^ over 
fiscal 1970. This increase represents a continuing trend that is reflected 
by an overall 35% increase in accident reports since fiscal 1967. The Di- 
vision reviewed and approved 1,144 new claims for compensation in 
lost-time disability cases, and 72 claims for the resumption of com- 
pensation. 

The Division appeared for the Commonwealth on 586 formal assign- 
ments at Industrial Accident Board hearings and in the courts, repre- 



24 P.D. 12 

senting an increase of 158 appearances or approximately 37% over the 
prior fiscal year. The Division's staff members also participated in an 
indeterminate number of informal appearances at the accident board in- 
cluding those required in the review of new claims for evaluation and 
approval by the Attorney General, and for the continuing review of ac- 
cepted cases. 

Disbursements by the Commonwealth for state employees" industrial 
accident claims, including accepted cases, board and court decisions and 
lump sum settlements, for the period July 1, 1970 through June 30, 1971. 
were as follows: 

Incapacity compensation (including 

awards for disfigurement and loss 

of bodily function) $1,920,154.25 

Medical Expenses 713,690.11 

Total of all disbursements $2,633,844.36 

In its capacity as custodian of the "second injury fund" under Sec- 
tions 65 (General Fund) and 65N (Veterans" Fund) of chapter 152, the 
Division represents the Commonwealth before the Industrial Accident 
Board regarding petitions filed by insurers and self-insurers for reim- 
bursement out of this fund. Also, in connection with this fund the Divi- 
sion has responsibility for enforcing the obligation of insurers and self- 
insurers to pay into the fund in fatal industrial accident cases where the 
issue of liability is disputed. Special emphasis was placed upon this role 
during the fiscal year. The fund closed with an unencumbered balance of 
$573,744.13, a net increase of $162,200.59 over the previous fiscal year 
which insures that the fund will continue to function at no expense to the 
taxpayers. 

Pursuant to section 1 1 A, (Acts of 1950, c. 639, as amended) the Divi- 
sion represents the Attorney General as a sitting member on the Civil 
Defense Claims Board. During the fiscal year over 25 claims were acted 
upon awarding compensation to unpaid civil defense volunteers who 
were injured while in the line of their volunteer training and duties. 



Public Charities 

During the fiscal year, the Division reviewed 2,286 probate accounts 
of trustees, 702 petitions for probate of wills, 491 accounts of executors, 
administrators w.w.a., etc., and 296 miscellaneous probate matters such 
as petitions to sell real estate and appoint trustees. In addition, 205 new 
petitions for public administration were dealt with and 235 pending pub- 
lic administration cases were closed. A total of $178,209.45 was paid 
into the State Treasury as escheats from public administration and other 
estates. 

Annual financial reports and accounts filed under M. G. L.. c. 12, § 
8F totalled more than 5,132. The processing of 405 applications for Cer- 



P.D. 12 25 



tificates to Solicit Contributions from the Public for Charitable Purposes 
resulted in the issuance of such Certificates. 

Because of the amendment to M. G. L.. c. 59. § 5. Third (b) effected 
by St. 1970, c. 219, § 1 providing that exemption of charitable organiza- 
tions from local real estate taxes shall be available only if the organiza- 
tion has tiled annual financial reports with the Division as required by 
M. G. L., c. 12, § 8F, many organizations which had not been filing 
with the Division have started to do so. 

The provision of the 1969 Federal Tax Reform Act which requires 
"private foundations" to file copies of their federal returns with the Di- 
vision has also increased the number of organizations filing. This in- 
crease has overburdened the Division's staff and has required that the 
staff be increased and more space and facilities be furnished. 

Many court cases resulted from the provisions of the 1969 Federal 
Tax Reform Act which imposed income taxes on "private foundations." 

Several court cases during the fiscal year reflected the adverse effects 
on charitable institutions of great increases in the cost of operation re- 
sulting from inflationary economic conditions and changes in social con- 
ditions. 

We assented to a decree for the dissolution of the St. Francis Ydvicr 
Hii^'h School in Concord and the transfer of property to the Boston 
Archdiocese. Assumption Preparatory School in Worcester, another 
victim of the high cost of operation of secondary parochial schools, was 
authorized to transfer its property. 

In connection with the secularization of Merrimac College, assent was 
given to transfer the title to the Chapel and other buildings to the Augus- 
tinian Brothers. 

Petitions to effect changes in order to minimize taxes under the Tax 
Reform Act include, among others, those brought by the trustees under 
the will of Lotta Crahtree. Other similar matters related to the Dana 
Foundation, the Oaks Foundation, the James W. Sherman Trust u/d., 
and the Georf^e Sherman Trust irjw. Amendments to the Attlehoro 
Trust, community trust, to meet the requirements of the Tax Reform 
Act were approved. 

To avoid taxes and various reporting requirements, petitions were 
brought for the approval of transfers of trust funds to operating charities. 
The funds of the Trustees of the Consumptives Home in Boston were 
transferred to the Deaconess Hospital; those of the Waltham Training 
School for Nurses to the Waltham Hospital; and those of the 
Huntington Institute for Orphan Children. Inc. to the Boston Children's 
Services Association. 

In proceedings relating to the over $1,000,000 Dorothy Melcher 
Sneath Foundation for scholarships in private secondary schools, a de- 
cree was entered relieving the trustees from a provision for the accumu- 
lation of one-half the income annually. Under the decree the possibility 
of higher taxes under the Tax Reform Act was avoided and larger sums 
were made available for scholarships. 



26 P.D. 12 



The Division co-operated with a bar group in drafting a bill to enable 
"private foundations" to meet the requirements imposed by the Tax Re- 
form Act. as a condition to lower rates of taxation on income. The At- 
torney General was a co-petitioner on the bill. The measure was enacted 
by Chapter 367 of the Acts of 1971, and the provisions are now Chapter 
68A of the General Laws, entitled "Limitations Upon The Conduct of 
Certain Trusts and Corporations Having Charitable Interests." 

Extensive work was done to collect material for a revised edition of 
the 1965 Directory of Foundations. However, it was not possible to ob- 
tain financial support for a new edition from foundation sources nor an 
appropriation from the Legislature to defray the costs of editing and pub- 
lishing a new and revised printed edition of the Directory. It is planned, 
therefore, to use the material as effectively as possible by preparing and 
issuing a supplement to the Directory listing the larger "broad purpose" 
foundations established since 1965, and also listing the larger trusts, 
such as those providing funds for scholarships. 



SPRINGFIELD OFFICE 

The Springfield Staff consists of three Assistant Attorneys General, one 
Deputy Assistant Attorney General, three Special Assistant Attorneys 
General, one Special Assistant Attorney in Consumer Protection who 
also works with the Massachusetts Commission Against Discrimination, 
an Investigator in Consumer Protection, one Trooper in Criminal Divi- 
sion and two administrative personnel. The office handles matters of 
concern to the Attorney General in the Commonwealth's four Western 
Counties: Hampden, Hampshire, Berkshire and Franklin. The Office's 
primary concerns are eminent domain, consumer protection and criminal 
matters. With the exception of consumer protection matters, the origin 
of the Office's workload is the Attorney General's Boston office. 

The following land damage cases were returned to Boston as com- 
pleted by settlement or trial. 
HAMPSHIRE 

1 

BERKSHIRE 



FRANKLIN 



HAMPDEN 

19 



Fifteen more cases were settled in Hampden County which only need 
to have settlement papers typed and filed in Court before they can be 
returned to Boston. 



P.D. 12 27 



Listed below are other cases which have been worked on in the Spring- 
field office. 

Industrial Accident Cases 
9 cases returned as completed 
2 cases pending 

Collection Cases 

2 cases returned as completed 

Tort Cases 

7 cases returned as completed 

Contract Cases 

2 cases returned as completed 

Victim of Violent Crime Cases 

3 cases pending 

Pollution Cases 
1 case pending 

H.E.W. Cases 

One returned to Boston as completed. 

Seven rendition hearings have been handled by the Office. The 
Trooper in the Criminal Division is constantly investigating criminal of- 
fenses and cooperates with all law enforcement agencies in the area. 

In the field of consumer protection, the following cases were dealt 
with by the Office since the first of the year: 

OPENED 

876 cases 

CLOSED 

825 cases 

PENDING 

205 cases 

SAVINGS 

$113,955.52 

(The closed and pending figures include cases that were carried over 
from the previous year.) 

Consumer protection is available 24 hours a day, seven days a week. 
The office has averaged 30 telephone calls per day. 

Aside from the Office's three main concerns, the Office becomes in- 
volved in varied and divergent aspects of the law. Town Councils fre- 



28 P.D. 12 

quently call regarding zoning problems, liquor licensing, and conflicts of 
interest. The Office assists the Department of Welfare upon request. 
The Office staff attends night meetings of Town Selectmen when re- 
quested to do so in order to explain Public Health Laws, State Building 
Requirements, and other legal matters. The staff fulfills speaking en- 
gagements in cooperation with the Drug Abuse Education Program and 
in the area of consumer protection. 

Our total correspondence, outside of consumer complaints, averages 
90 contacts per month, and ranges from explaining uniforms support, 
school prayers, pornography, and the Vietnam War, to birth control, 
abortion, civil liberties, and rights of privacy. The Better Business 
Bureau of Springfield has and continues to engage in the practice of tel- 
ling all of their complainants to call our office. On some days this prac- 
tice results in many calls not within our jurisdiction. It has been our 
practice, however to reply and answer all calls within 24 hours whenever 
possible. 

Torts, Claims, and Collections 

The Division represents the Commonwealth, its officers and em- 
ployees in tort actions arising from the performance of their official 
duties. The actions range from motor vehicle actions, malicious prosecu- 
tion and arrest, false imprisonment, medical malpractice, assault and 
battery, libel and slander, road defects, deer damage claims and moral 
claims, to civil rights cases raising constitutional issues. The Division 
also represents the Registrar of Motor Vehicles and the Motor Vehicle 
Appeal Board in matters of judicial review under the Administrative 
Procedure Act. 

The bulk of the cases involve motor vehicle accidents. During the 
tlscal year 243 cases were tried or settled and $147,569.81 was paid to 
claimants as compared to 262 and 272 cases tried or settled, with 
$111,481.51 and $129,437.80 paid respectively for the years 1969 and 
1970. Also. 17 highway defect claims and 91 moral claims were disposed 
of at a cost of $3^536.24 and $7,839.47 respectively. 

Under Chapter 258A, an act to provide for the compensation of Vic- 
tims of Violent Crimes, the Division has the responsibility for investigat- 
ing and reporting to the courts on all claims for out-of-pocket loss for 
medical bills, loss of earnings or support resulting from injuries received 
by victims of violent crimes. One hundred and twenty-five claims were 
filed in 1971 as compared to 105 and 195 for the fiscal years 1969 and 
1970 respectively. 

The Collections Section of the Division recovered $476,607.73 on be- 
half of the Commonwealth for the fiscal year as compared to $326,989.37 
and $265,525.21 for the fiscal years 1969 and 1970. Principally, the Sec- 
tion handles claims for the care and support of patients at state hospitals 
and for damage caused to state property. 

The following is a table of cases reflecting the Division's work: 



P.D. 12 



29 



Depcirliiu'iU.s 

Dept. of Mental Health 
Dept. of Public Health 
Dept. of Public Works 
Metropolitan District Commission 
Dept. of Natural Resources 
All other State Departments 

TOT.AL 



Recovered 

$I44,?2().55 
40.125.49 
44.516.91 
18.705.64 
200.000.00* 
28.739.14 

$476,607.73 



Cases 

62 
196 
336 

88 

1 

!71 

854 



NOTF: 421 — number of completed claims (paid in full). 

NOTE: 1.155 — number of claims referred to Collections Section by various departments 

of the Commonwealth. 

NOTE: 757 — number of claims disposed of as being uncollectable. 



Veterans 

The Veterans" Division has continued to assist the veterans of the 
Commonwealth to locate and secure benefits available to them from var- 
ious local, state and federal agencies involved in veterans' services. 

The Division advises all veterans and veterans" groups of their legal 
rights and obligations. 



I ho l)i\ ision rccincrcJ S:iMI. 110(1 (III in J.im,i;jcs loi ihc ( ommi>nu(.Mllli loi mini \ u> Ihc scilik' ol Hii//,iuK H.is icsiill- 
inj; Iroiii .m oil ^plll ulikii occiimlhI in Scnlomhci cil IW>y. 

In ihc s.iiiiL- L-.isc, I he iliMsion .issislcil Ihc I ou n ol I .ihm.iilh in oht.unini; u sclllcmcnl of SIllll.dlHIOO lor Jam^iuc lo il^ 
vhcllfish 



30 P.D. 12 



APPENDIX 

Bills Proposed by Attorney General and Enacted by the 1971 Legislature. 

RESOLVES: 

—Chapter 23. RESOLVE PROVIDING FOR AN INVESTIGATION 
AND STUDY BY A SPECIAL COMMISSION RELATIVE TO THE 
LABOR LAWS OF THE COMMONWEALTH. 

ACTS: 

—Chapter 37. AN ACT REQUIRING THE SUBMISSION OF CERTAIN 
INFORMATION RELATING TO HOME RULE CHARTERS WITH 
THE ATTORNEY GENERAL. 

—Chapter 130. AN ACT DECREASING THE TIME WITHIN WHICH 
THE ATTORNEY GENERAL SHALL NOTIFY CERTAIN PER- 
SONS OF INTENDED ACTION UNDER THE LAW REGULATING 
BUSINESS PRACTICES FOR CONSUMERS PROTECTION. 

—Chapter 254. AN ACT ELIMINATING THE REQUIREMENT THAT 
CITY AND TOWN CLERKS RECORD IN THE RECORD OF MAR- 
RIAGES THE COLOR OF ALL PARTIES MARRIED IN THEIR 
CITIES AND TOWNS. 

—Chapter 325. AN ACT REQUIRING LICENSED WAREHOUSEMEN 
TO NOTIFY DEPOSITORS OF FAMILY. PERSONAL OR HOUSE- 
HOLD GOODS THAT SUCH GOODS ARE NOT COVERED BY 
INSURANCE AGAINST FIRE OR THEFT. 

—Chapter 426. AN ACT PROVIDING FOR LIFE IMPRISONMENT OF 
A PERSON GUILTY OF ANY BOMBING OFFENSE WHICH RE- 
SULTS IN THE DEATH OF A PERSON. 

-Chapter 655. AN ACT DEFINING THE TERM "FLAG OF THE 
UNITED STATES" IN THE LAW RELATIVE TO THE MISUSE OF 
SAID FLAG. 

—Chapter 805. AN ACT REGULATING THE LAW RELATIVE TO 
CONSUMER CREDIT REPORTING. 

—Chapter 818. AN ACT PROVIDING FOR TAKING AUTHORITIES 
TO PAY SUMS LESS THAN FIVE HUNDRED DOLLARS TO ANY 
PERSON IN WHOM THE RIGHT TO DAMAGES FOR LAND TAK- 
ING HAS VESTED IN ORDER THEREBY TO PREVENT A HARD- 
SHIP ON SAID PERSON. 

—Chapter 996. AN ACT REQUIRING CERTAIN AMUSEMENT 
LICENSEES TO PROVIDE BY INSURANCE FOR THE PAYMENT 
OF WORKMEN'S COMPENSATION AS A PREREQUISITE TO 
LICENSING. 

—Chapter 1025. AN ACT REGULATING MULTI-LEVEL DISTRIBU- 
TION COMPANIES. 

—Chapter 1071. AN ACT PROVIDING FOR THE REGULATION OF 
DRUGS AND CONTROLLED SUBSTANCES. 



P.D. 12 31 



-Chapter 1076. AN ACT ESTABLISHING A COMPREHENSIVE 
PROGRAM FOR THE TREATMENT AND REHABILITATION OF 
INTOXICATED PERSONS AND ALCOHOLICS AND ABOLISH- 
ING THE CRIME OF PUBLIC INTOXICATION. 

-Chapter 1096. AN ACT REQUIRING PRIVATE BUSINESS 
SCHOOLS TO BE LICENSED BY THE DEPARTMENT OF EDU- 
CATION. 



32 P.D. 12 



Number I July 9, 1970 

Honorable Leon Charkoudian 
Commissioner of Community Affairs 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Charkoudian: 

You have requested my opinion with respect to certain questions aris- 
ing from the enactment of G. L. c. 40B, §§ 20-23, as inserted by St. 
1969, c. 774. You inform me that the ''Housing Appeals Committee," 
established within the Department of Community Affairs by G. L. c. 
23B, § 5A, has several appeals now pending, the decisions in which turn 
on the definition of "limited dividend organization'' as that term is used 
in G. L. c. 40B, § 21. You have, therefore, asked the following ques- 
tions: 

"1. Has the Commissioner of Community Affairs or the 
Housing Appeals Committee the authority to define or inter- 
pret any of the terms or language contained in Chapter 774 of 
the Acts of 1969? 

''2. If neither the Department nor the Committee has such 
authority, would the following definition of 'limited dividend 
organization" be consistent with the laws and requirements 
that govern eligibility of applicants under Chapter 774 of the 
Acts of 1969, and with current practice in the field of sub- 
sidized housing programs? 

" 'Limited Dividend Organization' means any applicant 
which (a) proposes to sponsor housing under Chapter 40B, 
and (b) is not a public agency, and (c) is eligible to receive a 
subsidy from a State or Federal agency after a comprehensive 
permit has been issued." 

"3. If the preceding definition is not consistent with the 
laws and requirements that govern eligibility of applicants 
under Chapter 774 of the Acts of 1969, and with current prac- 
tice in the field of subsidized housing programs, then what is 
a limited dividend organization?" 
For the reasons hereinafter stated, it is my opinion that the Commis- 
sioner may. by regulation, interpret statutory language which is or may 
be the basis of appeals before the "Housing Appeals Committee." but 
the "Housing Appeals Committee" may make no such interpretations. 
It is settled in this Commonwealth that a Commissioner of an adminis- 
trative agency who is charged with the administration of a statute may, 
in the absence of judicial determination, interpret the provisions of that 
statute. The Supreme Judicial Court in Cleary v. Cardiillo's Inc., 347 
Mass. 337. 344 (1964) stated: 

"The duty of statutory interpretation is for the courts. 
Nevertheless, particularly under an ambiguous statute . . ., 



I 



P.D. 12 33 



the details of legislative policy, not spelled out in the statute, 
may appropriately be determined, at least in the first 
instance, by an agency charged with administration of that 
statute."" 
See. also. Op. Atty. Gen., Dec. 17, 1964. at 153. 

An administrative agency may interpret statutes in accordance 
with G. L. c. 30A. through its published written decisions or in- 
terpretations. The appropriate manner to interpret ambiguous lan- 
guage is by regulation rather than less formal means. Cleary v. 
CarduUo's Inc., supra. In this regard, I note that the rule-making 
powers conferred on the Commissioner of Community Affairs are 
quite broad. In that respect, G. L. c. 23B, § 6 provides, in perti- 
nent part: 

"The commissioner shall make, and from time to time re- 
vise, regulations for the conduct of the business of the de- 
partment, and such other regulations as may be required by 
law."" 
In turn. G. L. c. 23B, § 5A establishes the ''Housing Appeals Com- 
mittee"' to hear all petitions for review filed under G. L. c. 40B, § 22 in 
accordance with rules and regulations established by the Commissioner. 
Clearly, the Department of Community Affairs, acting through its 
Commissioner, is under a statutory obligation to promulgate rules and 
regulations relative to all proceedings before the "Housing Appeals 
Committee."" It is my opinion, therefore, that the Commissioner may 
promulgate regulations interpreting any terms or language which prop- 
erly come before the "Housing Appeals Committee," when an interpre- 
tation would facilitate and aid the discharge of the Committee's statu- 
tory functions. An interpretation of the phrase, "limited dividend or- 
ganization"" appears to fall within this category. 

Your first question, in addition to asking whether the Commissioner 
may define or interpret terms contained in c. 408, §§ 20-23. asks 
whether the "Housing Appeals Committee"" has the same power. In my 
opinion the answer to that portion of your question must be in the nega- 
tive. General Laws c. 238. § 1 provides that: 

"The commissioner may authorize any officer of the de- 
partment to exercise in his name any power, or to discharge 
in his name any duty, assigned to him by law, and he may at 
any time revoke such authority."" (Emphasis supplied.) 
General Laws c. 238, § 5A, concerning membership of the "Housing 
Appeals Committee,"" provides in part: 

"There shall be within the department a housing appeals 
committee, consisting of three members to be appointed by 
the commissioner, of whom one shall be an officer or 
employee of the department, and two members to be ap- 
pointed by the Governor . . . "" (Emphasis supplied.) 



34 P.D. 12 

In construing G. L. c. 23B, §§ 1 and 5 A together, it is my opinion 
that the "Housing Appeals Committee'' cannot exercise the 
Com.missioner's power to interpret statutory language. Pursuant to G. 
L. c. 23B, § 1, the Commissioner may only delegate his powers to one 
who is an officer of the department. Although an "officer" may be a 
Committee member, the "Housing Appeals Committee" cannot be re- 
garded as an "officer" of the Department of Community Affairs, as that 
term is used in G. L. c. 23B, § I. 

In conclusion, then, it is my opinion that the Commissioner may, by 
means of an appropriate regulation, interpret ambiguous language con- 
tained in G. L. c. 408, §§ 20-23, when such an interpretation is neces- 
sary to facilitate the consideration of appeals before the "Housing Ap- 
peals Committee" of the Department of Community Affairs. In view of 
my answer to your first question, no answer is required to your ques- 
tions 2 and 3. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 2 July 20, 1970 

Mr. John P. Harrington, Superintendent 
Soldiers' Home in Holyoke 
Holyoke, Massachusetts 01040 

Dear Mr. Harrington: 

You have requested my opinion with respect to five questions relating 
to the Soldiers' Home in Holyoke which have arisen as a result of the 
amendment of G. L. c. 6, § 71 by c. 470 of the Acts of 1969. 

General Laws c. 6, § 71, as amended, provides in pertinent part: 
"Said board of trustees [of the Soldiers' Home] shall have 
the management and control of said home ... In the man- 
agement and control of said home as aforesaid, said board of 
trustees shall (I) adopt, issue and promulgate reasonable rules 
and regulations governing outpatient treatment at, admission 
to, and hospitalization in, said home, and (2) appoint a 
superintendent and a medical director. The superintendent 
shall be the administrative head of the home and in charge of 
the domiciliary facilities but shall not have any control or 
supervision of the hospital, medical, surgical and outpatient 
facilities therein. He shall, subject to the approval of the 
board of trustees, appoint and may remove a treasurer and 
assistant treasurer, each of whom shall give bond for the 
faithful performance of his duties . . . The medical director 
shall be the head of the hospital and in charge of the medical, 
surgical and outpatient facilities. He shall appoint and may 
remove such physicians, nurses and othe'r medical staff as he 



P.D. 12 35 



deems necessary for the proper and efficient operation of the 
facilities of the home under his charge and supervision . . ." 
For convenience, I will consider your questions as they appear in 
your request. 

1. Your first question relates to that part of § 71 which states that 
"The superintendent shall be the administrative head of the home . . ." 
You ask whether the word "home" as used in this context connotes the 
Soldiers' Home in Holyoke "as the complete and entire state agency." I 
am of the opinion that the question requires no extended discussion, and 
I answer this question in the affirmative. 

2. Your second question relates to that part of § 71 which provides as 
follows: 

"... The medical director shall be the head of the hospital 
and in charge of the medical, surgical and outpatient facilities. 
He shall appoint and may remove such physicians, nurses 
and other medical staff as he deems necessary for the proper 
and efficient operation of the facilities of the home under his 
charge and supervision ..." 
You ask whether the word "home" as used in this context refers only 
to the hospital section within the entire state agency, viz., the Soldiers' 
Home in Holyoke. The word "home" here means the entire state 
agency but in this context it is limited by the words "operation of the 
facilities . . . under his charge and supervision." Accordingly, the medi- 
cal director is the head of the hospital and in charge of the medical, sur- 
gical and outpatient facilities within the "home." 

Since questions one and two are answered in the affirmative, you ask 
in an unnumbered question whether the personnel who are in the hospi- 
tal, including the medical director, are subject to the administrative di- 
rection of the superintendent when said direction is not related to the 
professional care of patients. 

It is clear from a reading of § 71, as amended, that the superintendent 
is the administrative head of the Soldiers' Home in Holyoke. Thus, he is 
responsible for the management and operation of the entire home on an 
administrative level. However, the same section expressly provides that 
he shall not have control or supervision of the hospital, medical, surgical 
and outpatient facilities. Supervision of the hospital and other medical 
facilities is delegated to the medical director. Accordingly, in answer to 
your unnumbered question, it is my opinion that while the superinten- 
dent is responsible for the administration of the home, he cannot, in the 
performance of his duties, interfere in the control and supervision of the 
hospital or other medical facilities. I am unable, absent more facts, to 
give a more definite answer to your question, and it would appear that 
disputes as to control or supervision of personnel who are in the hospital 
relating to matters other than the professional care of patients would 
have to be resolved on a case by case basis, bearing in mind the division 
of powers and duties between the superintendent and medical director as 
set forth in G. L. c. 6, § 71. 



36 P.D. 12 



3. As the basis of your third question, you state that presently the 
superintendent certifies under the penalties of perjury that all vouchers 
processed for payment and charged against appropriations are true and 
correct and that there has been compliance with all laws of the Com- 
monwealth governing the disbursement of public funds. Since the 
superintendent, under the provisions of § 71, as amended, now has no 
control over the hospital and medical facilities, you ask whether the said 
superintendent will be held accountable and responsible and must certify 
under the penalties of perjury with respect to expenditures of state funds 
for the operation of a facility over which he has no control or supervi- 
sion or whether two separate appropriations are necessary. 

As the administrative head of the entire home with the power to ap- 
point and remove a treasurer and an assistant treasurer, the superinten- 
dent has the ultimate responsibility for the fiscal operation and manage- 
ment of the entire home, including the medical facilities. It is my opinion 
that the superintendent can determine whether expenditures made for 
the benefit of the medical facilities are true and correct without interfer- 
ing with the medical director's supervision of the hospital and other 
medical facilities. Accordingly, the superintendent must certify as to all 
expenditures and there is no need for two separate appropriations. 

4. In your fourth question you state that in 1952 a determination was 
made that the nursing home and dormitory sections of the Soldiers' 
Home comprised the domiciliary unit of the home and the acute medical 
and surgical wards comprised the hospital unit. This determination was 
apparently made by the board of trustees in order to qualify for Federal 
aid to state homes, and you now ask whether the nursing home section 
still remains a part of the domiciliary unit. 

Since the board of trustees have the management and control of the 
home and are responsible for adopting rules governing out-patient treat- 
ment at, admission to, and hospitalization in, said home, it is my opinion 
that this is a question which must properly be determined by the board 
pursuant to its powers of managerial oversight found in G. L. c. 6, § 71. 

5. In your fifth question you ask whether as administrative head of the 
home and the person in charge of the domiciliary facility of the home, 
you can direct or authorize the transfer of a member from the 
domiciliary unit to the hospital unit when, in your opinion, such a trans- 
fer is in the member's best interest. 

In my opinion, the answer to your fifth question is "no." Such a de- 
termination clearly involves a medical decision, and in this respect I 
note that the medical director has charge and control of the hospital unit. 
It is my further opinion that although the superintendent cannot direct or 
authorize the transfer of a member from the domiciliary unit to the hos- 
pital unit, he may certainly call a situation where such a transfer might 
be appropriate to the attention of the medical director and request him to 
make the determination. Finally, I note that the problems incident to 



P.D. 12 37 



such a transfer could be dealt with by the promulgation of rules by the 
board of trustees pursuant to their rule-making powers referred to siiprn. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 3 July 30, 1970 

Honorable William F. Powers 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston. Massachusetts 02215 

Dear Commissioner Powers: 

Your predecessor requested my opinion whether qualified applicants 
for the position of State Police Detective Lieutenant Inspector, upon 
appointment to that position, could receive credit for prior service in 
police departments of cities and towns of the Commonwealth, so that 
such applicants might be placed in a step in grade above that of the 
minimum in the grade to which they are appointed. 
General Laws c. 30, § 45 provides, in pertinent part: 

"The director of personnel and standardization shall estab- 
lish, administer and keep current and complete an office and 
position classification plan and a pay plan of the common- 
wealth. 

"(6) Subject to the approval of the commissioner of ad- 
ministration, the Director of Personnel and Standardization 
shall make, and from time to time may amend, rules govern- 
ing the establishment and administration of the said classifica- 
tion and pay plans, and credits due officers or employees, 
subject to this section, for previous services. Such rules, and 
amendments thereto, shall be open to public inspection in the 
files of the bureau of personnel and standardization and 
copies thereof shall be made available to officers and em- 
ployees of the commonwealth upon request." 
Pursuant to the statutory mandate of G. L. c. 30, § 45, the Director of 
Personnel and Standardization has established an office and position 
classification plan and a pay plan of the Commonwealth and has prom- 
ulgated rules referred to in G. L. c. 30, § 45(6). Rule 9b of the director's 
rules provides: 

"When an employee is entering the service of the Com- 
monwealth for the first time or is re-employed, after continu- 
ous separation of three years or more from the service of the 
Commonwealth, which Director of the Bureau of Personnel 
and Standardization finds was caused by reasons other than 
those listed in Rule 9C IV, he shall receive the minimum Sal- 



38 P.D. 12 

ary Rate in the Grade to which he is allocated in the General 
Salary Schedule in force at time of employment or re-em- 
ployment. The above provision shall apply on all Emergency 
employment whether original entry or otherwise." 
The question for resolution is thus whether a person appointed to the 
position of State Police Detective Lieutenant Inspector who has previ- 
ously served in a police department of a city or town of the Common- 
wealth "is entering the service of the Commonwealth for the first time" 
and must, therefore, receive the minimum salary rate in the grade to 
which he is allocated. It is my opinion, for the reasons hereinafter 
stated, that service in a police department of a city or town of the Com- 
monwealth is not service of the Commonwealth, and, accordingly, a 
person appointed to the position of State Police Detective Lieutenant 
Inspector may not receive credit for such prior service. Rule 9b there- 
fore applies, and a person so appointed must be placed in the minimum 
salary step of the grade to which he is appointed. 

I think it clear that persons appointed as police officers of the cities 
and towns of the Commonwealth are employees of the respective cities 
and towns and not of the Commonwealth, they are appointed and em- 
ployed by the local municipalities involved. Thus, the terms and condi- 
tions of employment as a police officer may be set by each appointing 
authority. McAidiffe v. New Bedford, 155 Mass. 216, 220. In my view, 
the identity of the appointing authority is controlling. Phillips v. Boston, 
150 Mass. 491,494. 

In considering the question presented, I have examined G. L. c. 30, § 
46, paragraph 5 and 5A and find that they are inapplicable. Paragraph 5 
pertains to emergency recruitment, which is not the situation you pre- 
sent, and paragraph 5A permits recruitment of professional personnel, 
primarily in medical and technical positions. While the position of State 
Police Detective Lieutenant Inspector involves the performance of pro- 
fessional duties, it does not appear to fall within the category of "profes- 
sional personnel" as that term is used in paragraph 5A. 

In conclusion, then, it is my opinion that applicants for the position of 
State Police Detective Lieutenant Inspector may not receive credit for 
prior service in police departments of cities and towns of the Common- 
wealth. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 4 July 30, 1970 

Mrs. Mabel A. Campbell 
Director of Civil Service 
State House 
Boston, Massachusetts 02133 

Dear Mrs. Campbell: 

You have requested my opinion whether the positions of Adminis- 
trator of Field Operations of Authority Audits and the Administrator of 



P.D. 12 39 

Field Operations of State Audits in the office of the State Auditor are 
subject to the provisions of General Laws, Chapter 31, the Civil Service 
Law. 

In my opinion, the above-entitled positions are subject to the Civil 
Service Law and Rules. These positions were created by G. L. c. II, § 
5, which states: 

"He [the Auditor of the Commonwealth] may, subject to 
confirmation by the governor, appoint ... a second, third 
and fourth deputy auditor . . . The auditor may employ an 
administrator of field operations of state audits and an ad- 
ministrator of field operations of authority audits to assist him 
in the performance of his duties.'' 
General Laws c. 31 confers on the Civil Service Commission jurisdic- 
tion to make rules to: 

"regulate the selection and employment of persons ... in 
the official service ... of the commonwealth . . ." G. L. c. 
31, §3(1). 
It is evident that persons filling the positions referred to in G. L. c. 
11, § 5 are in the official service of the Commonwealth. They are thus 
subject to the Civil Service Law and Rules unless otherwise exempted. 
General Laws c. 31, § 5 does exempt certain positions. That section 
provides, in pertinent part: 

"No rule made by the commission shall apply to the selec- 
tion or appointment of any of the following: 

"... officers appointed by the governor, or whose ap- 
pointment is subject to approval by the governor . . . 

"Such others as are by law exempt from the operation of 
this chapter." 
Even assuming, arguendo, that the persons appointed to the position 
of administrator of field operations of authority audits and the position 
of administrator of field operations of state audits are considered officers 
of the Commonwealth, it is, nevertheless, apparent from a reading of G. 
L. c. 11, § 5 that their appointment is not subject to approval by the 
Governor. Nor does that section exempt the positions from the opera- 
tion of the Civil Service Law and Rules. L therefore, conclude that the 
positions to which you refer must be filled in accordance with the Civil 
Service Law and Rules. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



40 P.D. 



Number 5 August 4, 1970 

The Honorable John F. X. Davoren 

Secretary of the Commomvealth 

State House 

Boston, Massachusetts 

Dear Mr. Secretary: 

You have requested my opinion whether The Federal Voting Rights 
Act (Public Law 91-285, approved June 22, 1970) has nullified the provi- 
sion found both in the Constitution of the Commonwealth and the Gen- 
eral Laws (see Article XX of the Articles of Amendment to the Con- 
stitution and G. L. c. 51, §§ 1, 44) that a citizen must be able to read the 
Constitution of the Commonwealth in the English language prior to 
being registered to vote. It is my opinion for the reasons hereinafter 
stated that the requirement has been nullified by the Federal Act. 
Section 201 of P. L. 91-285 provides: 

"(a) Prior to August 6, 1975, no citizen shall be denied, be- 
cause of his failure to comply with any test or device, the 
right to vote in any Federal, State, or local election con- 
ducted in any State or political subdivision of a State as to 
which the provisions of section 4(a) of this Act are not in ef- 
fect by reason of determinafions made under section 4(b) of 
this Act. 

"(b) As used in this section, the term 'test or device' 
means any requirement that a person as a prerequisite for vot- 
ing or registration for voting (1) demonstrate the ability to 
read, write, understand, or interpret any matter, (2) demon- 
strate any educational achievement or his knowledge of any 
particular subject, (3) possess good moral character, or (4) 
prove his qualifications by the voucher of registered voters or 
members of any other class." 

Article VI of the Constitution of the United States provides in perti- 
nent part: 

"This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the supreme Law of the Land; and the 
Judges in every State shall be bound thereby, anything in the 
Constitution or Laws of any State to the Contrary notwith- 
standing." 
First, I note that the provision of section 4(a) of the 1965 Voting 
Rights Act (79 Stat. 438; 42 U.S.C. § 1973b) were not in effect within 
this Commonwealth prior to the enactment of the 1970 Act, nor were 
they made effective as a result of the 1970 amendment to section 4(b) of 
the Act. Secondly, I note that the provisions of section 201 of the 1970 
Act (quoted supra) were effective upon approval, i.e., June 22, 1970. 



P.D. 12 41 



That being the case, the provisions of section 201 of the 1970 Act were 
immediately applicable to Massachusetts by reason of the supremacy 
clause of Article VI of the Constitution of the United States if the Mas- 
sachusetts Constitutional and statutory requirement that a citizen be 
able to read the Constitution of the Commonwealth in the English lan- 
guage is a test or device within the meaning of section 201(b) of the 1970 
Act. 

In my opinion, it is clear that the Massachusetts Constitutional and 
statutory requirement is a test or device prohibited by section 201 of the 
Federal Act. The test is therefore in conflict with an Act of Congress 
and cannot stand. Gibbons v. Ogden, 9 Wheat 1, 210-211. Accordingly, 
by virtue of the provisions of the Federal Act, use of the test prescribed 
by the Massachusetts Constitution and statutes has been suspended 
until August 6, 1975. 

Yours very truly, 

ROBERT H. QUINN 

Attorney General 



Number 6 August 5, 1970 

Honorable Nathan Chandler 
Commissioner of Ai^ricultnre 
State Office Building 
100 Cambridge Street 
Boston. Massachusetts 02202 

Dear Commissioner Chandler: 

You have requested my opinion with respect to certain questions aris- 
ing from the enactment of St. 1969, c. 807 which inserted a new para- 
graph (g) in G. L. c. 128, § 2. The statute is intended to promote the 
breeding of thoroughbred horses within the Commonwealth by authoriz- 
ing the Department of Agriculture to award cash prizes to breeders of 
qualifying Massachusetts bred thoroughbred horses who win first, sec- 
ond, or third prize in horse races conducted within the Commonwealth. 
In your letter you state that certain portions of G. L. c. 128, § 2(g) are 
"not clear and there is a difference of opinion as to the intent of the 
law." You have therefore posed the following questions for resolution: 

''(•) Does the five per cent prize mentioned in G. L. c. 128, § 2(g) 
refer to the prize offered by the track or the prize which the breeder of 
the horse receives from the Department of Agriculture? 

"(2) Is the five per cent prize awarded to the owner of the stallion 
who sired the winning horse to be given to the owner at the time ot the 
winning of a race or to the owner at the time of conception? 

"(3) Is a foal that is dropped in the Commonwealth, but not conceived 
in the Commonwealth, considered to be a Massachusetts bred horse and 
eligible for a prize?'" 



42 P.D. 12 

Your first and second questions require an interpretation of G. L. c. 
128, § 2 which provides, in pertinent part: 

"The department [of agriculture] . . . shall have power — 

•k 'k -k "k -k 

"(g) To aid in the promotion, development and encourage- 
ment of the breeding of thoroughbred horses, by offering as a 
prize to the breeder of a Massachusetts bred thoroughbred 
horse, a cash prize equal to twenty per cent of the first, sec- 
ond, or third prize according to the position in which said 
horse officially finished in a horse race conducted in the 
commonwealth, and a further prize of five per cent of the 
prize awarded said horse to the owner of the stallion which 
sired said horse, provided said stallion stands in the 
commonwealth."' (Emphasis supplied.) 
The answer to your first question turns on the meaning of the word 
"prize" as that word is used in G. L. c. 128, § 2(g). It is a familiar canon 
of statutory construction that where a word occurs twice or more in the 
same statute its meaning and scope remain unchanged. Booma v. 
Bigelow-Sanford Carpet Co., 330 Mass. 79, 82; Marcus v. Street Com- 
missioners of Boston, 252 Mass. 331, 334-335. The word "prize" is first 
used in G. L. c. 128, § 2(g) in reference to the award made to the 
breeder of a winning Massachusetts bred thoroughbred horse by the 
Department of Agriculture. It is my opinion that the five per cent prize 
in question is a "further prize" and refers to the prize awarded by the 
Department of Agriculture to the breeder of a Massachusetts 
thoroughbred horse. 

Your second question requires a determination of who is an "owner" 
and thereby entitled to the five per cent prize referred to supra. The 
Supreme Judicial Court, in discussing the word "owner," has stated: 
"The word is one of flexible meaning depending upon other 
language of the particular statute in which it is employed and 
the puipose and aim of the statute. It varies from an absolute 
proprietary interest to a mere possessory right." Animal Res- 
cue League v. Bourne's Assessors, 310 Mass. 330, 333. 

When an owner sells a stallion which has sired a Massachusetts bred 
thoroughbred horse, he no longer has a proprietary interest or a posses- 
sory right in that stallion. The new owner acquires all incidents of own- 
ership, including, in my opinion, the right to the five per cent prize re- 
ferred to in G. L. c. 128, § 2(g). 

Finally, you ask whether a horse which is not conceived within the 
Commonwealth is eligible for the prize referred to in G. L. c. 128. § 2(g) 
as a "Massachusetts bred thoroughbred horse." In this connection, I 
note that the statute makes reference to the place of conception of a 
qualifying horse as follows: 

"The stallion shall have been based in the commonwealth 
at the time of the conception of said foal to the aforemen- 
tioned mare." G. L. c. 128, § 2(g) (3). 



P.D. 12 43 



There is no language in the statute that can be construed as requiring 
that conception take place in the Commonwealth. The effect of requiring 
that conception occur within the Commonwealth would be to supply an 
additional qualification which the Legislature failed to provide either in- 
tentionally or unintentionally. In that regard it is a well-established rule 
of statutory construction that "if the omission was intentional, no court 
can supply it. If the omission was due to inadvertence, an attempt to 
supply it . . . would be tantamount to adding to a statute a meaning not 
intended bv the legislature." Boxlston Water Dist. v. Tahunto Regional 
Sch. Dist/, 353 Mass. 81. 

It is therefore my opinion that the statute cannot be construed to re- 
quire that a horse be conceived in this Commonwealth in order to qual- 
ify for a prize. Thus, a foal that is dropped in the Commonwealth but 
not conceived in the Commonwealth, may be considered a Massachu- 
setts bred horse and eligible for a prize under G. L. c. 128, § 2(g). 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 7 August 28, 1970 

Honorable Richard E. McLaughlin 
Registrar of Motor Vehicles 
100 Nashua Street 
Boston, Massachusetts 02114 

Dear Sir: 

You have requested my opinion as to your authority to permit per- 
sonnel of various insurance companies to obtain: 

(1) Records in computer processable form of all suspen- 
sions and/or revocations of operator licenses or vehicle reg- 
istrations. 

(2) Use of a computer terminal so that such information 
may be gathered by direct inquiry into the Registry's compu- 
ter. 

The threshold issue is, of course, whether the Registry records of 
suspensions and/or revocations of licenses or registrations are public 
records. ^ 

Public records are defined in G. L. c. 4, § 7, twenty-sixth as: 
"... any written or printed book or paper ... of the 
commonwealth . . . which is the property thereof, and in or 
on which any entry has been made or is required to be made 
by law, or which any officer or employee of the common- 
wealth . . . has received or is required to receive for filing 

General Laws c. 90, §§ 2 and 30 require that records of registrations 
and licenses be maintained by the Registrar. General Laws c. 90, § 341 



44 P.D. 12 

requires that the Registrar maintain "such records and books and pub- 
lish and distribute such forms and information as will facilitate the oper- 
ation of the provisions of the eight preceding sections . . ." In turn, the 
eight preceding sections to which reference is made in section 341 per- 
tain to compulsory motor vehicle liability insurance. In Canney v. 
Carrier. 333 Mass. 382, 383, the Supreme Judicial Court stated that the 
records which the Registrar is required by statute to keep are those 
enumerated in G. L. c. 90, §§ 2, 30, and 341. See, also. Lord v. 
Registrar of Motor Vehicles, ?>A1 Mass. 608, 61 1 (reports filed under G. 
L. c. 90, § 26 determined to be "public records"). Therefore, any 
statutory direction to keep records of suspensions and revocations must 
be found within the above sections. 

There is within G. L. c. 90, §§ 2, 26. 30 and 341 no direct and explicit 
requirement that the Registrar keep records of suspensions and revoca- 
tions. However, it is my opinion that such a requirement is necessarily 
implied and must have been intended by the Legislature. 
General Laws c. 90, § 30 provides, in pertinent part: 

"A proper record of all applications and of all certificates 
and licenses issued shall be kept by the registrar at his main 
office, and such records shall be open to the inspection of any 
person during reasonable business hours ..." 
A statute is to be construed, whenever possible so "as to make it an 
effectual piece of legislation in harmony with common sense and sound 
reason." Atlast Distributing Co. v. Alcoholic Beverages Control 
Commission, 354 Mass. 408, 414. In order that G. L. c. 90 as a whole be 
considered to be an effectual piece of legislation, it is necessary that a 
"proper record of all . . . certificates and licenses issued" must include 
records of suspensions and revocations. This is so because other sec- 
tions of Chapter 90 give specific directions to the Registrar in circum- 
stances under which an individual's license or registration has been sus- 
pended or revoked and the Registrar must be aware of suspensions and 
revocations in order to comply with the directions of such sections. 
In this regard, G. L. c. 90, § 8 provides in pertinent part: 

"Application for a license to operate motor vehicles may 
be made by any person except a person who^has been 
licensed and whose license is not in force because of revoca- 
tion or suspension or whose right to operate is suspended by 
the registrar . . ." 
And, according to G. L. c. 90, § 10: 

" . . . [N]o person shall operate on the ways of the com- 
monwealth any motor vehicle ... if the registrar shall have 
suspended or revoked any license to operate motor vehicles 
issued to him under this chapter, or shall have suspended his 
right to operate such vehicles, and such license or right has 
not been restored or a new license to operate motor vehicles 
has not been issued to him . . ." 



P.D. 12 45 



Finally. G. L. c. 90, § 22 provides in part: 

"The registrar may suspend or revoke any certificate of re- 
gistration or any license issued under this chapter, after due 
hearing, for any cause which he may deem sufficient. . . . and 
neither the certificate of registration nor the license shall be 
reissued unless . . . the registrar determines that the operator 
should again be permitted to operate ..." 
I note that other sections of c. 90 which require knowledge by the Re- 
gistrar that a license or registration has been suspended or r^^voked are 
§§22A. 22B. 23. 24 and 24 B. 

In light of the foregoing. 1 conclude that the provision of G. L. c. 90, 
§ 30 stating that a "proper record of all . . . certificates and licenses is- 
sued shall be kept by the registrar" requires such "proper record" to 
include record of suspensions and revocations. "Common sense and 
sound reason" demand this. Consequently, a Registry record of a sus- 
pension or revocation is a "written or printed book or paper ... in or on 
which any entry ... is required to be made by law, or which any otTicer 
or employee of the commonwealth ... is required to receive for filing," 
and is therefore a public record under G. L. c. 4, § 7, twenty-sixth. 

In reaching my decision, 1 have considered the case of Finnegan v. 
Checker Taxi Co., 300 Mass. 62, and find it inapposite. There, the plain- 
tiff offered as part of his case Registry "papers containing the operating 
record" of the defendant's operator. The papers indicated that the 
operator's license had been suspended and reissued several times in the 
previous two years. The Court held that the papers in issue were not 
required to be kept under G. L. c. 90, §§ 2, 30 or 341, and, therefore, 
were not admissible in evidence as public records. 300 Mass. 62, 70, cit- 
ing Commonwecilth v. Slavski, 245 Mass. 405, 417. However, the 
Slavski decision makes clear that the Court was concerned with eviden- 
tiary matters, specifically the public records exception to the hearsay 
rule and the best-evidence rule. See, also, Canney v. Carrier, supra, at 
383-84. Standards are different from determining what are "public re- 
cords" under the rules of evidence. See Amory v. Commonwealth, 321 
Mass. 240, 252. Hence, it is consistent with Finnei^an v. Checker Taxi 
Co., supra, to determine that the records of suspensions and revocations 
are required to be kept under G. L. c. 90, § 30, and therefore are public 
records under G. L. c. 4, § 7, twenty-sixth. 

In Lord v. Rci^istrar of Motor Vehicles, supra, at 612. the Court of- 
fered as an indicium in determining whether certain records are public, 
whether they could conceivably have usefulness to the general public. In 
my opinion, information whether a license or registration has been sus- 
pended or revoked can have such usefulness. Kor example, an employer 
may wish to determine whether the employee's license is presently valid 
before allowing him the use of a company vehicle; or. an individual may 
wish to verify the validity of an automobile registration before driving it. 

For the above reasons, I have decided that Registry records on sus- 
pensions and revocations are public records. 



46 P.D. 12 



In addition to the requirement of G. L. c. 90, § 30 that Registry "rec- 
ords shall be open to the inspection of any person during reasonable bus- 
iness hours," G. L. c. 66, § 10 provides in part: 

"Every person having custody of any public records shall, 
at reasonable times, permit them to be inspected and ex- 
amined by any person, under his supervision, and shall fur- 
nish copies thereof on payment of a reasonable fee." 

The latter statute has been interpreted as allowing any person the right 
to inspect and copy public records, with no limitation on the use to be 
made of such copies. The applicant need only refrain from interfering 
unduly with the work of the office and must submit to such reasonable 
supervision as will guard the safety of the records and assure equal op- 
portunity for all. Direct Mail Service v. Registrar of Motor Vehicles, 
296 Mass. 353, 355-57. 

There is nothing in Direct-Mail Service v. Registrar of Motor Vehi- 
cles, supra, to indicate that copies of public records in computer pro- 
cessable form cannot be provided to interested applicants as long as 
there is no undue interference and a reasonable fee is paid. It is there- 
fore my opinion that the Registrar may provide, in computer processable 
form, records of suspensions and revocations. 

Finally, there appears to be no difference between providing 
suspension/revocation information through the lease of a terminal in the 
Registry's computer and providing it through more conventional 
methods. I have been informed that computer technology is such that 
data provided through a computer terminal can be strictly limited to cer- 
tain information. In the instant situation, it should be made certain that 
only such information as comes within the definition of "public records" 
is disseminated. Also, the insurance industry may not so use the termi- 
nal as to interfere with use of the computer by the Commonwealth or to 
endanger the records stored within the computer. However, here again I 
am assured that safeguards are easily implemented, and additionally, a 
reasonable fee can be determined reflecting the value of the use of such 
a terminal. 

In conclusion, then, it is my opinion that: 

(1) The Registrar may make available the records of all suspensions 
and revocations in computer processable form to members of the insur- 
ance industry: and 

(2) The Registrar may allow members of the insurance industry to use 
a computer terminal by which they can inquire directly into the 
Registry's computer. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 47 



Numbers September IL 1970 

Honorable John F. X. Davoren 
Secretary of the Commomvealth 
State House 
Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By a letter dated August 1. 1970. you have asked me whether the fol- 
lowing question is one of public policy in accordance with section 19 of 
Chapter 53 of the Massachusetts General Laws: 

"Shall the Representative from this District be instructed 
to vote to approve the passage of a constitutional amendment 
reducing the size of the Massachusetts House of Representa- 
tives from 240 members to 160 members?'" 

It is my opinion that the question presented is an "important public 
question*" in which "every citizen of the Commonwealth has an in- 
terest" and is therefore a question of "public policy" within the mean- 
ing of G.L. c. 53. § 19. See 1939 Opinions of the Attorney General, pp. 
99-100; 1955 Opinions of the Attorney General, pp. 51-52. See also 8 
Opinions of the Attorney General, 1928. 490. 491-94; 1965 Opinions of 
the Attorney General, pp. 92-93. 

You have requested further that if 1 determine the question submitted 
to be one of "public policy" and therefore properly included on the elec- 
tion ballot in the 7th Essex Representative District, that I supply your 
office with a suitable statement of the question for presentation upon the 
ballot. It is my opinion that the question, as presently stated, is in 
proper form and may be printed on the ballot as such. See 1965 Opinions 
of the Attorney General, p. 93. 

Very truly yours. 
ROBERT H. QUINN 

Attorney General 



Number 9 September 29. 1970 

Honorable John F. X. Davoren 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By letters dated September 1, 3 and 4, 1970, you have asked me 
whether the following question (or questions identical in all material as- 
pects) is one of public policy in accordance with section 19 of Chapter 
53 of the Massachusetts General Laws: 

"Shall the Representative from this District be instructed 
to vote to approve the passage of a constitutional amendment 
reducing the size of the Massachusetts House of Representa- 
tives from 240 members to 160 members?" 



48 P.D. 12 



It is my opinion that the question presented is an "important public 
question" in which "every citizen of the Commonwealth has an in- 
terest" and is therefore a question of "public policy" within the mean- 
ing of G. L. c. 43, § 19. See 1939 Opinions of the Attorney General, pp. 
99-100; 1955 Opinions of the Attorney General, pp. 51-52. See, also, 8 
Opinions of the Attorney General 1928, pp. 490, 491-92; 1965 Opinions 
of the Attorney General, pp. 92-93. Consequently, the question may 
properly be included on the election ballot in the Representative Dis- 
tricts which you have mentioned, namely: 1st, 2nd, 5th, 8th, 9th, 10th 
and I3th Essex; I4th Hampden; 10th, 23rd, 28th and 34th Middlesex; 
8th, 12th and 13th Norfolk; 17th Suffolk; 16th and 22nd Worcester. 

You have requested further that I supply your office with a suitable 
statement of the question for presentation upon the ballot. It is my opin- 
ion that the question should be printed on the ballot in the form in which 
it appears in this letter. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 10 September 29, 1970 

Honorable John F. X. Davoren 
Secretary of the Coniinomvealth 
State House 
Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By letter dated September 1, 1970, you have asked me whether the 
following question is one of public policy in accordance with section 19 
of Chapter 53 of the Massachusetts General Laws: 

"Shall the Representative from this District be instructed 
to vote to approve the passage of a constitutional amendment 
to abolish the Executive Council?" 

It is my opinion that the question presented is an "important public 
question" in which "every citizen of the Commonwealth has an in- 
terest" and therefore is a question of "public policy" within the mean- 
ing of G. L. c. 53. § 19. See 1939 Opinions of the Attorney General, pp. 
99-100; 1955 Opinions of the Attorney General, pp. 51-52. See, also, 8 
Opinions of the Attorney General 1928. pp. 490. 491-492; 1965 Opinions 
of the Attorney General, pp. 92-93. Consequently, the question may 
properly be included on the election ballot in the Representative District 
which you have mentioned, namely: 15th Suffolk. 

You have requested further that I supply your office with a suitable 
statement of the question for presentation upon the ballot. It is my opin- 
ion that the question should be printed on the ballot in the form in which 
it appears in this letter. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



P.D. 12 49 

Number 1 1 September 29, 1970 

Honorable John F. X. Davoren 

Secretary of the Coiunionweahh 

State House 

Boston. Massachusetts 02133 

Dear Secretary Davoren: 

By letters dated September 1, 1970 you have asked me whether the 
following question is one of public policy in accordance with section 19 
of Chapter 53 of the Massachusetts General Laws: 

"Shall the Senator from this district be instructed to vote to 
approve a resolution directed to the President and the Con- 
gress of the United States stating that it is the sense of the 
Senate of the Commonwealth of Massachusetts that there be 
an immediate cease fire and that all the Armed Forces of the 
United States be immediately withdrawn from Vietnam, and 
further, that the resulting savings be appropriated by the 
Congress of the United States to help the Commonwealth of 
Massachusetts carry out domestic programs to improve the 
educational, medical, and environmental facilities for the 
people of the Commonwealth?'" 
It is my opinion that the question presented is an "important public 
question" in which "every citizen of the Commonwealth has an in- 
terest" and therefore is a question of "public policy" within the mean- 
ing of G. L. c. 53, § 19. See 1939 Opinions of the Attorney General, pp. 
99-100; 1955 Opinions of the Attorney General, pp. 51-52. See, also, 8 
Opinions of the Attorney General 1928, pp. 490, 491-492; 1965 Opinions 
of the Attorney General, pp. 92-93. Consequently, the question may 
properly be included on the election ballot in the Senatorial Districts 
which you have mentioned, namely: 1st Essex and 2nd Middlesex. 

You have requested further that I supply your office with a suitable 
statement of the question for presentation upon the ballot. It is my opin- 
ion that the question should be printed on the ballot in the form in which 
it appears in this letter. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 12 September 29. 1970 

Honorable John F. X. Davoren 
Secretary of the Commomvealth 
State House 
Boston. Massachusetts 02133 

Dear Secretary Davoren: 

By letter dated September 1, 1970, you have asked me whether the 
following question is one of public policy in accordance with section 19 



50 P.D. 



of Chapter 53 of the Massachusetts General Laws: 

"Shall the Representative from this District be instructed 
to vote to approve the passage of a bill requiring all members 
of the State Senate and House of Representatives to file with 
the Secretary of State a report of all of their financial assets 
and sources of income?" 

It is my opinion that the question presented is an "important public 
question" in which "every citizen of the Commonwealth has an in- 
terest" and therefore is a question of "public policy" within the mean- 
ing of G. L. c. 53, § 19. See 1939 Opinions of the Attorney General, pp. 
99-100; 1955 Opinions of the Attorney General, pp. 51-52. See, also, 8 
Opinions of the Attorney General 1928, pp. 490, 491-492; 1965 Opinions 
of the Attorney General, pp. 92-93. Consequently, the question may 
properly be included on the election ballot in the Representative District 
which you have mentioned, namely: 15th Suffolk. 

You have requested further that I supply your office with a suitable 
statement of the question for presentation upon the ballot. It is my opin- 
ion that the question should be printed on the ballot in the form in which 
it appears in this letter. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 13 September 30, 1970 

Mrs. Glendora M. Putnam, Chairman 

Massachusetts Commission Against ! 

Discrimination 
120 Tremont Street 
Boston, Massachusetts 02108 

Dear Mrs. Putnam: 

You have requested my opinion regarding the continuing validity of 
Massachusetts laws regulating the employment of women in light of 
Title VII of the Civil Rights Act of 1964. You refer particularly to G. L. 
c. 149, §§ 53-59 and 99-103 and generally to "all other sections which 
have the effect and regulate the employment of women." 

Massachusetts has statutes prohibiting women from lifting or carrying 
objects in excess of forty pounds, G. L. c. 149, § 53A; restricting work- 
ing hours for women in various types of employment to nine hours daily 
and forty-eight hours weekly (with certain enumerated exceptions and 
permissible waivers by the Commissioner of Labor and Industries), G. 
L. c. 149. § 56-58; and prohibiting, under various conditions, the em- 
ployment of women at certain hours of the night, G. L. c. 149. § 59. 
Other provisions particularly referred to in your letter are G. L. c. 149, 
§ 53 (pulleys or casters required for receptacles moved by women); § 54 
(core rooms where women are employed); § 55 (employment of women 



P.D. 12 51 



before or after childbirth); § 99 (mealtimes); § 100 (hours of work with- 
out interval for meal); § 101 (nonapplicability of statutes relating to meal- 
times and intervals for meals); § 102 (labor during mealtime without 
knowledge of employer); and, § 103 (seats for employees). That these 
laws were enacted for the purpose of protecting the health of women 
does not appear to be in dispute. See, e.g., Broussard v. Melong, 322 
Mass. 560, 562. 

Section 703(a) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. 
§ 2000e-2a) provides: 

"(a) It shall be an unlawful employment practice for an 
employer' — 

(1) to fail or refuse to hire or to discharge any individual, 
or otherwise to discriminate against any individual with re- 
spect to his compensation, terms, conditions, or privileges of 
employment, because of such individual's race, color, reli- 
gion, sex, or national origin. 

(2) to limit, segregate or classify his employees in any 
way which would deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely affect his 
status as an employee, because of such individual's race, 
color, religion, sex, or national origin." 

Massachusetts law also prohibits discrimination in employment by 
reason of sex, G. L. c. 151B § 4(1), but specifically excepts the provi- 
sions in Chapter 149 applicable to women. G. L. c. 15 IB, § 9. 

The only statutory exception to section 703(a) of Title VII occurs 
"where religion, sex, or national origin is a bona fide occupational qual- 
ification reasonably necessary to the normal operation of [the] particular 
business or enterprise." 42 U.S.C. § 2000e-2e (1964). The Equal Em- 
ployment Opportunity Commission, which administers the provisions of 
the Civil Rights Act of 1964, has set forth the following guideline relat- 
ing to sex as a bona fide occupational qualification: 

"(1) Many States have enacted laws or promulgated ad- 
ministrative regulations with respect to the employment of 
females. Among these laws are those which prohibit or limit 
the employment of females, e.g., the employment of females 
in certain occupations, in jobs requiring the lifting or carrying 
of weights exceeding certain prescribed limits, during certain 
hours of the night, or for more than a specified number of 
hours per day or per week. 

"(2) The Commission believes that such State laws and 
regulations, although originally promulgated for the purpose 
of protecting females, have ceased to be relevant to our tech- 
nology or to the expanding role of the female worker in our 
economy. The Commission has found that such laws and 
regulations do not take into account the capacities, prefer- 

' 42 U.S.C. § 2(K)0e(b) defines an employer as a person engaged in interstalc commerce with iwenly-five or more em- 
ployees for each working day in each of twenty or more calendar weeks of the year. 



52 PD'2 

ences, and abilities of individual females and tend to dis- 
criminate rather than protect. Accordingly, the Commission 
has concluded that such laws and regulations conflict with 
Title VII of the Civil Rights Act of 1964 and will not be con- 
sidered a defense to an otherwise established unlawful em- 
ployment practice or as a basis for the application of the bona 
fide occupational qualification exception." 34 F.R. 13367, § 
1604.1(b) (August 19, 1969). 
Your request for clarification as to the continuing validity of the cited 
provisions of c. 149 of the General Laws derives urgency from the fact 
that many employers, beset with the claims of qualified women em- 
ployees for equal access to job classifications and overtime hours that 
are blocked by the operafion of certain of those provisions, are caught 
between the state and Federal laws and stand to violate one by com- 
pliance with the other. 

Individual instances of direct conflict between state laws of this kind 
and the Civil Rights Act of 1964 have been adjudicated in favor of the 
Federal act. Rosenfeld v. Southern Pacific Co., 293 F. Supp. 1219 
(CD. Cal. 1968); Caterpillar Tractor Co. v. Grahiec, 39 U.S.L.W. 
^1 5^-^53 (S D. 111. 1970) (state statutes limiting hours and weight-liftmg 
for "women); Bo\ve v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 
1969) (state statute limifing weight lifting); Richards v. Griffith Rubber 
Mills, 300 F. Supp. 338 (D.C. Ore. 1969) (state regulation hmiting 
weight lifting.'^ The decisions have centered on the operafion of the 
Supremacy Clause (Art VI, § 2) of the Consfitufion of the Umted States 
whereby the state law must yield when its applicafion deprives a citizen 
of a right to which he is entitled under a law enacted pursuant to the 
Federal Consfitufion. Gibbons v. Ogden, 22 U.S. (9 Wheat. 1, 210 
(1824) ). In these instances, the right denied has been access to a job, 
job classificafion or other employment privilege protected by the Civil 
Rights Act of 1964. 

The finding of such a conflict has necessarily implied a finding that the 
relevant employment circumstances would not justify applicafion of the 
bona fide occupafional qualificafion exception. Such a finding has been 
made by the courts regarding a 35-pound weight lifting limitation (Bowe 
V Colgate-Palmolive Co., supra, at 715); a job as press operator, occa- 
sionally requiring lifting as much as 60 pounds (Richards v. Griffith 
Rubber Mills, supra, n. 3); and, a job as switchman "subject to call out 
24 hours a day . . . and sometimes required to work alone during late 
night hours, including the period from midnight to 6 a.m.^^' (H^jt'^5 v. 
Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 234 (5th Cir. 
1969) ). The court in Weeks held a broad construction of the bona fide 
occupafional qualificafion to be inconsistent with the purposes of the 
Federal act, and placed upon the employer the burden of showing that 
he had reasonable cause to believe that all or substantially all women 
would be unable to perform safely and efficiently the duties of the job 
involved. 408 F.2d at 235. 

. ho,- .. co,np,chcns,se Hstinu of |lk1,cu,I .nd c.,..s„„ul,c.,l treatment of state p,■otect,^e legislation to date, see Pressman. 
RcvoUnum „, \l.n„cn\ tjnplovnicnl Ki-Jus. 44 Morula Bar Journal. No. 6. p. 29. 



P.D. 12 33 

Your inquiry requires me to determine whether there is such a prima 
facie conflict apparent with regard to the provisions of chapter 149. 

The authorities on conflicts between state and Federal laws define 
two conditions upon which the state law must yield: (1) if the latter 
stands as an obstacle to the accomplishment and execution of the full 
purposes and objectives of Congress {Hincs v. Davidowitz, 312 U.S. 52, 
67) or (2) if it is manifestly evident that Congress intended to preempt 
the field and bar any state law or regulation of the kind in question (Rice 
v. Santa Fe Elevator Corp., 331 U.S. 218, 230). Because the courts 
have strictly construed the latter condition, and because the language of 
the Federal act suggests directly otherwise,-^ I find no Congressional in- 
tention to bar the states from legislating to protect the health of female 
employees. 

However, applying the other standard, it is my opinion that the flat, 
inflexible restrictions of the Massachusetts statutes upon weight lifting, 
working hours and night duty for women, without regard to their indi- 
vidual wishes or abilities,-" stands as a serious obstacle to the accom- 
plishment of the full purposes of Title VII. Such restrictions, while de- 
signed to protect women from exploitation in strenuous or heavy indus- 
try, have the effect of denying women access to certain jobs, classifica- 
tions and overtime privileges to which they are entitled under the Fed- 
eral act. 5 Hence no operafion or application whatsoever of G. L. c. 149, 
§ 53A or §§ 56-59 could withstand a challenge based upon that act. 

The Massachusetts Legislature, in initially providing these restric- 
tions, assumed, and I think rightfully, that certain women in certain in- 
dustries required and desired such protection. However, with the pas- 
sage of the Civil Rights Act of 1964, it is now undeniably clear that such 
protection cannot be forced upon women who do not require it. Seen 
from this perspective, the inflexible restrictions of the Massachusetts 
statutes go beyond their protective purpose and, although unintention- 
ally and inconsistently with their original purpose, run afoul of Title VII 
of the 1964 Civil Rights Act. This does not mean that the Common- 
wealth can no longer legislate in the fashion now in question. However, 
if it chooses so to legislate, it can do so only to the extent of making the 
protection of hours, weight, etc. statutes voluntarily available to indi- 
vidual employees, to invoke or not as the employees see fit. The stat- 
utes, in other words, must be tailored to the individual, allowing those 
who wish to work (assuming they are otherwise qualified), and those 
who wish not to work to be protected in this refusal. 

' 42 use 20(K)e-7 ( 1964) Mates: 'Nothing in this title shall be deemed lo exempt or relieve any person from any liabil- 
ity, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, 
other than any such law which purports lo require or permit the doing of any act which would be an unlawful em- 
ployment practice under ihis inlc ," Sec, also 42 U.S.C. 20(X)h-4 (1964). 

' It might be observed that in this regard the statute goes beyond its protective purpose, which could presumably be 
achieved by making the protection which the legislature has seen fit to provide voluntarily available to individual em- 
ployees and barring only compulsion to work under the prescribed conditions. 

■ the emimeraiion of certain exceptions in § .''6 and conditions in § f>9 does not remedy this defect, as women are still 
excluded from other employment opportunities not falling under the bona fide occupational qualification exception. CI. 
Ko'.clrU/ ^ . S„. far. Ck. siipni. 29.1 F. Supp. at 1224. 



54 P.D. 12 



I hasten to add that this result is not true for employers not covered 
under the Civil Rights Act of 1964 "^ and, hence, outside Federal jurisdic- 
tion. These employers are obliged to conform with all of the provisions 
of chapter 149. 

A different conclusion regarding conflict with Federal law is required 
concerning the other statutes to which you specifically refer, G. L. c. 
149, §§ 53, 54, 55 and 99-103. These provisions decree particular steps to 
be taken with regard to women employees which do not of themselves 
deny Federally protected rights. Section 53, for example, requires cas- 
ters to be provided on receptacles weighing (with contents) over 75 
pounds, that are to be moved by women. 1 can see in § 53 no inherent 
obstacle to the accomplishment of the purposes of the Federal act. See 
Mines v. Davidowitz, supra, at 67. There is no necessity that employers 
violate the latter by complying with the former; the required installation 
of casters need not deny women access to employment rights, privileges 
or opportunities open to males. Indeed, deferring as I must to the legis- 
lative determination of a need for such a protective measure, this provi- 
sion insures such access. In the same manner I find no conflict neces- 
sary between Federal law and the statutes relating to core rooms {§ 54), ^ 
childbirth (§ 55), mealtimes (§§ 99-102) and seats (§ 103). 

While I do not find these latter provisions void on their face, this is 
not to suggest that a denial of rights clearly protected under the Civil 
Rights Act could be excused by reason of their affirmative require- 
ments. An employer could not, for example, refuse to hire women for a 
job requiring the use of receptacles because state law requires the instal- 
lation of casters.*^ 

Your letter also inquires about the validity of other Massachusetts 
statutes which regulate the employment of women. If you wish to par- 
ticularize with respect to any other such statutes not dealt with in this 
opinion, I will be happy to advise you further. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



" See note 1 . supra. 

' Under § 54 the Department of I.ahor and Industries is authorized to issue rules regulating the employment of women in 
foundry core rooms. Such rules as have heen adopted [.\1as\. Bomcl of Lcihoi and Indaslrics. Bill. No. 10 (Feb. 7, 
1917) ) do not necessitate a denial of employment rights or opportunities, with one exception. The rule prohibiting lifting 
cores above a specified size and weight ( I cubic foot or 25 pounds) without an assisting mechanical appliance (/</.. § .^0, 
para. 1) is an affirmative requirement and therefore does not collide with Federal law. but the rule immediately following 
(§ -^0. para. 2) prohibits any female, regardless of desire or ability, from working on any core e.xceeding 2 cubic feet or 60 
pounds and hence conflicts with the Federal act. 

" The same theory would apply to a claim that provisions such as sections 5^. 54, 55. and 99-10.1 constitute a denial of 
Federally protected rights of mole employees by treating women preferentially. On their face alone there is no necessity 
that compliance with them need deny any such rights as an employer is not required to take the prescribed protective 
measures only for female employees. This is not to suggest that a male employee would he barred from suing under the 
Civil Rights Act for equivalent terms and conditions of employment. I intimate no opinion as to whether a Federal court 
would deem the measures required under such provisions to constitute rights or privileges covered under the Federal act. 
or as to the effect of the language of 42 U.S.C. § 2000e-7 (see note 2 supra) on such a question. 



P.D. 12 55 



Number 14 September 30, 1970 

Honorable John F. X. Davoren 

Secretary of the Coinmomvealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By a letter dated September 4, 1970, you have asked me whether the 
following question is one of public policy in accordance with section 19 
of Chapter 53 of the Massachusetts General Laws: 

"Shall the Representative from this District be instructed 
to vote to approve the passage of such measures, including 
constitutional amendments, as m.ay be necessary to effect the 
substitution of regionally based service districts for county 
governments?" 
It is my opinion that the question presented is an "important public 
question" in which "every citizen of the Commonwealth has an in- 
terest" and is therefore a question of "public policy" within the mean- 
ing of G. L. c. 53, § 19. See 1939 Opinions of the Attorney General, pp. 
99-100; 1955 Opinions of the Attorney General, pp. 51-52. See also 8 
Opinions of the Attorney General. 1928, 490, 491-92; 1965 Opinions of 
the Attorney General, pp. 92-93. 

You have requested further that if I determine the question submitted 
to be one of "public policy" and therefore properly included on the elec- 
tion ballot in the 7th Essex Representative District, that I supply your 
office with a suitable statement of the question for presentation upon the 
ballot. It is my opinion that the question, as presently stated, is in 
proper form and may be printed on the ballot as such. See 1965 Opinions 
of the Attorney General, p. 93. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 15 October 5, 1970 

Honorable John F. X. Davoren 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Sir: 

You have asked my opinion whether the following categories of per- 
sons have the right to register to vote in Massachusetts: 

1. members of military forces stationed at and permanently 
residing on military bases in the Commonwealth; 

2. employees of military or other federally owned hospitals 
located in the Commonwealth and 



56 P.D. 12 

3. patients in federal institutions within the Commonwealth. 

I treat these questions together since they all deal with the question of 
the voting rights of persons living on federal reservations. Most of my 
opinion, therefore, applies with equal force to each category. 

All Massachusetts inhabitants are guaranteed the right to vote: "All 
elections ought to be free; and all the inhabitants of the commonwealth, 
having such qualifications as they shall establish by their frame of gov- 
ernment, have an equal right to elect officers . . ." Mass. Const., Pt. 1, 
Art. IX. Qualifications which must be met to entitle a Massachusetts 
inhabitant to register and to vote are set forth in the Massachusetts Con- 
stitution (Arts. 3, 20, 28, 30, and 45 of the Articles of Amendment) and 
in the General Laws (c. 51, particularly §§ 1 through 4). There is no 
Constitutional or statutory provision that would disqualify a patient, 
member of the military forces, or employee of a military or other feder- 
ally owned hospital, permanently residing on a federal reservation in the 
Commonwealth, from registering to vote in Massachusetts because of 
his status or because of his residence on a federal reservafion. 

In Opinion of the Justices, 42 Mass. 580, 583-584, the Court advised 
the House of Representatives that persons residing on lands purchased 
by or ceded to the United States for navy yards, forts, and arsenals, 
where no reservation of jurisdiction is made by the Commonwealth ex- 
cept concurrent jurisdiction to make service of process on such lands, 
do not acquire any elective franchise as inhabitants of towns where such 
lands are located. Noting that Congress had exclusive jurisdiction over 
such lands (U.S. Const., Art. 1, § 8), the Court declared that state law 
did not operate therein. Opinion of the Justices, supra, at 582. 

This opinion, you point out, "has always been cited as a reason why 
persons who lived within the boundaries of federal forts or enclaves 
such as in the town of Bedford, Weymouth, Athol, and the city of 
Chicopee, should not be allowed to register." However, since 1841, 
when that opinion was rendered, the relationship between federal reser- 
vations and the states where they are located has changed considerably. 
Pursuant to Acts of Congress, many state laws have been made applica- 
ble to persons living on federal reservations, e.g. state laws governing 
unemployment and workmen's compensation, criminal acts not punish- 
able under federal law, and income, gasoline and sales and use taxes. It 
was this change of relationship that recently led the Supreme Court of 
the United States to conclude that certain persons living on a federal re- 
servation in Maryland (National Institutes of Health), although exempt 
from local property taxes, did not have such a "degree of disinterest in 
electoral decisions that might justify a total exclusion from the franch- 
ise." Evans v. Cornman, 398 U.S. 419, 425-426. The Court affirmed the 
decision of the United States District Court which held that to deny 
such persons the right to vote was to deny them equal protection of the 
laws guaranteed by the Fourteenth Amendment of the Constitution of 
the United States. 

It follows from the Cornman case that patients in federal institutions 
in Massachusetts, employees of military or other federally owned hospi- 



P.D. 12 57 



tals in Massachusetts, and members of the military forces stationed at 
military bases in Massachusetts cannot be denied registration on the 
ground that they reside on a federal reservation or in a federal enclave. 

The circumstances that the person seeking registration is a member of 
the military forces is not, of itself, any reason for denying registration. 
This is so even though such person may be residing on a military base. 
Arapojolii v. McMeminiin, 113 Cal. App. 2d 824. It is true that concen- 
trated balloting of military personnel on a base in a small town could 
sway an election in such a town. It is also true that, in general, a ser- 
viceman has no choice of duty station and is subject to reassignment. 
But these arguments have recently been considered and rejected by the 
Supreme Court of the United States as bases for excluding members of 
the armed forces from voting in the states where their bases were lo- 
cated. In Carrington v. Rash, 380 U.S. 89, the Court held invalid a pro- 
vision in the Texas Constitution prohibiting any member of the Armed 
Forces who moved his home to Texas while in the military service from 
voting in Texas while in the Armed Forces. That provision, the Court 
declared, imposed ''an invidious discrimination in violation of the Four- 
teenth Amendment." Carrington v. Rash, supra, at 96. 

On the basis of the Carrington case, then, the fact that an applicant 
for registration is in the military service stationed in Massachusetts, 
standing alone, cannot be a basis for denying registration. 

That a person happens to be a patient in a federal institution in Mas- 
sachusetts, an employee of a military or other federally owned hospital 
in Massachusetts, or a member of the military forces stationed at a 
military base in Massachusetts does not prevent him from acquiring a 
new domicile here. If such a person can show he has acquired a new 
domicile in Massachusetts, through evidence of his intention to make 
the Commonwealth his home indefinitely, and if he meets the voting 
qualifications of Massachusetts inhabitants, he must be allowed to regis- 
ter to vote. Carrington v. Rash, supra, at 93-94. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 16 October 6, 1970 

The Honorable Francis W. Sargent 

Governor of the Commonwealth of Massachusetts 

State House 

Boston, Massachusetts 02133 

Dear Governor Sargent: 

You have requested my opinion on several questions relating to the 
pension to be paid to the widow of the late Leo P. Doherty, who from 
March 20, 1935 until his death on September 18, 1964 was a Special Jus- 
tice of the Municipal Court of the City of Boston. Your questions arise 
because of the enactment of St. 1969, c. 552 which conferred pension 
rights on the widows of certain special justices. 



P.D. 12 



Prior to considering your questions, a brief review of the pertinent 
statutory provisions relating to the instant case is in order. General 
Laws c. 32, § 65C, which governs pensions for, inter alia, special jus- 
tices and their widows, provides in pertinent part: 

"A chief justice, justice, associate justice, judge, associate 
judge or special justice, hereinafter in this section called 
judge, who is retired or who resigns and who is entitled to a 
pension for life under the provisions of section sixty-five A or 
sixty-five B, may elect to receive, in lieu thereof, a pension 
for life at a lesser annual rate with the provision that upon his 
death, leaving as a survivor a widow who was his spouse at 
the time of his retirement or resignation, two thirds of such 
pension for life at a lesser annual rate shall be paid to such 
widow. Such lesser annual rate shall be determined so that 
the value, on the date of such retirement or resignation, of the 
prospective payments to such judge and to such widow shall 
be the actuarial equivalent of the value of the pension for life 
to which such judge is entitled under the provisions of section 
sixty-five A or sixty-five B. Such election shall be in writing 
on a prescribed form and filed with the appropriate retiring 
authority at the time of retirement or resignation or within 
thirty days thereafter. The computation of said actuarial 
equivalent shall be subject to supervision and verification in 
accordance with the provisions of section twenty-one by the 
actuary appointed by the commissioner of insurance. 

'Tf a judge, who would be entitled, upon resigning, to a 
pension for life under section sixty-five A or sixty-five B, dies 
before resigning, his widow shall receive a pension for life of 
two thirds of such pension for life at a lesser annual rate to 
which such judge would have been entitled had he, as of the 
date of death, resigned and had such pension for life at a les- 
ser annual rate been computed under the first paragraph." 
The above-quoted version of G. L. c. 32, § 65C was inserted by St. 
1968, c. 699 to broaden the class of widows covered by the section to 
include widows of special justices. Because the amendment was of pros- 
pective application only, the General Court later enacted St. 1969, c. 
552 which provides, in pertinent part: 

'Tf a special justice who would be entitled upon resigning 
to a pension for life under section sixty-five B of chapter 
thirty-two of the general laws dies before resigning and before 
the effective date of section sixty-five C of said chapter 
thirty-two, added by chapter six hundred and ninety-nine of 
the acts of nineteen hundred and sixty-eight, his widow shall 
receive a pension for life of two thirds of such pension for life 
at a lesser annual rate to which such special justice would 
have been entitled had he resigned on the effective date of 
said section sixty-five C of said chapter thirty-two, and had 



P.D. 12 59 



such pension for life at a lesser annual rate been computed 
under the first paragraph of said section sixty-five C." 
Thus it appears that until the enactment of St. 1968, c. 699, a special 
justice who retired could not elect to receive a pension at a lesser annual 
rate with the provision that his widow would receive at his death a pen- 
sion of two-thirds of such lesser annual rate. After the effective date of 
St. 1968, c. 699, special justices were entitled to make such an election, 
and, by virtue of the enactment of St. 1969, c. 552, provision was made 
for widows of certain special justices who had died before resigning and 
before the effective date of St. 1968, c. 699. Inasmuch as the Honorable 
Leo P. Doherty died on September 18, 1964 and had not resigned as of 
the date of his death, his widow has been accorded pension rights by St. 
1969, c. 552. 
Accordingly, you request my opinion on the following questions: 
"1. Does the annual pension to which Mrs. Doherty is en- 
titled under St. 1969, c. 552, commence on or immediately 
after the date of Judge Doherty's death, or on or immediately 
after the effective date of St. 1968, c. 699, or on the effective 
date of St. 1969, c. 552? 

"2. If your answer to Question 1 is that Mrs. Doherty is 
entitled to a pension commencing on the effective date of 
either of the statutes referred to therein, what is the effective 
date of that statute? 

"3. Is the annual pension to which Mrs. Doherty is entitled 
under St. 1969, c. 552, to be computed on the basis of the full 
annual pension which would have been payable to Judge 
Doherty had he resigned on the date of his death, or on the 
basis of the full annual pension which would have been pay- 
able to him had he resigned on the effective date of St. 1968, 
c. 699?'' 
I will consider your questions seriatim. 

I. It is my opinion that the annual pension to which Mrs. Doherty is 
entitled under St. 1969, c. 552, commences on the effective date of St. 

1968, c. 699. While Mrs. Doherty's right to receive a pension came 
about by virtue of the enactment of St. 1969, c. 552, the latter statute 
provided that she became entitled to a pension "of two-thirds of such 
pension for life at a lesser annual rate to which such special justice 
would have been entitled had he resigned on the effective date of said 
section sixty-five C of said chapter thirty-two ..." 

I am not unmindful of the general rule that a statute is to be construed 
as having a prospective operation only, unless an intent that it operate 
retroactively is clearly indicated. See, e.g., Martin L. Hall Co. v. 
Commonwealth, 215 Mass. 326 and Wynn v. Board of Assessors of 
Boston, 281 Mass. 245. However, the insertion of the provision in St. 

1969, c. 552 that the pension to the widow is computed as if the special 
justice had resigned on the effective date of St. 1968, c. 699 evidences a 
legislative intent, in my opinion, that the pension be paid as of the effec- 
tive date of St. 1968, c. 699. 



60 P.D. 12 



II. With respect to your second question, it is my opinion that the ef- 
fective date of St. 1968, c. 699 was October 17, 1968, ninety days follow- 
ing approval of the Act. Acts of the Legislature ordinarily take effect 
ninety days following approval by the Governor, unless they are laws 
which may not be the subject of a referendum petition. Article 48 of the 
Articles of Amendment to the Constitution, The Referendum, Pt. 1. 
Among those laws which may not be made the subject of a referendum 
petition are laws relating to the "compensation of judges." St. 1968, c. 
699 is not such a law. Without deciding whether a law relating to the 
pensions of judges is a law relating to the "compensation of judges," it 
is sufficient to note that St. 1968, c. 699 relates not to the pensions of 
judges but to the pensions of widows of special justices. 

III. With respect to your third question, it is my opinion that the an- 
nual pension to which Mrs. Doherty is entitled under St. 1969, c. 552 is 
to be computed on the basis of the full annual pension which would have 
been payable to Judge Doherty had he resigned on the effective date of 
St. 1968, c. 699. Your question arises because St. 1967, c. 888 altered 
the method of computation of pensions for special justices. However, 
St. 1969, c. 552 makes no reference to the date of death in computing the 
pension; the Act expressly refers to a pension computed on the basis of 
a pension "at a lesser annual rate to which such special justice would 
have been entitled had he resigned on the effective date of [St. 1968, c. 
699]." If Judge Doherty had resigned as of the effective date of St. 1968, 
c. 699, his pension would have been computed on the basis of G. L. c. 
32, § 65B (as amended by St. 1967. c. 888) and § 65C. In enacting St. 
1969, c. 552, the General Court indulged in the fiction of disregarding 
the date of death of the special justice involved and treating each situa- 
tion as a resignation as of the effective date of St. 1968, c. 699. Thus, 
Mrs. Doherty's pension is to be computed on the basis of two-thirds of 
the lesser annual rate to which Judge Doherty would have been entitled 
had he resigned on the effective date of St. 1968, c. 699. In turn, the 
lesser annual rate is to be determined by computing the full annual pen- 
sion which would have been payable to the Judge had he resigned on 
said effective date. To employ the fiction of a later death for one pur- 
pose and not for the other would be inconsistent, and such an intent on 
the part of the General Court is not to be presumed. 

In conclusion, then, it is my opinion that Mrs. Doherty's pension 
rights commenced on the effective date of St. 1968, c. 699, which was 
ninety days following approval of that Act, and that her annual pension 
is to be computed on the basis of the full annual pension which would 
have been payable to Judge Doherty had he resigned on the effective 
date of St. 1968, c. 699. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 61 



Number 17 October 7, 1970 

Honorable William F. Powers 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston. Massachusetts 02215 

Dear Commissioner Powers: 

In connection with the authority conferred on you by G. L. c. 147, § 
lOG, to appoint employees of educational institutions as special police 
officers, you have requested my opinion whether the Children's Hospi- 
tal Medical Center qualifies as an "educational institution" under the 
statute. Attached to your request is a letter from the Chief of the Medi- 
cal Center Police of the Children's Hospital Medical Center which 
states that the center and its sister hospitals ''have teaching or training 
programs, operate educational medical research programs or provide 
some form of fellowship or grant in aid assistance to their staff physi- 
cians, interns, nurses or employees." 

General Laws c. 147, § lOG provides, in pertinent part: 

"The commissioner may at the request of an officer of a 
college, university or other educational institution appoint 
employees of such college, university, or other institution as 
special police officers." 

In order for the Children's Hospital Medical Center to qualify under 
the statute, it must be an "educational institution." In that regard. I 
note the Supreme Judicial Court has categorized institutions as "educa- 
tional" where the stated purposes of the institution is "clearly educa- 
tional" and work actually conducted by the institution is "dominantly 
educational," Assessors of Boston v. Garland School, 296 Mass. 378, 
387. See, also. South Lancaster Academy \ . Lancaster, 242 Mass. 553, 
558. The Court has further stated that an educational institution's ac- 
tivities must be primarily educational and not merely incidental to some 
other dominant purpose. Assessors of Boston v. Garland School, supra, 
at 387. 

In my opinion, a hospital whose primary purpose is to heal the sick or 
research new cures for illness is not an "educational institution," whose 
dominant purpose must be education. Accordingly, resolution of the 
question you have posed depends on a determination whether the 
Children's Hospital Medical Center and its sister hospitals primarily 
carry on work of an educational nature. Such a determination is a factual 
one and must be made by you as the Commissioner of Public Safety. 
See 1965-1966 Op. Atty. Gen. 242, 243. In the absence of sufficient facts 
upon which to make the determination, I am only able to advise you that 
the Children's Hospital Medical Center and allied hospitals may only 
qualify as educational institutions under G. L. c. 147, § lOG. it their 
stated and actual dominant purposes are educational. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



62 P.D. 12 



Number 18 October 8, 1970 

Honorable John J. Droney 

District Attorney for Middlesex County 

Court House 

Cambridge, Massachusetts 

Dear Mr. District Attorney: 

You have requested my opinion whether, in the light of the provisions 
of General Laws, Chapter 12, section 20, the amount of compensation 
which is to be paid to legal assistants appointed or to be appointed by 
you is restricted in amount when the compensation is to be paid through 
a Federal grant. More specifically, you inform me that enactment of the 
Federal Omnibus Crime Control and Safe Streets Act of 1968 (P.L. 
90-351, 82 Stat. 197) has resulted in the availability of Federal funds to 
implement a District Court Prosecutor's Program, administered by the 
Governor's Committee on Law Enforcement and Administration of 
Criminal Justice. This program will evaluate the utility of an alternative 
to police prosecution in the district courts. You further inform me that 
you have hired a legal assistant to operate the demonstration project and 
that assistants hired with Federal funds will have all the powers and 
duties of an assistant district attorney. 

It is my opinion that the provisions of G. L. c. 12, § 20 do not limit 
the compensation to be paid legal assistants connected with the District 
Court Prosecutor's Program, when their compensation is paid through a 
Federal grant. General Laws c. 12, § 20 provides: 

"Section 20. The district attorney for the Suffolk district, 
the district attorney for the northern district and the district 
attorney for the Norfolk district may each employ additional 
legal assistants, with the approval of the chief justice of the 
superior court. The length of time of such employment, 
which shall in no instance exceed three months, and the 
amount of compensation, which shall in no instance exceed 
two thousand dollars, shall be determined by the district at- 
torney, with the approval of said chief justice. Such compen- 
sation shall be paid by the treasurer of Suffolk county, 
Middlesex county or Norfolk county, as the case may be, 
upon presentation of bills approved by the district attorney, 
and by said chief justice and in Suffolk county by the auditor 
thereof. In matters connected with the work for which he is 
so employed, an attorney shall have all the powers and au- 
thority of an assistant district attorney." 
On July 28, 1969. in opinion to the District Attorney of the Norfolk 
District, I reviewed the history of G. L. c. 12, § 20, which originated as 
St. 1906, c. 460 (1969-1970 Op. Atty. Gen., No. 2). With respect to the 
question you pose, I think it clear that the restriction on compensation 
found in that section applies only when the compensation is to be paid 
with county funds. The maximum of two thousand dollars is designed to 



P.D. 12 63 



protect the county treasury, and the need for that protection vanishes 
when Federal funds are involved. In the latter instance, if the Federal 
government deems fiscal controls necessary, it is free to enact them. Cf. 
1946-1947 Op. Atty. Gen. 66-67. 

In conclusion, then, it is my opinion that G. L. c. 12. § 20 does not 
restrict the compensation to be paid legal assistants when the compensa- 
tion is to be paid with Federal funds. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 19 October 26. 1970 

Honorable John F. X. Davoren 
Secretary of the Commonwealth 
State House 
Boston. Massachusetts 02133 

Dear Mr. Secretary: 

You have requested my opinion on two questions relating to the so- 
called "public policy questions" which are submitted to the voters at 
biennial state elections. Before proceeding to a discussion of your ques- 
tions, it is helpful to quote the pertinent statutes, which are G. L. c. 53, 
§§ 19 and 21: 

Section 19 provides: 

"On an application signed by twelve hundred voters in any 
senatorial district, or by two hundred voters in any represen- 
tative district, asking for the submission to the voters of that 
senatorial or representative district of any question of instruc- 
tions 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 de- 
termined 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 presen- 
tation upon the ballot. Upon the fulfillment of the require- 
ments of this and the two following sections the state secre- 
tary shall place such question on the official ballot to be used 
in that senatorial or representative district at the next state 
election." 

Section 21 provides: 

"Applications shall be filed with the state secretary not 
later than the sixtieth day before the election at which the 
questions are to be submitted. Not more than two questions 
under section nineteen shall be placed upon the ballot at one 
election, and they shall be submitted in the order in which the 



64 P.D. 12 



applications are filed. No question negatived and no question 
substantially the same shall be submitted again in less than 
three years." 
You have informed me that on August 28, 1970 there was filed with 
your office an application for a question on the election ballot in the 2nd 
Middlesex Senatorial District. The application which contained 2,562 
signatures concerned a resolution on withdrawal of United States armed 
forces from Vietnam. You have also informed me that on September 1, 
1970 at 1:08 P.M. your office received two additional applications for 
questions on the election ballot in the 15th Suffolk Representative Dis- 
trict. The applications, containing 255 and 257 signatures respectively, 
concerned the filing of reports of financial assets by state legislators and 
a proposal to abolish the executive council. I note that I have previously 
determined that all three questions are questions of public policy. See 
Op. Att\. Gen., September 29, 1970 (70/71-10); September 29. 1970 
(70/71-1 i); September 29, 1970 (70/71-12). 

It appears that the 15th Suffolk Representative District is composed 
of Wards 21 and 22 in the City of Boston. Ward 22 is also a part of the 
2nd Middlesex Senatorial District. Under the circumstances, you have 
asked whether: 

1. All three questions may be printed on the ballot in Ward 22 
of Boston, and 

2. The two questions contained in the applications in the 15th 
Suffolk Representative District can both appear upon the bal- 
lot in Ward 21 of Boston inasmuch as Ward 21 is only one 
half of the 15th Suffolk Representative District. 

My answers to both your quesfions are in the negative. 

General Laws, c. 53. § 19 is clear and unequivocal in stating that "not 
more than two questions . . . shall be placed on the ballot . . ." See Op. 
Atty. Gen., August 16, 1939, at 100. Since the application for the ques- 
tion on the ballot of the 2nd Middlesex Senatorial District was filed first, 
that application takes precedence. The question concerning withdrawal 
of United States armed forces from Vietnam must, therefore, be placed 
on the ballot for the 2nd Middlesex Senatorial District, which means, of 
course, that the question will also be on the ballot for Ward 22 of Bos- 
ton, a part of the 15th Suffolk Representative District. Under the provi- 
sions of section 21, one additional question on the ballot for the 15th 
Suffolk Representative District is permitted. If the persons who filed the 
two applications on September 1, 1970 cannot agree as to which ques- 
tion should be placed on the ballot, the choice should be made by lot. 
Both questions cannot be placed on the ballot for Ward 21 in view of the 
language in G. L. c. 53, § 19, which provides that the questions shall be 
submitted "to the voters of that senatorial or representative district 
..." I conclude that the statute does not permit the submission of a 
question to the voters of one half of a representative district. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



P.D. 12 65 



Number 20 November 2, 1970 

Honorable John F. X. Davoren 

Secretary of the CoiniuonwealtJi 

State House 

Boston, Massachusetts 02133 

Dear Mr. Secretary: 

You have requested my opinion on two questions arising from the 
rights and duties of voting challengers at polling places at the biennial 
state election on Tuesday, November 3, 1970. Specifically, you ask 
whether legally appointed voting challengers may keep personal notes 
which would include the marking of voting lists during voting hours, and 
whether said challengers may retain control of their notes and lists when 
they enter and leave polling places during voting hours. 

The subject of voting challengers is covered by G. L. c. 54, § 85A, 
which provides: 

''The state committee of a policital party may appoint a 
person to act as a challenger of voters at any polling place in 
the commonwealth at a state election, and a city or town 
committee of such a party, in a city or town in which munici- 
pal officers are nominated by primaries or by caucuses of 
political parties, may appoint a person to act as such chal- 
lenger at any polling place in such city or town at a municipal 
election. Such challenger may challenge any voter during the 
hours that said polling place is open for the purpose of voting; 
and a statement signed by the chairman of the committee ap- 
pointing him shall be sufficient evidence of his right so to act. 
He may be compensated for his services by the political party 
whose committee appointed him. He shall be assigned by the 
election officer presiding at the polling place to such position 
within the polling place as will enable him to see and hear 
each voter as he offers to vote. Nothing herein contained 
shall deprive any other person of the right to challenge a 
voter as provided by law." 
I construe your first question to inquire whether legally appointed vot- 
ing challengers may keep personal notes which would include their own 
copies of voting lists, and whether they may mark said lists while they 
are in their respective polling places. 1 find nothing in section 85A to 
prohibit such a practice, and it is my opinion that the right to keep per- 
sonal notes which would include personal copies of voting lists can fairly 
be inferred from the statutory language. The statute provides that a chal- 
lenger "may challenge any voter during the hours that said polling place 
is open for the purpose of voting; ..." In order that that right be exer- 
cised, a challenger must have access to a voting list, and I see no reason 
why he should not be permitted to use his own list in order to determine 
whether a prospective voter is entitled to vote. 

With respect to your second question, it is my opinion that a legally 
appointed voting challenger may retain control of his notes and lists 



66 P.D. 12 



when he enters and leaves the respective polling place during election 
day. Such control would appear to be essential in order that the 
challenger's notes and lists not be altered or lost. Again, I find nothing 
in the section to prohibit such control, and a challenger's control of his 
own notes and lists when he enters and leaves the polling place can 
fairly be derived from his primary duty and/or right to challenge a pros- 
pective voter. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 21 November 10. 1970 

Honorable William F. Powers 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Powers: 

Your predecessor requested my opinion with respect to several ques- 
tions arising from the relationship of the Uniformed Branch of the 
Massachusetts State Police and the Detective Bureau of the State 
Police, both of which are within the Department of Public Safety. St. 
1965, c. 785 first provided for a system of promotional examinations in 
the Uniformed Branch of the State Police. You have informed me that it 
is the policy of the Department to give leaves of absence to members of 
the Uniformed Branch in order that those persons may accept provi- 
sional appointments as State Police Detective Lieutenant Inspectors in 
the Detective Bureau. Such provisional appointments are of indefinite 
length and are abolished upon the establishment of a civil service list, 
since the positions are subject to the Civil Service Law and Rules. 

It appears that a member of the Uniformed Branch was given a leave 
of absence from that Branch and accepted a provisional appointment as 
a State Police Detective Lieutenant Inspector. The Detective Lieuten- 
ant Inspector has now requested that he be permitted to take an exami- 
nation for promotion to the rank of corporal in the Uniformed Branch, 
despite the fact that he has not returned to that Branch and retains his 
provisional appointment in the Detective Bureau. I have been informed 
that a similar situation exists with respect to a Detective Lieutenant who 
has been permitted to take the staff sergeant's examination in the Uni- 
formed Branch, although he. too, has retained his provisional appoint- 
ment in the Detective Bureau. 

Under the circumstances, you have asked the following four ques- 
tions: 

''1. If a member of the Uniformed Branch is granted a 
leave of absence to accept a provisional appointment as a 



P.D. 12 67 



State Police Detective Lieutenant Inspector, within the Divi- 
sion of State Police, does the period of time that he is on a 
leave of absence from the Uniformed Branch count with re- 
spect to pension rights in accordance with Chapter 32, sec- 
tion 26, paragraph 3, which states 'any member in service 
classified in Group 3 who is an officer appointed under sec- 
tion 9A of Chapter 22, and who has performed service in the 
Division of State Police in the Department of Public Safety 
for not less than twenty years shall be retired by the state 
board of retirement upon his attaining age fifty or whichever 
occurs last." 

"2. Does a member of the Uniformed Branch who is on a 
leave of absence to accept a provisional appointment as a 
State Police Detective Lieutenant Inspector maintain his 
seniority rights with respect to Chapter 22, section 9-0? 

"3. Does a member of the Uniformed Branch on leave of 
absence to accept an appointment as a provisional State 
Police Detective Lieutenant Inspector maintain his eligibility 
rights to file for promotional examination to the next higher 
grade when said promotional orders are posted, even though 
he is on a leave of absence during the entire thirty days 
specified for filing? 

''4. If a member of the Uniformed Branch who is on a 
leave of absence to accept a provisional appointment as a 
State Police Detecfive Lieutenant Inspector is considered a 
member of the Uniformed Branch during this period of ab- 
sence, how should he be evaluated in accordance with the 
provisions of Chapter 22, section 9-0, wherein he is not under 
the supervision of a first line supervisor or troop commander 
during the period of his leave of absence." 
For the reasons hereinafter stated, I ask to be excused from answer- 
ing your first question. I answer your second question in the negative 
and your third question in the affirmafive. In answer to your fourth 
question. I have set out the procedure to be followed. 

I. Your first question relates to the retirement and pension rights of 
members of the Uniformed Branch. It does not appear that a member of 
the Uniformed Branch who has been granted a leave of absence to ac- 
cept a provisional appointment as a State Police Detective Lieutenant 
Inspector now seeks to retire pursuant to the provisions of G. L. c. 32, § 
26(3). It has been the long settled custom and practice of this Depart- 
ment that the Attorney General advises constitutional officers and heads 
of state agencies only with respect to questions arising in the perfor- 
mance of their official duties. 2 Op. Atty. Gen. 100, November 15. 1899. 
Since it does not appear that an opinion is required in order to aid you in 
the discharge of your duties, it would be inappropriate for me to answer 
your first question at this time. See Op. Atty. Gen., Feb. 14, 1935, at 31. 
Further, since G. L. c. 32. § 26(3) refers to the State Board of Retire- 
ment as the state agency charged with retiring persons subject to that 



68 P.D. 12 



section, the Chairman of that Board should request such an opinion, if 
the occasion arises. 

II. Your second question asks whether a member of the Uniformed 
Branch who is on a leave of absence and who has accepted a provisional 
appointment as a State Police Detective Lieutenant Inspector accrues 
seniority as a member of the Uniformed Branch during his leave of ab- 
sence. In this regard, G. L. c. 22, § 9-0 provides that promotions shall 
be based, inter alia, on "(4) ... a determination of longevity based upon 
the granting of five per cent per each year, or major part thereof up to 
twenty years of service." 

I construe the statute as referring to ''service'" in the Uniformed 
Branch of the Division of State Police. Section 9-0 refers to promotions 
to positions in the Uniformed Branch, and the standards for promotion 
relate solely and exclusively to that Branch. I can perceive no intent on 
the part of the Legislature to broaden the term "service" to include 
service outside of the Uniformed Branch. In my view, if such is to be 
accomplished it must be by way of an amendment to the statute. 

III. Your third question asks if a member of the Uniformed Branch on 
a leave of absence as a Detective Lieutenant Inspector may file for a 
promotional examination to the next higher grade in the Uniformed 
Branch even though he is on a leave of absence during the entire filing 
period. First, I note that a leave of absence does not constitute a separa- 
tion from service, unless the leave is unauthorized or exceeds the period 
permitted by law. I find nothing in the statutory provisions relating to 
appointment of members of the Uniformed Branch which limits a leave 
of absence from that Branch. Compare G. L. c. 31, § 46E (leaves of ab- 
sence for persons subject to the Civil Service Law and Rules). See, also, 
F errant e v. Higgiston, 296 Mass. 208, 209. 

Secondly, while the Commissioner of Public Safety has adequate 
statutory authority to promulgate rules and regulations on this subject 
(G. L. c. 22, § 9A), I find nothing in the Rules and Regulations relating 
to the government and discipline of the Uniformed Branch which per- 
tains to eligibility for filing for promotional examinations while on a 
leave of absence. I therefore conclude that a member of the Uniformed 
Branch of the Division of State Police on a leave of absence as a provi- 
sional Detective Lieutenant Inspector may file to take a promotional ex- 
amination in the Uniformed Branch. 

IV. Your fourth question asks how a member of the Uniformed 
Branch should be evaluated in accordance with the provisions of G. L. 
c. 22, § 9-0 if he is on a leave of absence as a provisional Detective 
Lieutenant Inspector and is not under the supervision of a first line 
supervisor or troop commander during the period of his leave of ab- 
sence. In this regard, G. L. c. 22, § 9-0(2) provides that one of the 
criteria for promotion shall be: 

"performance evaluation reports which shall be submitted 
annually to the commissioner by each troop commanding of- 
ficer or bureau head and first line supervisor, under whom 



P.D. 12 69 



each candidate has served, and the average percentage of all 
such annual reports in the then current grade of such candi- 
date shall be the performance evaluation mark ..." 
I think it clear that the statute refers to performance evaluation re- 
ports submitted by personnel in the Uniformed Branch, and thus the 
words ''bureau head'' cannot be construed as including the head of the 
Detective Bureau. Accordingly, in taking a leave of absence from the 
Uniformed Branch, a member of that Branch takes the risk that his per- 
formance evaluation mark will be based on a period of time which in- 
cludes his leave of absence. If the candidate's file includes any evalua- 
tion reports for his then current grade, the average of those reports will 
be the performance evaluation mark. If there are no reports, then the 
performance evaluation mark must be zero. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 22 November 16, 1970 

Mr. Edward T. Sullivan, Chairman 
Division of Employment Security 
Board of Review 
Charles F. Hurley Employment 

Security Building 
Government Center 
Boston, Massachusetts 021 14 
Dear Chairman Sullivan: 

You have requested my opinion whether the Board of Review of the 
Division of Employment Security has the discretion to waive the ten- 
day period within which appeals from decisions determining the validity 
of claims for unemployment benefits must be filed with the Board. Spe- 
cifically, you refer to situations where it appears that the claimant had 
good cause for filing late because of illness during the prescribed filing 
period. 

The filing period is prescribed by General Laws, c. 151 A, § 40, which 
now provides:' 

"A claimant or interested party may, within ten days after 
mailing to him of notice of the decision, file an application for 
a review of such decision by the board of review." 

It is my opinion that the Board of Review does not have the discretion 
to waive the provisions of G. L. c. 151 A, § 40. In my view, the language 
of the statute is clear and prescribes a jurisdictional requirement for re- 
view. 

' The section was recently amended hy St. 1970. c. 421. approved on June Id. 1970. efTective on Seplemhei X. 1970. 
Prior to amendment, an application ("or review was required to he tiled •'tlve days alter receipt, hut in no case more than 
seven days after mailing'" of the notice of the decision. 



70 P.D. 12 



In Kravitz v. Director of the Division of Employment Security, 326 
Mass. 419, the Supreme Judicial Court affirmed the dismissal of an ap- 
peal from a decision of the Board of Review because of noncompliance 
with certain provisions of G. L. c. 151 A, § 42. That section provides 
that the claimant shall deliver ''to the director as many copies of the 
notice and petition as there are parties respondent."' Although there 
were two respondents, the claimant delivered only one copy of the 
notice and petition to the director. In affirming the District Court, the 
Court stated: 

"Apart from this statute there is no right to such a review. 
Touching the matter here involved the statute is free from 
ambiguity. Compliance with its terms was a condition prece- 
dent to the right of review. The requirement [of the statute] 
... is not a provision that can be treated as merely directory. 
The language of the statute is mandatory and admits of no 
exceptions. It is an essential part of the statutory scheme 
. . ." 326 Mass. at 421-422. (Emphasis supplied.) 
The portion of the Kravitz opinion quoted above is applicable as well 
to the provisions of G. L. c. 151 A, § 40. The clause, "within ten days" 
must be construed according to its natural and ordinary meaning. 
Johnson v. District Attorney for the Northern District, 342 Mass. 212, 
215. So construed, the clause evidences a clear legislative intent that the 
appeal period provided by the statute is to be applied, without excep- 
tion, to all cases arising under it. 

I realize that construing the statute in this manner will undoubtedly 
cause a hardship for those individuals who are unable for one reason or 
another to file a timely application for review. However, this considera- 
tion is not entitled to weight where, as here, the words of the statute are 
clear and unambiguous and cannot be disregarded. Boston Five Cents 
Savings Bank v. Assessors of Boston, 317 Mass. 694, 702-703. Such 
considerations are more properly addressed to the General Court. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 23 December 2, 1970 

Honorable John F. X. Davoren 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Sir: 

You have requested by interpretation of two provisions of the Voting 
Rights Act Amendments of 1970 (the Act) to assist you in preparing ef- 
fective instructions for distribution to election officials of the Common- 
wealth of Massachusetts. The Act, approved June 22, 1970. significantly 



P.D. 12 71 

amends the Voting Rights Act of 1965. 42 U.S.C. §§ 1973-1973p. The 
first provision as to which you pose a question is Section 201 of the Act 
which suspends, until August 6, 1975, any requirement that a citizen 
comply with a ''test or device." such as the ability to read and write, to 
qualify to vote in any election. The section provides as follows: 

"(a) Prior to August 6, 1975, no citizen shall be denied, he- 
cause of his failure to comply with any test or device, the 
right to vote in any Federal, State, or local election con- 
ducted in any State or political subdivision of a State as to 
which the provisions of section 4(a) of this Act are not in ef- 
fect by reason of determinations made under section 4(b) of 
this Act. 

"(b) As used in this section, the term 'test or device' 
means any rec{uirement that a person as a prerequisite for 
voting or registration for voting (I) demonstrate the ability to 
read, write, understand, or interpret any matter, (2) demon- 
strate any educational achievement or his knowledge of any 
particular subject, (3) possess good moral character, or (4) 
prove his qualifications by the voucher of registered voters or 
members of any other class." 

I have underlined the portions of Section 201 which are relevant to 
your first question, which is as follows: 

"Since the ability to write any matter is forbidden as a part 
of a registration test, is the requirement contained in Article 
20 of the Amendments to the State Constitution that any 
voter be able to sign his name now made ineffective?" 

Article 20 of the Articles of Amendment to the Massachusetts Constitu- 
tion provides as follows: 

"No person shall have the right to vote, or he eligible to 
office under the constitution of this commonwealth, who shall 
not he able to read the constitution in the English language, 
and write his name: — provided, however, that the provi- 
sions of this amendment shall not apply to any person pre- 
vented by a physical disability from complying with its requi- 
sitions, nor to any person who now has the right to vote, nor 
to any persons who shall be sixty years of age or upwards at 
the time this amendment shall take effect." (Emphasis sup- 
plied.) 

Under the Supremacy Clause of the Federal Constitution the "Con- 
stitution, and the Laws of the United States which shall be made in Pur- 
suance thereof . . . shall be the supreme Law of the Land . . . any Thing 
in the Constitution or Laws of any State to the Contrary notwithstand- 
ing." U. S. Const., Art. 6, cl. 2. To the extent Article 20 conflicts with 
Section 201 of the Act, then. Article 20 must give way. 



72 P.D. 12 



Article 20 requires a citizen to be able to "write his name" in order to 
have the right to vote unless physically disabled from so doing. Section 
201 forbids the employment, as a precondition to registering or voting, 
of a test to demonstrate the ability of the citizen to write "any matter." 
This broad language brings within the sweep of the prohibition the re- 
quirement that a citizen be able to write his name. Consequently, this 
requirement is suspended under the Act until August 6, 1975. 

The answer to your first question, therefore, is affirmative subject to 
the time limitation imposed by the Act. 

The other provision of the Act as to which you seek my opinion is 
Section 302 extending the franchise to citizens between the ages of 18 
and 21; it provides as follows: 

"Except as required by the Constitution, no citizen of the 
United States who is otherwise qualified to vote in any State 
or political subdivision in any primary or in any election shall 
be denied the right to vote in any such primary or election on 
account of age if such citizen is eighteen years of age or 
older." 
Under Section 305 of the Act, this provision is applicable to all 
primaries and elections held on or after January 1, 1971. 

The question you ask with respect to Section 302 is as follows: 
"Article 9 of the Bill of Rights of the State Constitution, to- 
gether with the state election law and city charters, provides 
that the various office holders must be chosen from among 
qualified voters. Is this to be interpreted that once registered 
to vote, a person of the age of 18 years is qualified to be 
elected to all offices on all ballots in the Commonwealth, with 
the exception of Congress, and U. S. Senator?" 
"The right to hold office," the Supreme Judicial Court has advised, 
"is not necessarily co-extensive with the right to vote." Opinion of the 
Justices, 240 Mass. 601, 606. The question whether a citizen of the 
Commonwealth has the right to hold office is different from the question 
whether he has the right to vote. Thus, holders of public offices created 
by the Massachusetts Constitution must meet residency requirements 
different from those of voters. Mass. Const., Pt. 2, c. 2, § 1, Art. 2; § 2, 
Art. 1 (seven years for governor and lieutenant governor); Arts. 16, 17, 
and 22 of the Arts, of Amend, of the Mass. Const, (five years for coun- 
cillor, secretary, treasurer, auditor, attorney general, and senator); and 
Art. 21 of the Arts, of Amend, of the Mass. Const, (one year in district 
for representative). Similarly, holders of public offices created by the 
Federal Constitution must also meet certain qualifications not required 
of voters. U. S. Const., Art. I, § 2 (Representative must be United 
States citizen for seven years, at least 25 years of age, and an inhabitant 
of state in which chosen); Art. I, § 3 (Senator must be United States 
citizen for nine years, at least 30 years of age, and an inhabitant of state 
for which chosen); and Art. II, § 1 (President must be United States 
citizen, at least 35 years of age, and a resident of the United States for 
fourteen years). Opinion of the Justices, supra, at 604-607. 



P.D. 12 73 



Section 302 of the Act contains no provision with respect to the right 
to hold office. It is limited to the right to vote. Its effect, then, is re- 
stricted to modifying the Massachusetts Constitution and laws by sub- 
stituting the age 18 wherever the age 21 appears as a qualification for the 
right to vote. Art. 3 of the Arts, of Amend, of the Mass. Const. G. L. c. 
5\. § I. See U. S. Const., Art. 6, CI. 2. 

Although the Commonwealth, by taking appropriate action, has the 
power to set age qualifications for holders of public office different from 
the age qualification of voters, it has not done so. The implication has 
persisted through the years that in the absence of a provision for a 
specific qualification for public office, the qualification to be eligible to 
vote applies. This implication has arisen from usage and from interpreta- 
tion of the Massachusetts Constitution, particularly Article 9 of the De- 
claration of Rights, to which you refer, which provides that "the in- 
habitants of this commonwealth, having such qualifications as they shall 
establish by their frame of government, have an equal right to elect of- 
ficers, and to be elected, for public employments." Opinion of the Jus- 
tices, supra, at 608. 

Since voter qualifications must govern in the absence of specific pro- 
vision for different qualifications, the change in age requirement for vot- 
ers from 21 to 18 causes the same change in the age requirements of hol- 
ders of public office. Opinion of the Justices, supra at pp. 608-610. 

I answer your second question affirmatively subject to the addition to 
the exceptions you list of the office of President since he must be at least 
35 years of age. 

Your third question, like your first, relates to Section 201 of the Act 
and is as follows: 

"There appears a dual requirement in Article 20 of the 
Amendments of the Constitution that: 'No person shall have 
the right to vote, or he eligible to office under the constitution 
of this commonwealth, who shall not be able to read the con- 
stitution in the English language, and write his name,' . . . 
Does this mean that if a person cannot read or write he can- 
not hold office?" 

What I have said in response to your second question applies equally 
here. In view of the fact that the Commonwealth has made specific pro- 
vision in the Constitution that one must be able "to read the Constitu- 
tion in the English language, and write his name" to be eligible to hold 
office, this requirement is not affected by Section 201 relating only to 
voter eligibility. 

I, therefore, answer your third question affirmatively. 

1 caution you that, although both sections about which you have in- 
quired have withstood constitutional challenge in the United States Dis- 
trict Court for the District of Columbia (Christopher v. Mitchell, 39 U. 
S. Law Week 2196), the Supreme Court of the United States recently 
has taken under advisement four original suits in which the states of 
Oregon, Texas, Arizona and Idaho attack the constitutionality of the 



74 P.D. 



same sections. See 39 U.S. Law Week 3173. I had hoped these cases 
would have been decided before this opinion was given. Unfortunately, 
they have not. I, therefore, suggest that, pending the outcome of those 
cases, your instructions to election officials provide some means of iden- 
tifying those voters who would not qualify but for Section 201 of the Act 
and those candidates for office who would not qualify but for Section 
302 of the Act. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 24 December 10, 1970 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Mr. Secretary: 

You have requested an opinion whether you may authorize the use of 
a representation or replica of the Great Seal of the Commonwealth as a 
"backdrop" for portions of television news programs which pertain to 
"state house news." You inform me that application has been made to 
you for such permission, in view of the fact that you have custody of the 
Great Seal. It is my opinion, for the reasons hereinafter stated, that you 
may not grant such permission because the use to which you refer would 
constitute an advertising and/or commercial use of the Great Seal which 
is prohibited. 

While custody of the Great Seal of the Commonwealth is committed 
to you by statute. General Laws, c. 9, § II, the use of a reproduction or 
replica of the Seal is also strictly regulated by statute and is not a matter 
of administrative discretion. General Laws, c. 264, § 5 prohibits the use 
of "any representation of the arms or great seal of the commonwealth 
for any advertising or commercial purpose ..." and provides a penalty 
of a fine of not less than ten nor more than one hundred dollars or im- 
prisonment for not more than one year, or both, for commission of that 
offense. Although the prohibition has been construed by prior Attorneys 
General as not applying to advertising by the Port of Boston Authority 
(Op. Atty. Gen., April 16, 1974, p. 92) or by the Division of Savings 
Bank Life Insurance (Op. Atty. Gen., November 2, 1925), the distinc- 
tion in those cases was that the advertising was for a governmental pur- 
pose and by a governmental unit. In the case you present, it is my opin- 
ion that the use would be for an advertising or commercial purpose 
which is prohibited by the statute. See Commonwealth v. R. I. Sherman 
Manuf. Co., 189 Mass. 76, 79. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



P.D. 12 75 



Number 25 December 16, 1970 

David M. Waliwork. M.D. 
Secretary, Board of Registration 

in Medicine 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Doctor Waliwork: 

You have requested my opinion with respect to the legality of a deci- 
sion of the Board of Registration in Medicine denying an application for 
further limited registration submitted by a physician who is not regis- 
tered to practice medicine within the Commonwealth. The physician in- 
volved, who is a graduate of a Canadian medical school, has already 
been granted five years of limited registration by the Board, and he de- 
sires further limited registration so that he may accept and perform the 
duties of Director of Evaluative Studies (Director of Clinical 
Psychiatry) at the Boston University — Department of Mental Health 
Community Mental Health Center. 

In support of his application for limited registration, the physician ar- 
gues that the provisions of St. 1968, c. 234, as amended by St. 1969, c. 
179, require that the Board grant the application inasmuch as he is a 
graduate of a foreign medical school. You have advised in your letter 
that the Board's denial (which has not been made final) is based on the 
Board's opinion that graduates of Canadian medical schools are not 
graduates of foreign medical schools. In this respect, you inform me that 
it has been the practice of the Board to register graduates of Canadian 
medical schools on the same basis as graduates of United States medical 
schools. 

In considering your request, I have confined myself solely to the 
question whether a graduate of a Canadian medical school is a graduate 
of a foreign medical school within the meaning of St. 1968, c. 234, as 
amended by St. 1969, c. 179. For the reasons hereinafter stated, I an- 
swer that question in the affirmative. On the assumption that the 
Board's denial of the application for limited registration is based solely 
on a contrary and erroneous construction of the statute, it is my opinion 
that the application must be granted. 

Limited registration is governed by G. L. c. 1 12, § 9 which provides: 
"An applicant for limited registration under this section 
who shall furnish the board with satisfactory proof that he is 
twenty-one or over and of good moral character, that he has 
creditably completed two years of a premedical course of 
study in a college or university and not less than three and 
one half years of study in a legally chartered medical school 
having the power to grant degrees in medicine, and that he 
has been appointed an interne, fellow or medical officer in a 
hospital or other institution of the commonwealth, or of a 



76 P.D. 



county or municipality thereof, or in a hospital or clinic which 
is incorporated under the laws of the commonwealth or in a 
clinic which is affiliated with a hospital licensed by the de- 
partment of public health under authority of section seventy- 
one of chapter one hundred and eleven, or in an out-patient 
clinic operated by the department of mental health, or in the 
department of public health for duty in clinics or in programs 
operated or approved by the department of public health, or 
in programs approved by the board of registration in medicine 
in the commonwealth and leading toward certification by spe- 
cialty boards recognized by the American Medical Associa- 
tion, may upon payment of five dollars, be registered by the 
board as an interne, fellow or medical officer for such time as 
it may subscribe; but such limited registration shall entitle the 
said applicant to practice medicine only in the hospital, in- 
stitution, clinic or program designated on his certificate of li- 
mited registration, or outside such hospital, institution, clinic 
or program for the treatment, under supervision of one of its 
medical officers who is a duly registered physician, of per- 
sons accepted by it as patients, or in any hospital, institution, 
clinic or program affiliated for training purposes with the hos- 
pital, institution, clinic or program designated on such certifi- 
cate, which affiliation is approved by the board and in any 
case under regulations established by such hospital, institu- 
tion, clinic or program. The name of any hospital, institution, 
clinic or program so affiliated and so approved shall also be 
indicated on such certificate. Limited registration under this 
secUon may be revoked at any time by the board." 
Pursuant to the above-quoted section, registration shall be only "for 
such time as it [the board] may prescribe" and "may be revoked at any 
time by the board." The Board, then, has broad discretion with respect 
to issuing limited registrafions. In the absence of a showing that the 
Board has acted arbitrarily, capriciously or discriminatorily, its action 
was proper unless the provisions of St. 1968, c. 234, as amended by St. 
1969, c. 179, required it to extend the applicant's limited registration. 
That special act provided: 

"Notwithstanding the provisions of any other law or regu- 
lation, the limited registration for the practice of medicine is- 
sued to a physician who is a graduate of a foreign medical 
school shall be extended so long as such physician is an em- 
ployee of the commonwealth and works in a state hospital, 
state school or other mental health or retardation facility, or 
is a municipal employee working in a municipal hospital, and 
otherwise complies with the requirements for limited registra- 
tion." St. 1968, c. 234, as amended by St. 1969, c. 179. 
The design and effect of the special act, as applied here, is to require 
the Board to extend limited registration issued to the physician involved 



P.D. 12 77 



if he (1) graduated from a "foreign"" medical school, (2) is employed by 
the Commonwealth in a mental health facility, and (3) otherwise com- 
plies with the requirements for limited registration. As to (2), no ques- 
tion is raised. I assume that the applicant has ''otherwise" met the re- 
quirements for limited registration and, thus, the only remaining ques- 
tion is whether he is a graduate of a "foreign"" medical school. 

The word "foreign" in the statute must be construed, according to its 
common usage (G. L. c. 4, § 6). So construed, the words "foreign medi- 
cal school"" mean a medical school not located in the United States. 
Where the Legislature has wished to classify graduates of Canadian 
medical schools with graduates of medical schools in the United States, 
it has done so in express terms. See, e.g., G. L. c. 112, § 2. Further- 
more, when G. L. c. 1 12. § 2 was first amended to provide an additional 
pre-examination requirement of graduates of "medical schools legally 
chartered in a sovereign state other than the United States or Canada,"' 
the Legislature stated that the purpose of the amendment was to provide 
"for the screening of graduates of certain foreign medical schools for the 
purpose of determining their qualifications for admitting them to exami- 
nation for licenses to practice in the commonwealth . . ."" (Emphasis 
supplied.) St. 1955, c. 622. The apparent intent of the Legislature in 
using the word "certain"" was to exclude Canadian schools from, the 
category of "foreign medical schools."" Here the Legislature has em- 
ployed no such word to modify "foreign medical school."" i therefore 
conclude that the Legislature intended the special act to apply to 
graduates of all foreign medical schools, including those in Canada. 

I appreciate the fact that the Board has always registered graduates of 
Canadian medical schools on the same basis as graduates of medical 
schools in the United States. Nevertheless, the meaning of the special 
act is plain. Any modification of the act must come from the Legislature. 
Coniinonwealtli v. Antonio, 333 Mass. 175, 178. 

Since the special act applies in this case, the Board cannot deny the 
applicant further limited registration so long as he has met the require- 
ments for limited registration and is employed by the Commonwealth of 
Massachusetts in a mental health facility. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 26 December 22. 1970 

Honorable Alfred L. Frechette, M.D. 
Commissioner of Public Health 
600 Washington Street 
Boston, Massachusetts 021 1 1 

Dear Commissioner Frechette: 

You have requested my opinion on a question relating to approval by 
your Department of a proposed sewerage system which would serve 35 



78 P.D. 12 



single family dwellings in a real estate subdivision in West Barnstable. If 
approved, the system would be installed by the developer and adminis- 
tered after sale of the homes by an association of the lot owners. You 
have informed me that it is the Department's policy in such situations to 
disapprove a sewerage system if there is no guarantee of collection of 
funds to ensure operation, maintenance, and periodic rehabilitation. 
Such disapproval protects the public health by preventing the installa- 
tion of a system where the local municipality has not agreed to assume 
ownership of the sewerage system to ensure such operation, main- 
tenance and rehabilitation. As you note, if a sewerage system is not 
maintained properly, the public health can be endangered. 

Specifically, you ask: 
"Is the Department of Public Health's policy and decision (refusal be- 
cause of the lack of guarantee of funds for long term continuous mainte- 
nance and periodic rehabilitation of the works) a proper interpretation of 
Sections 6 and 7 of Chapter 83, or other laws pertaining to maintenance 
or prevention of nuisance or conditions which are likely to create objec- 
tionable results in its neighborhood from sewage works?" 
For the reasons hereinafter stated, I answer your question in the affirm- 
ative. 

In considering your question, it is necessary to review the relevant 
statutory provisions. General Laws, c. 83, § 6 provides: 

"A town, with the approval of the department of public 
health, after a public hearing by said department of all parties 
interested, of which notice shall be given by publication in 
one or more newspapers, may purchase land within its limits, 
or take the same by eminent domain under chapter seventy- 
nine, for the treatment, purification and disposal of sewage. 
Towns or persons owning or operating filter beds or other 
works for the treatment, purification and disposal of sewage 
shall provide and maintain works adequate for the treatment 
of the sewage at all times, and shall operate such works in 
such manner as will prevent a nuisance therefrom or the dis- 
charge or escape of unpurified or imperfectly purified sewage 
or effluent into any stream, pond or other water, or other ob- 
jectionable result." 

General Laws, c .83. § 7 provides: 

"If the department of public health determines upon ex- 
amination that a filter bed or other works for the treatment, 
purificafion and disposal of sewage causes the pollution of a 
stream, pond, or other water, or is likely to become a source 
of nuisance or create objectionable results in its neighborhood 
by reason of defective construction, inadequate capacity or 
negligence or inefficiency in maintenance or operation or 
from other cause, it may issue notice in writing to the town or 
person owning or operating such works requiring such en- 
largement or improvement in the works or change in the 



P.D. 12 79 



method of operation thereof as may be necessary for the 
proper maintenance and operation of the works and the effi- 
cient purification and disposal of the sewage. If said depart- 
ment determines after investigation that the unsatisfactory 
operation of a sewage disposal system is due wholly or partly 
to the discharge into the system of manufacturing waste or 
other substance of such character as to interfere with the effi- 
cient operation of said works, it may if necessary prohibit the 
entrance of such waste or other material, or may regulate the 
entrance thereof into the system, or may require the treat- 
ment of such waste or other material in such manner as may 
be necessary to prevent its interference with the operation of 
the works." 

General Laws, c. Ill, § 5 provides, in pertinent part: 

"The department shall take cognizance of the interests of life, 
health, comfort and convenience among the citizens of the 
commonwealth; ... It shall have oversight of inland waters, 
including surface and subsurface waters and sources of water 
supply, and shall control the pollution or contamination of 
any or all of the lakes, ponds, streams, tidal waters and fiats 
within the commonwealth and of tributaries of such tidal wa- 
ters and fiats. . . .'' 

General Laws, c. Ill, § 17 provides, in pertinent part: 

"The department shall consult with and advise . . . persons 
having or about to have systems of water supply, drainage or 
sewerage as to the most appropriate source of water supply 
and the best method of assuring its purity, or as to the best 
method of disposing of their drainage or sewage with refer- 
ence to the existing and future needs of other towns or per- 
sons which may be affected thereby . . . Towns and persons 
shall submit to said department for its advice and approval 
their proposed system of water supply or of the disposal of 
drainage or sewage, and no such system shall he estahUshed 
without such approval . . .'" (Emphasis supplied.) 

The statutory scheme of regulation of water and sewerage systems 
evinces a clear legislative intent, in my opinion, that the Department of 
Public Health have plenary control over such systems, not only as to 
their initial approval but also as to their continued operation. See II Op. 
Atty. Gen., p. 46 (1899). In view of the statutory command found in G. 
L. c. 83, § 6 that persons operating and owning sewerage treatment 
facilities "provide and maintain works adequate for the treatment of the 
sewage at all times" and the Department's extensive powers found in 
G. L. c. 83. § 7 to order corrective action once pollution is detected or a 
nuisance becomes apparent, I think it clear that the Department may in- 
quire into the subject whether funds to operate, maintain and rehabilitate 
a proposed sewerage system will be guaranteed once the system be- 
comes operative. If it appears that funding is speculative, depends upon 



80 P.D. 12 



voluntary concerted action by lot owners in a subdivision, or is difficult 
to enforce, then the Department may properly withhold its approval of a 
proposed system. Inasmuch as the Town of Barnstable has no municipal 
sewerage system in the area of the proposed subdivision and the Town 
has not agreed to assume ownership once the system becomes opera- 
tive, it is my opinion that the Department's decision to disapprove the 
system is not violative of the applicable statutes. 

In reaching my conclusion, I have considered the provisions of G. L. 
c. 183A, the so-called "condominium law,'' and find them inapplicable. 
In particular, G. L. c. 183A, § 11(a) requires that the by-laws of a con- 
dominium organization include "[t]he method of providing for the 
necessary work of maintenance, repair and replacement of the common 
areas and facilities and payments therefor, including the method of ap- 
proving payment vouchers." That section is not applicable here because 
the proposed subdivision is not a condominium. However, even in situa- 
tions involving condominiums, the Department is not ousted of its 
power to approve or disapprove a proposed sewerage system by the 
provisions of the section. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 27 December 23, 1970 

Honorable John W. Sears, Commissioner 

Metropolitan District Commission 

20 Somerset Street 

Boston, Massachusetts 02108 

Dear Mr. Sears: 

Acting Commissioner Max Rosenblatt requested my opinion on sev- 
eral questions so that your Commission can proceed effectively in deal- 
ing with an order of the Water Resources Commission that the Met- 
ropolitan District Commission chlorinate the effluent at the Clinton 
Sewage Treatment Plant. 

Specifically, the questions posed are the following: 

1. "Does Chapter 462, Acts of 1954, negate previous sta- 
tutes relating to transfer of the Clinton Sewage Treatment 
Plant facilities to the Town of Clinton? 

2. 'Ts the Commission or is the Town of Clinton responsible 
for the additional construction, maintenance and opera- 
tional costs which will be involved in the chlorination of 
the effluent of the Clinton Sewage Treatment Plant? 

3. "Can the Metropolitan District Commission construct 
capital supplementary improvements at the Clinton Sew- 
age Treatment Plant without authorization in the form of 
special legislation? 



P.D. 12 81 



4. "Is the Metropolitan District Commission authorized to 
construct supplementary facilities without compensation 
from the Town of Clinton?" 
Chapter 557 of the Acts of 1898 authorized the then Metropolitan 
Water Board to take lands in the towns of Clinton and Lancaster and to 
erect and maintain thereon a plant for the disposal of sewage of the town 
of Clinton. 

Section 3 of the Act provided: 

"The metropolitan water board shall maintain and operate 
the works constructed by it, unless otherwise agreed by said 
board and the Town of Clinton, until the sewage of said town 
shall have outgrown the normal capacity of the south branch 
of the Nashua river to properly dispose thereof; and then said 
board shall transfer to said town all the works, lands, water 
rights, rights of way, easements and other property, con- 
structed and acquired under the provisions hereof, upon such 
terms as may be agreed upon by said board and said town, 
and thereafter said works, lands, water rights, rights of way, 
easements and other property shall be owned, maintained and 
operated by the Town of Clinton under the supervision and 
control of the state board of health, and said town shall pay to 
the Commonwealth for the property so transferred such sum 
or sums, if any, as may be agreed by said town and said 
board to be just and proper ..." 

Section 4 of the Act further provided that if the Metropolitan Water 
Board and the Town of Clinton were unable to agree upon the proper 
time or the terms under which the transfer of the Sewage Treatment 
Plant should be made, either party could apply to the Supreme Judicial 
Court for a determination of any matter in controversy. 

Several attempts made over the years by the Metropolitan Water 
Board to have the Sewage Treatment Plant taken over by the Town of 
Clinton were ineffective, so that in 1954 the Plant was still in the control 
of the successor Metropolitan District Commission. That year, by c. 462 
of the Acts of 1954, the Legislature provided for the reconstruction of 
the Clinton Sewage Disposal Works. 

Section 1 of this Act specified in relevant part: 

"The metropolitan district commission shall . . . begin the 
construction of a modern plant to replace the existing works 
now serving the town of Clinton . . . Said metropolitan dis- 
trict commission shall continue to maintain said sewage dis- 
posal works upon their completion ..." (Emphasis supplied.) 
The question for resolution, then, is whether the above provision of 
St. 1954, c. 462 impliedly repealed that part of St. 1898, c. 557, § 3 allow- 
ing for the turning over of the Sewage Treatment Plant upon tne agree- 
ment of the Town of Clinton and further mandating such turnover upon 
outgrowth of the normal disposal capacity of the south branch of the 
Nashua River. It is my opinion that it did. 



82 P.D. 12 



The repeal of statutes by implication is not a principle favored by the 
courts. Homer v. Fall River, 326 Mass. 673. However, it does have its 
proper place in judicial construction, deriving ''from the basic concept 
that it is the duty of the court to ascertain the legislative intent and to 
effectuate it." Doherty v. Commissioner of Administration, 349 Mass. 
687, 690. The legislative intent to repeal or supersede the prior provision 
must plainly and clearly appear. Dudley v. City of Cambridge, 341 
Mass. 543. "The test of the applicability of the principle of implied re- 
peal is whether the prior statute is so repugnant to and inconsistent with 
the later enactment covering the subject matter that both cannot 
stand.*** Repugnancy and inconsistency may exist when the Legisla- 
ture enacts a law covering a particular field but leaves conflicting prior 
prescriptions unrepealed.*** Where such a conflict does appear it is the 
court's duty to give effect to the Legislature's intention in such a way 
that the later legislative action may not be futile. The earlier enactment 
must give way . . ." Doherty v. Commissioner of Administration, supra, 
at 690, and cases cited. The earlier statute is impliedly repealed only to 
the extent of the inconsistency. Nassar v. Commonwealth, 341 Mass. 
584, 589. 

In my view it is impossible to avoid the plain and clear intent ex- 
pressed in the provision: "Said metropolitan district commission shall 
continue to maintain said sewage disposal works upon their comple- 
tion." St. 1954, c. 462, § 1. In addition to this, Section 3 of the Act di- 
rected that "all costs of future maintenance" of the new plant should be 
borne by the Metropolitan Water District, a division of the Metropolitan 
District Commission under G. L. c. 92. 

These pronouncements are repugnant to and inconsistent with the ear- 
lier Act's allowance for Commission divestiture of the works. There- 
fore, it is my opinion that under the test of Doherty v. Commissioner of 
Administration, supra, the Legislature's intention was to supersede the 
prior provision, and the earlier enactment must give way to the extent of 
the inconsistency. 

Buttressing this conclusion is the fact that the 1954 Act called for the 
Commission "to replace" the then existing works. It is therefore 
reasonable and apparent that the directive that the Commission continue 
to maintain the Treatment Plant was meant "to replace" the earlier 
legislative provision for divestiture of control. 

In accordance with the above, it is my opinion that: 

(l)St. 1954, c. 462 superseded St. 1898, c. 557 relating to 
transfer of the Clinton Sewage Treatment Plant facilities 
to the town of Clinton. 

(2) Consequently, the Metropolitan District Commission, and 
not the Town of Clinton, is responsible for the additional 
construction, maintenance and operational costs which 
will be involved in the chlorination of the Clinton Treat- 
ment Plant effluent. 



P.D. 12 83 



The next question for consideration is whether the Commission can 
construct capital supplementary improvements at the Clinton Plant 
without special legislative authorization. 

The Town of Clinton is not included in the Metropolitan District 
under G. L. c. 92, nor is there mention therein of the Clinton Sewage 
Treatment Plant. The Treatment Plant is sui generis under St. 1954, c. 
462, and such provisions of St. 1898, c. 557 as remain consistent, and 
such sums as are authorized for construction of the plant are controlled 
by the 1954 Act. The Act provides in Section 1: ''For the purpose of 
constructing said plant [the Commission] may expend such sums as may 
be necessary but not exceeding the amount authorized to be borrowed 
under section three of this act." Section 3 specifies: "To meet the ex- 
penditures necessary in carrying out the provisions of this act, the state 
treasurer shall . . . issue and sell . . . bonds of the commonwealth . . . 
not exceeding in the aggregate the sum of six hundred and fifty thousand 
dollars." 

The Treasurer and Receiver General has informed me by letter dated 
December 21, 1970 that the full allowance of $650,000 has been issued 
and sold. As a result, there being no present authorization for funds with 
which to undertake additional construction at the Clinton Plant, it is my 
further opinion that: 

(3) The Metropolitan District Commission cannot construct 
supplementary improvements at the Clinton Sewage 
Treatment Plant without authorization in the form of spe- 
cial legislation. 

(4) Since the Metropolitan District Commission is not au- 
thorized to construct supplementary facilities without spe- 
cial legislation, I find it unnecessary to answer question 
(4). The Legislature will presumably decide upon cost al- 
location should it decide to authorize additional construc- 
tion. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 28 December 23, 1970 

Honorable Joseph L. Grace 
Maxor of the City of Gloucester 
City Hall 
Gloucester, Massachusetts 

Dear Mayor Grace: 

You have referred a communication to me which was received by the 
Gloucester City Council from the Gloucester Community Pier Associa- 
tion, Inc. (the Association) with a request that I render an opinion on 
the same. I have been furnished with a copy of a letter from the Associ- 



84 P.D. 12 



ation, addressed to the City Clerk, which states that it is "subject only 
to the supervision of the office of the Attorney General ..." On that 
basis, the Association has refused to comply with a request by the City 
that leases of the Gloucester State Fish Pier facilities (the Pier) be made 
available to the Gloucester Urban Renewal Authority. 

As you know, the Attorney General does not ordinarily render opin- 
ions to municipal officials. However, in the light of the circumstances of 
the particular situation presented, I deem it appropriate for me to ex- 
press an opinion on this matter. 

In essence, you ask if the Association is, as it says, subject only to the 
supervision of this Department. For the reasons hereinafter stated, I 
answer your question in the negative. 

I find from a review of records of this Department that the Associa- 
tion has periodically filed annual financial reports as a "public charity" 
with the Division of Public Charities in this Department. However, al- 
though reports are required to be filed annually and the necessary forms 
are mailed to each reporting organization every year, the Association 
has not filed any report since that filed for the calendar year 1966. I am 
enclosing a copy of the report filed for that year. 

Although the Association, as stated in its letter, has been referred to 
as a corporate entity, separate from the City, it was pointed out by the 
Supreme Judicial Court in Gloucester Ice & Cold Storage Co. v. 
Assessors of Gloucester, 337 Mass. 23, 26, footnote 6, that the Associa- 
tion has "some of the aspects of a special municipal 'authority' in view 
of the essentially public functions which it was designed to serve." 

It is also to be noted that the statutes applicable to the construction of 
the Pier in Gloucester provided that the City of Gloucester itself was to 
be the preferred lessee of the Pier, and if the City became such, the Pier 
and buildings were to be administered by the City Council or by a com- 
mission appointed by it. 

In my view it is clear that if, as the statutes contemplate, the Pier is 
leased to a charitable corporation, that corporation is to administer the 
Pier for the benefit of the City and its inhabitants and in lieu of operation 
of the Pier by the City itself. In this regard, I observe that St. 1931, c. 
311, § 1 originally authorized the construction of the Pier "[f]or the pur- 
pose of improving and developing Gloucester harbor for the promotion 
of the fish industry and commercial facilities of . . . Gloucester." 

The Association, as a charitable organization and lessee of the Pier is, 
in effect, administering a public charitable trust for the benefit of the 
City of Gloucester and its inhabitants. See American Institute of 
Architects v. Attorney General, 332 Mass. 619. 

In the circumstances, the Association, like any other trustee of prop- 
erty administered for the benefit of a municipality or its inhabitants, is 
subject to the provisions of G . L. c. 4 1 , § 53 , which provides that munic- 
ipal auditors shall at least once in every year audit the accounts of the 
charity and report thereon. To that extent at least, it is not true that the 
Association is subject only to the supervision of the office of the Attor- 
ney General. 



P.D. 12 85 



In enacting G. L. c. 41, § 53, the Legislature has, in my opinion, pro- 
vided a method for making available to the City of Gloucester the facts 
as to the operation of the Pier, which facts are clearly of interest to the 
officers and inhabitants of the City. Compare Mahoney v. Natick, 346 
Mass. 709. Inspection of the leases to which you refer must be consi- 
dered to be an integral part of the audit contemplated by the statute. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 29 January 15, 1971 

Honorable John W. Sears, Commissioner 

Metropolitan District Commission 

20 Somerset Street 

Boston, Massachusetts 02108 

Dear Commissioner Sears: 

You have requested my opinion whether the provisions of G. L. c. 92, 
§ 62B, which provide for overtime compensation for members of the 
Metropolitan District Police, apply to Captains of that police force who 
perform duty beyond their regular hours of service. It appears from your 
request that at certain times members of the Metropolitan District 
Police force have performed overtime service, and that at such times the 
M.D.C. police forces have been under the direction of a District Cap- 
tain and a Headquarters Captain. You have advised me that the Cap- 
tains' request for overtime compensation was denied because a captain 
"is a public officer and not an employee." You have further advised 
that an appeal under the police grievance procedure is now pending be- 
fore you. 

General Laws, c. 92, § 62B provides: 

"Notwithstanding any other provision of law, members of 
the police force of the commission who perform service 
beyond their regular hours of service shall be compensated 
therefor as overtime service, at an hourly rate equal to one 
and one half times the hourly rate of their regular compensa- 
tion for their average weekly hours of regular duty." 
In my opinion, the question you pose does not depend upon whether a 
Captain of the Metropolitan District Police is an "officer" of the Com- 
monwealth or an "employee". That distinction appears to have been the 
basis of an opinion rendered in 1952 by an Assistant Attorney General 
to the then Commissioner of Administration that Captains of the Met- 
ropolitan District Police were not entitled to overtime compensation, 
and, accordingly, the rules of the Director of Personnel and Standardi- 
zation have employed that distinction in denying overtime compensation 
to Captains. 



86 P.D. 12 



As I view the question, the only matter for resolution is whether Cap- 
tains are members of the Metropolitan District Police force. Since I 
conclude that they are, it follows that the overtime provisions of G. L. 
c. 92, § 62B should apply to them, any rule of the Director of Personnel 
and Standardization notwithstanding. Concededly, G. L. c. 7, § 28 con- 
fers upon the Director the authority to make rules and regulations with 
respect to overtime compensation "for permanent and temporary em- 
ployees, and for officers other than those exempted by such rules . . .," 
but the Director may not, of course, adopt rules which contravene clear 
statuliory provisions. I can discern no intent on the part of the Legisla- 
ture to affect or supersede the provisions of section 62B when it enacted 
St. 1954, c. 680, § 2 (G. L. c. 7, § 28, in substantially its present form). 
Compare Boston Elevated Railway v. Commonwealth, 310 Mass. 528, 
551. That being the case, the more specific statutory language found in 
section 62 B controls over the general rulemaking powers conferred on 
the Director by G. L. c. 7, § 28. 

In conclusion, then, it is my opinion that Captains of the Metropolitan 
District Police are entitled to overtime compensation pursuant to G. L. 
c. 92, §62B. 

Yours very truly, 
ROBERT H. QUINN 

Attorney General 



Number 30 January 25, 1971 

Honorable Arthur W. Brownell 
Commissioner of Natural Resources 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Brownell: 

You have requested my opinion whether G. L. c. 44, § 7(3) permits 
the Town of Canton to borrow funds for the acquisition of certain real 
estate. You indicate that the property in question — 33.8 acres of land, 
which includes two estate-type dwellings and accessory buildings — is 
to be acquired for conservation and recreation purposes within the intent 
of G. L. c. 40, § 8C. Specifically, you have asked whether G. L. c. 44, § 
7(3), 1 under which a city or town may incur debt for the purpose of "ac- 
quiring land for any purpose for which a city or town is or may hereafter 
be authorized to acquire land . . .," is to be construed as authorizing a 
debt financed acquisition only of "land" in the narrow sense, that is, 
exclusive of buildings standing thereon. It is my opinion, for the reasons 
hereinafter stated, that the word "land" as contained In clause (3) of c. 
44, § 7, cannot be so narrowly construed. 

' In pertinent part. Ci. L. c. 44. § 7 provides: "C ities and towns may incur debt, within the hmit of indebtedness pre- 
scribed in section ten. . . . (3) For acquiring land tor any purpose for which a city or town Is or may hereafter be au- 
thorized to acquire land, not otherwise specifically provided for: for the construction of buildings which cities or towns 
are or may hereafter be authorized to construct, or for additions to such buildings where such additions increase the floor 
space of said building, including the cost of original equipment and furnishings of said buildings or additions .." 



P.D. 12 87 



It has long been an elementary principle that "[tjhe term iand' legally 
includes all houses and buildings standing thereon." First Parish in 
Sudhury v. Jones, 8 Cush. 184, 189. Indeed, in a conveyance of a 
specified parcel of land "with all the buildings thereon," the quoted 
words are mere surplusage and have no legal effect {Crosby v. Parker, 4 
Mass. 110. 114), because, generally speaking, a building affixed to the 
soil is part of the realty. 

The Supreme Judicial Court recently pointed out that a reading of the 
word "land" as meaning only "land" in its original state, that is, exclu- 
sive of buildings and other improvements, would be to give that term an 
interpretation which varies from the meaning usually accorded it in the 
general laws. Board of Assessors of Amherst v. State Tax 
Commissioners, Mass. Adv. Sh. (1970) 781, 782. General Laws, c. 4, § 
7, provides that "In construing statutes the following words shall have 
the meanings herein given, unless a contrary intention clearly appears 
. . . Seventeenth, iand', iands' and 'real estate' shall include lands, 
tenements and hereditaments, and all rights thereto and interest 
therein." These words are of comprehensive import (see Monlton v. 
Commissioner of Corps. Ta.x'n., 243 Mass. 129, 132), and obviously in- 
clude land which has been improved by the presence of buildings. 3 Op. 
Atty. Gen. 34. Similar language is contained in the statute of frauds, G. 
L. c. 259, § 1, Fourth. Compare Hook Brown Co. v. Farnsworth Press, 
Inc., 348 Mass. 306, 310. In the statutes relating to eminent domain tak- 
ings (see, e.g., G. L. c. 79, §§1,2 and 4) the word "land" obviously is 
intended to include land which has been improved by the addition of 
buildings. 

In short, as stated by the Supreme Court of New Jersey in Bruro v. 
Long Beach, 21 N.J. 68, 72, the term "land" is, in the law, a word of 
art; it " 'is a nomen generalissimum and includes not only the soil, but 
everything attached to it, whether attached by the course of nature, as 
trees, herbage, and water, or by the hand of man, as buildings, fixtures 
and fences.' . . ." In the Bruro case the Court held that, no contrary 
intent appearing, a statute permitting a municipality to exchange 
"lands" owned by it for other "lands" desired for public use authorized 
an exchange of lands which had been improved with buildings. 

As I have previously noted, "unless a contrary intention clearly ap- 
pears," the Legislature must be deemed to have employed the term 
"land" in its usual comprehensive meaning. G. L. c. 4, § 7, Seven- 
teenth. See, also, G. L. c. 4, § 6, Third, providing that a statutory word 
or phrase is to be construed according to "Common and approved 
usage" unless "inconsistent with the manifest intent of the law-making 
body." Board of Assessors of Amherst v. State Tax Commission, 
supra, at 782. 

I discern nothing in G. L. c. 44, § 7(3), or in its legislative history, 
which indicates that the Legislature intended the word "land" to have 
other than its "common and approved" meaning. Compare Board of 
Assessors of Amherst v. State Tax Commission, supra, at 785-786. 



P.D. 12 



Clause (3) of G. L. c. 44. § 7 does not deal with the power of a munici- 
pality to acquire or to appropriate funds for the acquisition of real estate. 
Rather, that clause, along with each of the other clauses in § 7, merely 
sets forth the terms under which debt may be incurred in the exercise of 
powers which are to be found elsewhere. See, e.g., G. L. c. 45, § 3, 
providing for the taking or purchase of "land" for public parks. The fact 
that land has been improved by the presence of buildings apparently will 
not bar a town from taking or purchasing it for park purposes (Iris v. 
Hing/uini, 303 Mass. 401. 402-403), and there is no reason why such an 
acquisition would not qualify for debt financing under G. L. c. 44, § 7(2) 
("For acquiring land for public parks . . .""). The power to incur debt in 
the financing of such an acquisition is no less extensive in its subject 
matter (viz., "land") than is the power to make the acquisition. All bor- 
rowings authorized by G. L. c. 44, § 7 are subject to the strict fiscal 
controls set forth therein and to the limit of indebtedness prescribed in 
G. L. c. 44. § 10. Nothing in these provisions discloses any legislative 
fiscal policy which would only permit a debt-financed acquisition of land 
so long as that land has not been improved by the presence of buildings. 
Therefore, it is my opinion that the authority of a town to incur debt 
under G. L. c. 44, § 7(3) for the acquisition of land which it is otherwise 
authorized to acquire is not affected by the fact that the land has been 
improved by the presence of buildings. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 31 February 10, 1971 

Honorable Neil V. Sullivan 
Commissioner of Education 
182 Tremont Street 
Boston. Massachusetts 02111 

Dear Commissioner Sullivan: 

You have requested my opinion whether public schools are authorized 
to maintain sessions on the third Monday in February and the third 
Monday in April. According to the information you have provided, sev- 
eral communities did not hold sessions on days when bomb threats were 
received and have asked whether they may hold sessions on said days in 
order to maintain the minimum 180-day school year as mandated by the 
Board of Education. For the reasons hereinafter stated. I answer your 
question in the negative. 

The third Monday in February (Washington's Birthday) and the third 
Monday in April (Patriots' Day) are legal holidays. Mass. G. L. c. 4, § 
7, cl. 18. It is required that "public offices shall be closed on all legal 
holidays . . ." Mass. G. L. c. 136, § 12. Whatever the definition of 
"public offices" in other contexts, I am of the opinion that the Legisla- 
ture intended that public schools, with their necessary staffs and 



P.D. 12 89 



facilities, be included within the term in construing section 12. The hold- 
ing of public school sessions certainly does not appear within the list of 
activities permitted on legal holidays under Mass. G. L. c. 136, § 14. 

Finally, whatever doubt may exist whether public schools are "public 
offices," it is clear that certain areas of public schools (e.g., principal's 
and superintendent's offices) are most certainly "public offices," the 
closing of which on these holidays would in any event have the effect of 
preventing public school operations. Accordingly, while I sympathize 
with the desire of several communities to compensate for lost school 
days, such cannot be done by the expedient they propose. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 32 February 24. 1971 

Dr. Edward C. Moore, Chancellor 

Board of Higher Education 

182 Tremont Street 

Boston, Massachusetts 02111 

Dear Doctor Moore: 

You have requested my opinion whether business corporations, which 
are incorporrated or propose to incorporate for profit-making purposes 
under the provisions of General Laws, Chapter 156B, may provide 
either in their articles of organization or articles of amendment a provi- 
sion that they may grant academic degrees. As you note in your letter, 
the Board of Higher Education has the responsibility, upon reference 
from the Secretary of the Commonwealth, to investigate and make a de- 
termination concerning the incorporation of any college or educational 
institution seeking the power to grant degrees. You have advised me 
that until recently the Board has received applications only from non- 
profit corporations organized under the provisions of General Laws, 
Chapter 180, but that a request is now pending from a Chapter 156B 
corporation which seeks approval of articles of amendment to its articles 
of organization. For the reasons hereinafter stated, I answer your ques- 
tion in the affirmative. 

General Laws, c. 69, § 30 provides in part as follows: 

"The state secretary, before approving a certificate of or- 
ganization in connection with the proposed incorporation of a 
college, junior college, university or other educational institu- 
tion with power to grant degrees, or articles of amendment to 
the charter of an existing educational institution which will 
give it such power, or changing its name to a name which will 
include the term 'college', 'junior college' or 'university', 
shall refer such certificate or articles to the board of higher 
education. Said board shall immediately make an investiga- 



90 P.D. 12 



tion . . . and subject to the provisions of section 31, shall 
make a determination . . ., and shall forthwith report its find- 
ings to the state secretary ... If it appears . . . that said 
board does not approve of such certificate or articles, he shall 
refuse to endorse his approval thereon, otherwise he shall en- 
dorse his approval thereon unless he finds that the provisions 
of law relative to the organizafion of the corporation or the 
amendment to its charter have not been complied with ..." 
(Emphasis supplied.) 
Section 31 of Chapter 69 refers to junior colleges and provides in part 
that the Board of Higher Education shall not approve a certificate of in- 
corporation or articles of amendment in connection with the proposed 
incorporation of a junior college with power to grant degrees or an 
amendment of the charter of any such existing educational institution 
which will give it the power to grant junior college degrees, etc., unless 

"Second, the institution is organized under the laws of the 
commonwealth as a non-profit educational institution, and 
shall have operated as such an institution for . . . not less 
than one year immediately prior to the filing of the petition 
for such privilege ..." 
The specific requirement in G. L. c. 69, § 31 Second that a junior col- 
lege be organized "as a non-profit educational institution" and the ab- 
sence of any such express requirement in § 30 for a college, university or 
other educational institution lead to the conclusion that the latter types 
of institutions need not be non-profit organizations. Accordingly, a cor- 
poration whose articles of organization provide upon incorporation that 
its purposes include that of operating an educational institution with 
power to grant degrees comes within § 30 and the articles may be ap- 
proved. I find nothing in G. L. c. 156B, §§ 9 or 12 which indicates that a 
contrary result is required. 

In the instant case, a subsidiary question is raised by the fact that the 
c. 1 568 corporation was not originally organized for educational pur- 
poses and now seeks to amend its articles of organization to give it the 
power to grant degrees. While this question relates to the responsibilities 
of the Secretary of the Commonwealth, I am taking the liberty of an- 
swering it at this time and am also furnishing the Secretary with a copy 
of this opinion. The question arises because the articles of amendment 
would not constitute the "articles of amendment to the charter of an 
existing educational institution'^ and therefore at first blush such articles 
of amendment would appear not subject to approval by the Board under 
G. L. c. 69, § 30. However, there would seem to be no objection to fil- 
ing articles of amendment with the Secretary which add to the corporate 
purposes operation for specified educational purposes and then further 
amending the articles of organization to provide degree granting power. 
Furthermore, it is my opinion that what can be done by two separate 
amendments can obviously be done in one instrument provided that the 



P.D. 12 91 

amendment incorporating educational purposes is adopted first in time. 
Accordingly, 1 conclude that a Chapter 156B corporation is eligible 
for degree granting authority. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 33 March 1, 1971 

The Honorable Steven A. Minter 

Commissioner 

Department of Public Welfare 

600 Washington Street 

Boston, Massachusetts 021 11 

Dear Commissioner: 

You have requested my opinion on three questions relating to the fol- 
lowing facts which are in part stated in your letter of February 26, 1971, 
requesting my opinion and which in other part appear from certain 
documents you have appended to your letter. 

On February 22, 1971, a Probate Court of this Commonwealth en- 
tered an order granting to the Department of Public Welfare (the De- 
partment) temporary custody of a certain minor female (hereinafter re- 
ferred to as "the girl"). This order also gave to the Department "ex- 
press power to give or withhold consent to an abortion for (the girl) de- 
pending on its judgment and discretion as to whether or not such abor- 
tion is lawful and therapeutic." 

The girl's mother is deceased, and, her father, as appears from the 
statement of a physician on the staff of the hospital where the father is a 
patient, is non compos mentis as the result of injuries sustained in an 
automobile accident. Efforts by youf Department to secure legal guar- 
dianship for the girl from among other living relatives were unsuccessful. 

On January 16, 1971, a consultant physician, after examining the girl, 
reported to the Superintendent of the State Hospital where she was a 
patient (the State Hospital) that the girl was thought to be with child, 
and that, because of a history of severe recurrent bronchial asthma since 
birth, on account of which the girl "has been maintained almost con- 
stantly on adrenal steroid therapy, bronchodi lators and intermittent 
positive pressure breathing", pregnancy "would present increased risks 
of medical and respiratory complications". The physician recommended 
that the girl be "advised of the circumstances that indicate interruption 
of pregnancy for medical and genetic factors" and that her acceptance 
and the approval of her nearest relative should be obtained. 

On January 23, 1971, the suspected pregnancy was confirmed by 
laboratory tests. Subsequently, another consultant physician to the State 
Hospital, in an undated memorandum which you have identified as 
being of February 1, 1971, reported as follows with respect to the girl. 



92 P.D. 12 



"Since very early in her life she has required numerous admissions to 
the Children's Hospital and elsewhere because of severe attacks of 
bronchial asthma. In spite of routine treatment including hyposensitiza- 
tion, her asthma has been intractable and has necessitated the use of 
high, cortico steroid therapy intermittently from 1957 and continuously 
since I960. Because of the severity of her asthma she has spent most of 
her life in Foster Homes or in Hospitals, including a stay at the 
Children's Asthma Research Institute and Hospital in Denver from Oc- 
tober 1, 1964 until February of 1967. She was discharged from this latter 
institution on 15 mg. of Prednisone each day, and all attempts to reduce 
this dosage were followed by severe asthma attacks. 

"After a stay of several months at the Children's Hospital she was 
transferred on 8-31-67 to the Residential Asthma Rehabilitation Unit of 
the (State) Hospital for care. Her primary findings on examination were 
her stunting, hyper-inflation of her lungs and generalized fairly constant 
wheezing. During her stay at the (State) Hospital it has been necessary 
to keep her on high doses of Prednisone and at times it amounts to 60 
mg. of Prednisone per day. Despite high Prednisone dosages wheezing 
is not completely controlled and episodes of acute status Asthma has re- 
quired intravenous therapy and even transfer to Children's Medical 
Center on three of four occasions during this time. 

"As in most cases of intractable bronchial asthma there is a strong 
emotional overlay which will provoke acute asthma. Psychiatric therapy 
has been spotty, largely because there is no psychiatric help available in 
this institution. Her current medication consists of Tedral tablets three 
times per day and Tedral S.A. at bed time. Her Prednisone doses has 
varied from 20 to 40 mg. daily during the month of January. She requires 
IPPB with Isoproterenol morning and night and during acute periods 
much more. She is also on daily SSKI." 

After noting that the pregnancy test was positive, the same physician 
stated: "The Medical Staff of this hospital, including myself, feel very 
strongly that a pregnancy would add a severe stress to this girl's rather 
precarious state of health in that she is neither emotionally or physically 
capable of carrying the pregnancy to term without considerable risk. 
The danger of a deformed baby would also be enhanced because of her 
high dose steroid dependency." (Sic) 

The same physician recommended the girl's transfer to a private, gen- 
eral hospital "for medical gynecologic, and psychiatric evaluation for 
question of a therapeutic abortion." 

The girl was admitted to the private hospital, as recommended by the 
last-mentioned physician, on February 5, 1971. After examination, on 
February 12, 1971, the Obstetrician-Gynecologist-in-Chief of the private 
hospital reported to the Department in part that: 

"We find that she has severe bronchial asthma with chronic 
pulmonary insufficiency, aggrevated (sic) significantly by the 
pregnancy. Although compensated at this time and in no im- 
mediate danger we anticipate that the progression of the 



P.D. 12 93 

pregnancy, if allowed to continue, will cause severe respira- 
tory embarrassment and lead to potential critical decompen- 
sation. In other words, we expect the pregnancy to endanger 
her life at some time in the near future." 
On February 25. 1971. a further report was made as requested by you 
which stated in part: 

''1. abortion is a feasible procedure and in our honest belief 
is a medical necessity, 

2. this opinion corresponds with the general opinion of the 
average member of the practicing medical profession, 
and 

3. we collectively corroborate these statements." 

This report was signed by the physician designated to perform the 
abortion, a member of the private hospital's "Therapeutic Abortion 
Committee", the Obstetrician-Gynecologist-in-Chief who signed the re- 
port of February 12. 1971 and the hospital's Director. 

You state that the girl signed a permission for therapeutic abortion on 
February 4, 1971 and has remained constant since in her desire to have 
the abortion. You have informed me that her wishes "will at all times be 
important in any action I may take". 

You have asked me the following questions: 

"1. Under the foregoing facts and circumstances, would an 
abortion performed on (the girl) be lawful? 

2. Does the Department have the authority to consent to an 
abortion for (the girl)? 

3. Does the Department have the authority to pay for an 
abortion for (the girl) under the provisions of Chapter 1 19 
of Section 1, Section 6, and Section 15 of Chapter 118E 
or of any other provision of law?" 

1. With respect to your first question, G. L. c. 272, § 19 provides: 
Whoever, with intent to procure the miscarriage of a woman, 
unlawfully administers to her, or advises or prescribes for 
her, or causes any poison, drug, medicine or other noxious 
thing to be taken by her or with the like intent, unlawfully 
uses any instrument or other means whatever, or, with like 
intent, aids or assists therein, shall, if she dies in consequence 
thereof, be punished by imprisonment in the state prison for 
not less than five nor more than twenty years: and, if she 
does not die in consequence thereof, by imprisonment in the 
state prison for not more than seven years and by a fine of 
not more than two thousand dollars. 

As early as 1876, our Supreme Judicial Court held that the Judge pres- 
iding at a trial upon an indictment charging the defendant with lawfully 
procuring the miscarriage of a pregnant woman, had correctly instructed 
the jury in part as follows: 



94 P.D. 



"... (A) physician may lawfully procure the miscarriage of 
a woman pregnant with child, by any means appropriate and 
reasonable for that purpose, directly or indirectly applied, if 
in so doing he acts in good faith for the preservation of the 
life or health of such pregnant woman. The justification of a 
physician thus acting must depend upon his exercising his 
best skill and judgment, and in the honest belief that his acts 
directly applied to produce a miscarriage, or applied to the 
treatment of a disease so as to involve a miscarriage, as a not 
unusual incident of such treatment, are necessary to save 
such pregnant woman from great peril to her life or health.'' 
Commonwealth v. Brown, 121 Mass. 69, 76-77, 82. 

In the years since 1876, the Supreme Judicial Court has reiterated the 
rule of Commonwealth v. Brown in Commonwealth v. Nason, 252 
Mass. 545 (1925); Commonwealth v. Wheeler, 315 Mass. 394 (1944); and 
Commonwealth v. Briinelle, 341 Mass. 675 (1961). 

The most recent case involving the question of a violation of G. L. c. 
272, § 19 is Kudish v. Board of Registration in Medicine, 356 Mass. 98, 
Mass. Adv. Sh. 1969, 883 (June 2, 1969). The Court there held that "a 
physician may lawfully perform an abortion if he acts in good faith and 
in an honest belief that it is necessary for the preservation of the life or 
health of the woman" provided, of course, that the doctor's judgment 
corresponds "with the average judgment of the doctors' in the commu- 
nity in which he practices". Mass. Adv. Sh. 1969, 883, 884-885. 

It must be apparent to you from the foregoing excerpts from the deci- 
sions of the Supreme Judicial Court that no one except the jury (or a 
judge sitting in a court room where a trial by jury has been waived) hear- 
ing an indictment for violation of G. L. c. 272, § 19 can decide whether 
or not a particular abortion is lawful, after hearing the evidence and ap- 
plying the relevant law to the facts found. The question whether a given 
abortion is or is not lawful is a mixed question of law and fact that can 
only be decided by the judicial trier of fact. It has early and often been 
stated by Attorneys General of this Commonwealth that the Attorney 
General does not decide questions of fact in rendering opinions. "His 
[the Attorney General's] business is to deal with questions of law only." 
I. Op. Atty. Gen. 462, June 3, 1897. 1 must decline, therefore, to answer 
your first question. 

2. With respect to your question whether the Department has author- 
ity to consent to an abortion for the girl, I can only answer that a Prob- 
ate Court of this Commonwealth has entered an order granting legal cus- 
tody of the girl to your Department "with express power to give or 
withhold consent to an abortion [for the girl] depending on its judgment 
and discretion as to whether or not such abortion is lawful and therapeu- 
tic" (emphasis added). In my opinion you, as Commissioner, are au- 
thorized to act for the Department in this matter, or to designate one or 
more of your subordinates so to act. G. L. c. 18, § 3 as inserted by St. 
1967, c. 658, § 1, effective July 1, 1968 (and as later amended in irrele- 
vant respects). 



P.D. 12 95 



"The department (of public welfare) shall be under the direction, 
supervision and control of a commissioner of public welfare" (emphasis 
added). Compare, G. L. c. 19, § I, where it is spelled out that "supervi- 
sion and control" of the Department of Mental Health means that "(a)ll 
action of the department shall be taken by the commissioner, or under 
this direction, by such agents or subordinate officers as he shall deter- 
mine." The order of the Probate Court requires the Department to ex- 
ercise "judgment and discretion". Discretion, in circumstances such as 
this, means "freedom to act according to honest judgment," Paquette v. 
Fall River, 278 Mass. 172, 174. Corrigan v. School Committee of New 
Bedford, 250 Mass. 334, 339. 

" 'The term discretion implies the absence of a hard-and-fast rule. 
The establishment of a clearly defined rule of action would be the end of 
discretion, and yet discretion should not be a word for arbitrary will or 
inconsiderate action. 'Discretion means a decision of what is just and 
proper in the circumstances.' " Paquette v. Fall River, 278 Mass. 172, 
174. 

I. therefore, advise you that if you honestly determine, on the basis of 
the evidence you have, that the proposed abortion appears to you to be 
lawful and therapeutic, you may give your assent to the abortion as au- 
thorized by the decree of the Probate Court. 

Whether you should or not make that determination is, in part at least, 
a question of fact which is confided to your judgment and which is not a 
question for the Attorney General to answer. 

3. Finally, you have asked whether the Department has authority to 
pay for this abortion if performed. My answer is, that if the abortion is a 
lawful abortion, the Department may pay for it as medical assistance 
under G. L. c. 118E, § 15, and if it is not a lawful abortion the Depart- 
ment may not. Translating this answer into the practical realities of the 
situation, 1 advise you that if you make the honest judgment that an 
abortion would be lawful and, acting on that judgment, you give the 
Department's consent to that abortion, as authorized by the decree of 
the Probate Court, you may approve vouchers for the payment of the 

hospital and medical services involved. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 34 March 5. 1971 

Mrs. Glendora M. Putnam, Chairman 
Massachusetts Commission Ai>ainst 

Discrimination 
120 Tremont Street 
Boston, Massachusetts 

Dear Mrs. Putnam: 

On September 10, 1970, I rendered an opinion to you regarding the 
continuing validity of certain specified Massachusetts laws regulating 



96 P.D. 12 



the employment of women. My opinion stated that sections 53A, 56, 58 
and 59 of Chapter 149 of the Massachusetts General Laws were in con- 
flict with Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) 
and, as such, had been preempted and were null and void. I also stated 
that sections 53, 54, 55, 99 and 100-103 of Chapter 149 did not frustrate 
the purpose of Title VII and. as such, were not preempted by the Fed- 
eral act. Subsequent to the issuance of the September 30th opinion, I 
have had cause to modify my decision with respect to most of the stat- 
utes previously listed as not preempted. 

I am now of the opinion that the existence of a half-hour meal period 
for women mandated by G. L. c. 149, § 100 (as opposed to a required 
fifteen minute period for men) denies to women, in some instances, an 
extra fifteen minutes of compensated employment during the course of 
the working day. More importantly, however, the half-hour meal re- 
quirement extends a woman's working shift fifteen minutes beyond that 
of her male co-workers and, in so doing, prevents her from being avail- 
able to compete for overtime work commencing at the end of the male 
work shift. Consequently, both the direct and indirect effect of the half- 
hour mealtime provision is to deny to women an employment opportun- 
ity for which they are otherwise qualified. Such a denial constitutes dis- 
crimination in employment opportunity based upon sex and is in viola- 
tion of Title VII. Accordingly, in so far as sections 100, 101, and 102 of 
Chapter 149 require that women take one-half hour for any meal, those 
sections are preempted and are null and void. 

Likewise, it is my opinion that section 55 of Chapter 149 (which pro- 
hibits all females, regardless of medical condition, from working during 
the four weeks preceding and the four weeks subsequent to childbirth) is 
that type of inflexible class regulation which is not tailored to the 
physiological characteristics of individual workers and, as such, is 
preempted by Title VII. See, for a statement of the aforementioned 
standard against which state "protective" laws must be judged. Bone v. 
Colgate-Palmolive Company, 416 F. 2d 711, 717-18 (7th Cir. 1969); 
Weeks v. Southern Bell Telephone & Telegraph Company, 408 F.2d 
228, 235-36 (5th Cir. 1969); Cheatwood v. Southern Bell Telephone & 
Telegraph Company, 303 F. Supp. 754, 759-60 (M.D. Alabama 1969); 
Richards v. Griffith Rubber Mills, 300 F. Supp. 338, 340 (D. Oregon 
\969); Jones Metal Products Co. v. Walker, 2 FEP Cases 1 1 13 (D. Ohio 
1970); Local 246 Utility Workers v. Edison Co., 3 FEP Cases 21 (N.D. 
Calif. 1970). Accordingly, section 55 of Chapter 149 is null and void. 

And, finally, it is my opinion that Title VII also preempts the follow- 
ing portions of Chapter 149: section 53 (requiring pulleys or casters on 
receptacles weighing more than seventy-five pounds which are moved 
by women), section 54 (requiring the investigation and regulation of core 
rooms where women are employed) and section 103 (requiring that em- 
ployers provide seats for women both at and away from their area of 
work). 

Evaluation of these latter sections is made more difficult by the fact 
that they benefit rather than discriminate against women. However, 



P.D. 12 97 



Title VII was passed, not to aid women workers, but to outlaw em- 
ployment discrimination based upon sex. As one Court has stated: "it 
seems unlikely that Congress would enact a statute banning discrimina- 
tion based on sex and in doing so mean to grant special privileges to one 
sex at the expense of another." Rosen v. Public Service Electric Co., 2 
FEP Cases 1090, (D.N.J. 1970). Because sections 53, 54 and 103 con- 
tain classifications based exclusively upon sex, and because those clas- 
sifications have the effect of discriminating against male workers, it is 
my opinion that those sections are in violation of Title VII and as such 
are null and void. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 35 March 9, 1971 

Mrs. Helen C. Sullivan 
Director of Registration 
Department of Civil Service 

and Registration 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mrs. Sullivan: 

You have requested an opinion, on behalf of the Board of Registration 
of Professional Engineers and of Land Surveyors, whether cities and 
towns have the power to hire unregistered persons as city engineers and 
town engineers. For the reason hereinafter stated, I answer your ques- 
tion "No." 

General Laws, c. 112, § 81 D, which defines the term "practice of en- 
gineering," provides that: 

"A person shall be construed to practice or to offer to 
practice engineering who practices any branch of the profes- 
sion of engineering ... or who holds himself out as able to 
perform, or who does perform any engineering service or 
work or any other professional service or work designated by 
the practitioner or recognized by educational authorities as 
engineering ..." 
General Laws, c. 1 12, § 8 IT makes it a crime to practice or offer to 
practice engineering without being registered. I find nothing in the Gen- 
eral Laws which exempts city or town engineers from the requirements 
of registration or the penalties provided by section 8 IT. 

Accordingly, if the person employed by a municipality as an engineer 
is unregistered, he cannot act as an engineer. Moreover, even if he does 
not in fact act as an engineer, he cannot assume the title "Town En- 
gineer" of "City Engineer" because this would constitute an "offer to 



98 P.D. 



practice engineering." I conclude therefore that cities and towns cannot 
hire unregistered persons as city engineers or town engineers. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 36 March 9, 1971 

Honorable Edward J. Ribbs 
Commissioner of Public Works 
100 Nashua Street 
Boston, Massachusetts 021 14 

Dear Commissioner Ribbs: 

You have requested my opinion as to whether the Department of Pub- 
lic Works (DPW) may assess the Massachusetts Port Authority (MPA) 
for tidewater displacement. The DPW, you state, has issued to the 
MPA licenses numbered 5758 and 5759 to fill tide water. I understand 
that the filling is to be done in the vicinity of General Edward Lawrence 
Logan Airport and is not to be done in the ''port of Boston" as defined 
in the act creating the MPA (the Act). St. 1956, c. 465, §1.1 assume 
that the filling is to be done as part of an MPA project undertaken in 
accordance with the provisions of the Act or amendments thereto. 

The specific question you pose is "whether the Port Authority is li- 
able for an assessment for tide water displacement under the provisions 
of Section 21 of Chapter 91 ..." I answer your question in the negative. 

General Laws, c. 91 § 21 provides: 

"The amount of tidewater displaced by any structure 
below high water mark, or any filling of flats, shall be ascer- 
tained by the department, which shall require the persons 
who cause such displacement to make compensation therefor 
by excavating, under its direction, between high and low 
water mark in some part of the same harbor a basin for a 
quantity of water equal to that displaced; or by paying to the 
commonwealth, in lieu of such excavation, an amount esses- 
sed by the department, not exceeding thirty-seven and one 
half cents per cubic yard of water displaced; or by improving 
the harbor in any other manner satisfactory to the depart- 
ment. An assessment for tide water which has been dis- 
placed; may be recovered in contract in the name of the state 
treasurer." (Emphasis supplied.) 

The DPW has broad statutory authority over the licensing of persons 
to fill tidal flats. G. L. c. 91, § 14. This authority was narrowed some- 
what by the Act, which exempted the MPA from the requirement of ob- 
taining from the DPW a license to fill tidal flats in the "port of Boston, 
as defined in section one . . ." St. 1956, c. 465, § 6. It is true that here 
licenses are required since, as 1 understand, the filling is to be done out- 



P.D. 12 99 



side the limits of the "port of Boston," as defined in the Act. Op. Atty. 
Gen. (I960) p. 39. However, it does not follow from the fact that the 
MPA must be licensed to fill tidal flats that it is subject to the assess- 
ment for tide water displacement in view of the following provision in 
the Act: 

"The exercise of the powers granted by this act will be in 
all respects for the benefit of the people of the common- 
wealth, for the increase of their commerce and prosperity, 
and for the improvement of their health and living conditions, 
and as the operation and maintenance of the projects by the 
Authority will constitute the performance of essential gov- 
ernmental functions, the Authority shall not be required to 
pay any taxes or assessments upon any project or any prop- 
erty acquired or used by the Authority under the provisions of 
this act or upon the income therefrom, and the bonds issued 
under the provisions of this act, their transfer and the income 
therefrom (including any profit made on the sale thereof) shall 
at all times be free from taxation within the commonwealth, 
and no property of the Authority shall be taxed to a lessee 
thereof under section three A of chapter fifty-nine of the 
General Laws ..." (Emphasis supplied.) St. 1956, c. 465, § . 
17. 
Under this provision the MPA, which I have assumed is doing the fil- 
ling as part of a project under the provisions of the Act, is not required 
to pay the assessment whether or not it is required to have a license. 
General Laws, c. 91, § 21, upon the basis of which the assessment was 
made, is plainly inconsistent with this provision. The resolution of the 
conflict is in the Act itself which, passed long after G. L. c. 91, § 21 was 
enacted, provides that "[a]ll other general or special laws, or parts 
thereof, inconsistent herewith are hereby declared to be inapplicable to 
the provisions of this act ..." St. 1956, c. 465, § 29. General Laws, c. 
91, § 21 is thereby rendered "inapplicable" in the present circum- 
stances, and the exempting provision in the Act governs. 
The answer to your question, therefore, is: "No." 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 37 March 9. 1971 

Mr. Thomas J. Legere, Director 

Division of Motorhoats 

100 Nashua Street 

Boston, Massachusetts 02114 

Dear Mr. Legere: 

You have requested my opinion on a question relating to the arrest 
powers of enforcement personnel of your Division under St. 1970, c. 



100 P.D. 12 



589. Specifically, you ask whether the enforcement personnel of the Di- 
vision of Motorboats have the authority of arrest under the recently 
enacted Snowmobile and All Terrain Vehicle Law. For the reasons 
hereinafter stated, I answer your question in the affirmative. 

In considering your question it is necessary to review certain pertinent 
statutory provisions. General Laws c. 90B, § 13 provides: 

"All officers empowered to enforce this chapter may arrest 
without a warrant any person found violating any provision of 
this chapter or of any rule or regulation made under authority 
hereof. Such officers may in the performance of their duties 
enter upon and pass through or over private lands and prop- 
erty whether or not covered by water." 
Chapter 589 of the Acts of 1970, known as the "Snowmobile Act,'' 
amended c. 90B by adding sixteen sections, §§ 20-35, to said chapter. 
Section 32 provides: 

"The provisions of section twenty-one to thirty-four, inclu- 
sive, and of all rules and regulations made under authority 
hereof shall be enforced by the director or his duly appointed 
agents, by police officers, by fish and game wardens, by 
members of the state police, by enforcement officers of the 
department of natural resources and by city, town and met- 
ropolitan district commission police officers. Whoever while 
operating or in charge of any snow vehicle or recreation vehi- 
cle, other than on property owned by him, refuses to stop 
such snow vehicle after having been requested or signalled to 
do so by any such officer, or whoever refuses to give his true 
and correct name and address or refuses to display the cer- 
tificate of number of such vehicle and surrender to such of- 
ficer for examination shall be punished by a fine of not more 
than fifty dollars. Such officers may, in the performance of 
their duty, enter upon and pass through or over private lands 
or property. 

"Every officer authorized to enforce the provisions of this 
chapter, or any rule, regulation, ordinance or by-law made 
under authority hereof, shall report to the director, on forms 
provided by him and in such manner as he may prescribe, 
every violation of such chapter, rule, regulation, ordinance or 
by-law." 
At no point does St. 1970, c. 589 refer to the authority to arrest. How- 
ever, a close reading of the new provisions of c. 90B makes it clear that 
the Legislature intended to create similar areas of authority for the en- 
forcement personnel of the "Snowmobile Act" as presently exist for the 
enforcement personnel of the Division of Motorboats. Compare G. L. 
c. 908, §§ 12 and 14 with St. 1970, c. 589, §§ 32 and 34. 

In my opinion, it would have been superfluous for the Legislature to 
make further provisions for the authority to arrest for violations of c. 589 
in view of G. L. c. 908, § 13, which provides that "</// officers empow- 



P.D. 12 



eied to enforce this chapter may arrest without a warrant any person 
found violating any provision of this chapter or of any rule or regulation 
made under authority hereof." (Emphasis supplied.) If the Legislature 
had intended to limit the applicability of Section 13 to violations of the 
motorboat law, it should have done so expressly. 

Finally, I note that general principles of statutory construction require 
that so far as possible a statute is to be construed in conjunction with 
other statutes enacted at different times to the end that there may be a 
harmonious and consistent body of law. Morse v. Boston, 253 Mass. 
247, 252. 

In the present instance, to ignore the words in Section 13, i.e., "All 
officers empowered to enforce this chapter," would circumvent the ex- 
pressed legislative intent and would render the plain statutory words 
meaningless. I therefore conclude that the enforcement personnel of 
your Division have the authority to arrest persons for violations of the 
provisions of G. L. c. 90B, §§ 20-35. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 38 March 16, 1971 

Honorable Edward J. Ribbs 
Commissioner of Public Works 
100 Nashua Street 
Boston, Massachusetts 021 14 

Dear Commissioner Ribbs: 

You have requested an opinion as to the effect of the Presidential 
proclamation suspending the Davis-Bacon Act on the provisions of G. 
L. c. 149, §§ 26, 27. More specifically^, your inquiry is whether the pro- 
visions of Mass. G. L. c. 149, §§ 26, 27 have also been suspended by the 
Presidential proclamation. 

For the reasons hereinafter stated, I must answer your question 
"no." 

In this regard, G. L. c. 149, § 26 provides that the rate of wages paid 
to mechanics, apprentices, teamsters, chauffeurs and laborers employed 
in the construction of public works by the Commonwealth shall not be 
less than the rate of wages to be determined by the Commissioner of 
Labor and Industries. Under section 27 of said chapter, the said Com- 
missioner is required to prepare a schedule of wages for such employees 
and this schedule must be made a part of any call for bids or contract 
entered into for the construction of public works. There is no provision 
in either of these sections which provides for their suspension. Accord- 
ingly, any contract entered into by the Commonwealth for the construc- 
tion of public works must be in compliance with these sections. 

In my opinion, the Presidential proclamation does not affect or sus- 
pend the applicability of these sections. The Presidential action was 



102 P.D. 12 



taken pursuant to 40 U.S.C. § 276a-5 which expressly provides that in 
the event of a national emergency the President may suspend the provi- 
sions of the Davis-Bacon Act. Under the provisions of the Davis-Bacon 
Act any contract in excess of $2,000 to which the United States is a 
party must contain a schedule of minimum wages as determined by the 
Secretary of Labor. The Davis-Bacon Act provisions have also been in- 
corporated in other acts which provide for federal assistance to the 
states. However, the state statute applies solely to contracts to which 
the Commonwealth is a party and takes no cognizance of federal ad- 
ministrative action. The federal government is not a party to contracts to 
which the state law in question applies although in many instances fed- 
eral assistance is requested by the Commonwealth after it has received 
bids for a particular construction project. Therefore, under §§ 26 and 27 
you are required to include a schedule of wages in a contract for the 
construction of public works, notwithstanding any national executive 
proclamation. 

I wish to call your attention, however, to the intended consequence of 
such action with respect to federally-aided projects. The Bureau of Pub- 
lic Roads of the U. S. Department of Transportation has issued a direc- 
tive that proposals for federal-aid projects on which bids are opened 
after March 5, 1971, must contain no wage determinations made under 
the provisions of state statutes or other wage determination processes. 
In order to be eligible for federal funds, then, the states must comply 
with the Presidential proclamation. 

I see no other way of avoiding the consequence that federal-aid funds 
will be denied the Commonwealth on such state projects unless the Pres- 
ident rescinds or amends his proclamation as it applies to federally-aided 
state projects, or the provisions of G. L. c. 149, §§ 26 and 27 are re- 
pealed or amended to permit compliance with the requirements for fed- 
eral assistance in construction projects. The Commonwealth is free to 
accept or reject federal aid and this is a policy decision which must be 
determined by the Governor and the Legislature. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 39 April 2, 1971 

Honorable Robert Q. Crane 

Treasurer and Receiver General 

State House 

Boston, Massachusetts 02133 

Dear Mr. Crane: 

You have requested my opinion on several questions relating to your 
office as Treasurer and Receiver General of the Commonwealth. Speci- 
fically, you ask whether acceptance of the chairmanship of a state politi- 



P.D. 12 103 



cal committee (see G. L. c. 52, § 1) would in any way cause you to va- 
cate the office of Treasurer and Receiver General to which you have 
been elected. Further, you ask whether any conflict of interest arises 
from the holding of both positions, if you waive compensation or remu- 
neration for the position of chairman. Finally, you ask if there are any 
statutes which would prohibit you from accepting the position of chair- 
man while serving as Treasurer and Receiver General. For the reasons 
hereinafter stated. 1 answer all three questions in the negative. 

Your first question is answered by reference to the provision in the 
Constitution of the Commonwealth concerning plurality and incompati- 
bility of offices, Pt. 2, c. 6, Art. 11. That provision provides, in part, as 
follows: 

"No person holding the office of . . . treasurer or 
receiver-general . . . shall at the same time have a seat in the 
senate or house of representatives; but [his] being chosen or 
appointed to, and accepting the same, shall operate as a res- 
ignation of [his] seat in the senate or house of representatives; 
and the place so vacated shall be filled up."" 
It is clear that the above-quoted provision is not applicable in your case. 
Accordingly, it is my opinion that your acceptance of the position of 
chairman of a state political committee would not cause you to vacate 
the office of Treasurer and Receiver General. 

Your second question asks whether any conflict of interest results 
from the holding of the offices of Treasurer and Receiver General and 
chairman of a state political committee if you waive compensation or 
remuneration for the latter. The provisions of the conflict of interest 
law. General Laws, chapter 268A, prohibit the receipt of or request for 
compensation "from anyone other than the commonwealth or a state 
agency, in relation to any particular matter in which the commonwealth 
or a state agency is a party or has a direct and substantial interest." G. 
L. c. 268A, § 4(a). The statute also prohibits a state employee from act- 
ing "as agent or attorney for anyone other than the commonwealth or a 
state agency for prosecuting any claim against the commonwealth or a 
state agency, or as agent or attorney for anyone in connection with any 
particular matter in which the commonwealth or a state agency is a party 
or has a direct and substantial interest." G. L. c. 268A, § 4(c). 

Since you have advised me that you intend to waive compensation if 
you accept the chairmanship of a state political committee, it is clear 
that no violation of G. L. c. 268A, § 4(a) will occur. With respect to the 
provisions of G. L. c. 268A, § 4(c), it is my further opinion that the hold- 
ing of the office of chairman of a state political committee would not, per 
se, constitute a violation of the section, and 1 can perceive no set of 
facts where the prohibitions of the section would come into play. 

With respect to your final question, I am unable to find any statute or 
constitutional provision which would prohibit you from accepting the 



,04 P.D. 12 



chairmanship of a state political committee while serving as Treasurer 
and Receiver General. 



Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 40 April 7, 1971 

Honorable John J. Fitzpatrick 

Commissioner of Correction 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Fitzpatrick: 

You have requested an opinion whether females awaiting trial may be 
placed in the Massachusetts Correctional Institution, Framingham, if 
they are kept separate and apart from other convicted and sentenced 
females. 

The "Massachusetts Correctional Institution, Framingham" is the re- 
formatory for women and is one of the correctional institutions of the 
Commonwealth. General Laws, Chapter 125, § 1. Chapter 125, § 16 
provides that this institution shall be the institution of the Common- 
wealth where all females who have been convicted and sentenced or re- 
moved thereto shall be imprisoned and detained. 

A prisoner awaiting trial must be committed to jail. The relevant sta- 
tutes are G. L. c. 276, § 42, which provides for admission of a prisoner 
to bail or, if not bailed, for commitment to "jail for trial," and c. 126, § 4 
which provides that "[jjails shall be used for the detention of persons 
charged with crime and committed for trial ..." 

There are statues which permit transfers and removals of prisoners, 
but they do not permit an unsentenced prisoner to be transferred from a 
jail to a correctional institution. Thus, c. 276, § 52 permits persons held 
in "jail" to be removed to a "jail" in another county and c. 126, § 5 
permits the sheriff to cause a prisoner to be confined in any "jail" in a 
county if there is more than one "jail." Chapter 127, § 97 permits trans- 
fer of prisoners from any jail to any correctional institution but only if 
they have been sentenced. 

Accordingly, it is my opinion that in no event can a female awaiting 
trial be placed in the Massachusetts Correctional Institution, Framing- 
ham. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



P.D. 12 105 



Number 41 April 30, 1971 

Honorable Neil V. Sullivan 
Cointuissioner of Education 
182 Tremont Street 
Boston, Massachusetts 021 1 1 

Dear Commissioner Sullivan: 

You have requested an opinion whether the provisions of General 
Laws, Chapter 70 are in conflict with the requirements of section 5 of 
Title III, section 305, subsections (a) and (b) of Public Law 90-576, 
which is codified as 20 U.S.C. § 240, and, if there is a conflict, whether 
you may by regulation obviate that conflict under your power to adopt 
regulations which is found in G. L. c. 70, § 2(c). It is my opinion that 
there is no conflict between the State and Federal statutes, and thus it is 
unnecessary to answer your second question. 

Briefly, G. L. c. 70, § 2(c) provides a definition for "reimbursable ex- 
penditures'' which are to be computed for purposes of state educational 
aid to cities and towns. That section provides, in essence, that monies 
expended from local tax revenues are to be reimbursed, subject, of 
course, to the limitations and percentages found in various other sec- 
tions of Chapter 70. In arriving at the computation of "reimbursable ex- 
penditures", all "receipts from the federal government" are deleted or 
deducted. 

Clearly, there is no conflict with 20 U.S.C. § 240. That section only 
provides that a State may not take "into consideration" any payments 
under the Federal Act in computing State aid to cities and towns within 
that State. Massachusetts does not take such payments into considera- 
tion; in fact, they are expressly excluded from consideration. Taking 
two hypothetical cities, one receiving Federal funds under Title 20 and 
one not receiving such funds, and both having identical "reimbursable 
expenditures", the aid which Massachusetts grants under Chapter 70 
would, in both instances, be the same. As 1 understand the City of 
Chicopee's position, it is that the state must give, as aid, funds to match 
the Federal payments. In my view, that is not the intent of the Federal 
Act. 

In summary, I find no conflict between the Federal and State acts re- 
ferred to. Your second question does not, therefore, require an answer. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 42 May 7, 1971 

John J. Quigley, Conunandant 

Soldiers' Home 

Chelsea, Massachusetts 02150 

Dear Sir: 

You have requested my opinion whether a male registered nurse — 
formerly a full-time employee of the Chelsea Soldiers' Home but now 



106 P.D. 12 

employed full-time by the Walter E. Fernald State School — may be 
hired by the Chelsea Soldiers' Home for part-time evening and week- 
end work while he maintains his position with the Fernald School. For 
reasons set forth below, my answer is in the affirmative. 

The only statute restricting dual employment of an individual by the 
Commonwealth is G. L. c. 30, § 21, which provides that: "A person 
shall not at the same time receive more than one salary from the trea- 
sury of the commonwealth." Thus, assuming that the individual in ques- 
tion is presently receiving a "salary" for his employment at the Fernald 
School, what must be determined is whether he would, under your 
proposal, be also receiving a "salary" for his work at the Soldiers' 
Home. 

The Supreme Judicial Court, in another context, has pointed out that 
the word "salary" is "more frequently applied to annual employment 
than to any other, and its use may import a factor of permanency." 
Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 4. And, in con- 
struing G. L. c. 30, § 21, opinions by prior Attorneys General have 
given that term the same meaning: 

"[Salary] is limited to compensation established on an an- 
nual or periodical basis and paid usually in installments, at 
stated intervals, upon the stipulated per annum compensa- 
tion. It differs from the payment of a wage in that in the usual 
case wages are established upon the basis of employment for 
a shorter term, usually by the day or week, or on the so- 
called 'piece work' basis, and are more frequently subject to 
deductions for loss of time." 5 Op. Atty. Gen. 699, 700 
(1920). 

See, also. Op. Atty. Gen., Sept. 21, 1955, p. 42. Op. Atty. Gen., July 
6, 1967, pp. 33, 34. 

The purpose of the statute is to prevent a person from being employed 
in two positions at the same time, receiving salary from each. But it 
does not prevent payment of compensation for additional services not 
rendered during the usual hours of employment of the position for which 
the person is primarily employed. 2 Op. Atty. Gen. 309, 309-310. 

There is nothing in your request which indicates that your proposal to 
utilize the person in question on a part-time basis during evenings and 
week ends would in any way conflict with his usual hours of duty at the 
Fernald School. I am informed, also, that he will be compensated only 
for services actually performed at the Soldiers' Home or for actual time 
in attendance there: in other words, that his compensation will not be in 
the nature of a "salary" as defined above. 

Therefore, I am of the opinion that there is no bar to his employment 
under G.L. c. 30, § 21. 

A further question has arisen as to whether hours of employment of 
the person in question at the Fernald School must be combined with his 
hours at the Soldiers' Home so as to require, at times, overtime com- 
pensation under G. L. c. 149, § 30B. My answer is in the negative. That 



P.D. 12 107 



statute speaks in terms of "service in excess of eight hours in any one 
tour of duty or forty hours in any one work week rendered by an em- 
ployee of the commonwealth at the request of an officer of the com- 
monwealth or other person whose duty it is to employ, direct or control 
such employee ..." The intent of this provision is to provide overtime 
compensation for an employee who has performed, at the request of his 
superior, service in excess of those regular hours of duty which he is or 
may be required in his position to perform under G. L. c. 149. § 30A. 
We are here dealing with two separate and unrelated employments, 
under the independent direction and control of two separate agencies of 
the Commonwealth. In my opinion, they must be dealt with separately 
in applying the provisions of c. 149, § 30B. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 43 May 26, 1971 

Mr. Henry H. Shultz 

Executive Secretary 

Council Chamber 

State House 

Boston, Massachusetts 02133 

Dear Mr. Shultz: 

By vote taken on May 12, 1971, the Executive Council requested my 
opinion on a question arising from the following circumstances; On 
April 29, 1971, Justice John V. Spalding of the Supreme Judicial Court 
submitted his resignation as an Associate Justice of that Court to the 
Governor, which resignation was to become effective on July 1, 1971. 
The Justice's resignation was accepted by the Governor and Council on 
April 30, 1971 and May 5, 1971, respectively. On May 12, 1971, the 
Governor submitted the nomination of Justice Edward F. Hennessey of 
the Superior Court to fill the vacancy which will be created by Justice 
Spalding's retirement on July 1, 1971. 

The question for resolution, then, is whether the Governor can now 
nominate, and the Council can now confirm. Justice Hennessey as an 
Associate Justice of the Supreme Judicial Court, in view of the fact that 
Justice Spalding is currently sitting on the Supreme Judicial Court and 
will not retire until July 1, 1971. For the reasons hereinafter stated, I 
answer the question in the affirmative. 

It is clear that Justice Spalding's resignation has been accepted by the 
appointing authority, i.e., the Governor and Council. It is well settled 
that upon the valid acceptance of a resignation, the rights of the parties 
are fixed, although the date when the resignation is to become effective 
is a later date. Warner v. Selectmen of Amherst, 326 Mass. 435, 438; 
1969 Op. Atty. Gen. 97, at 98. 



108 P.D. 12 

I can find no constitutional or statutory impediment to the nomination 
and confirmation of Justice Hennessey as an Associate Justice of the 
Supreme Judicial Court at this time. In my opinion, the Governor and 
Council must be deemed to possess the power to fill judicial vacancies at 
such time in advance as is necessary to assure an orderly selection pro- 
cedure and efficient administration of the courts. Two of my predeces- 
sors have reached the same conclusion with respect to filling anticipated 
vacancies or making reappointments to public offices. See I960 Op. 
Atty. Gen. 84, 85; V Op. Atty. Gen. (1917) 116. Since I conclude that 
the Governor and Council, as presently constituted, would be empow- 
ered to make and confirm the appointment on July 1, 1971, and since the 
period of time from date of appointment (May 12, 1971) to the date of 
Justice Spalding's retirement (July 1, 1971) is not excessive in terms of 
ensuring an orderly transition, I see no reason why the appointment may 
not be made and confirmed now. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 44 May 28, 1971 

Mr. George A. Luciano 

State Superintendent of Buildings 

State House 

Boston, Massachusetts 02133 

Dear Mr. Luciano: 

You have requested my opinion on several questions arising as a re- 
sult of the construction of the Charles F. Hurley Employment Security 
Building which has been occupied by the Commonwealth's Division of 
Employment Security. Because of conflicting interpretations of the stat- 
utes pertaining to the construction, operation and maintenance of said 
building, you have asked that I clarify the extent of your jurisdiction 
over the building and the type and terms of the lease which you are to 
negotiate with the Director of the Division of Employment Security. 

It will be helpful to first of all review the applicable statutory provi- 
sions. The matter of construction of an employment security building 
came before the Legislature in 1960, and in that year the Legislature 
enacted St. 1960, c. 635, entitled "An Act Establishing The Govern- 
ment Center Commission To Construct A State Office Building And A 
Health, Welfare, And Education Service Center." Section 6 of the Act 
authorized the Government Center Commission to take land, by emi- 
nent domain, for, inter alia, "an employment security building." The 
section also authorized construction of the building and the negotiation 
of a lease "for the use of the employment security building." The rental 
specified was to be 

"at a price in which due consideration is given to the interest 
charges as they would accrue on account of monies borrowed 



P.D. 12 109 



by the commonwealth for use in the construction of such 
building and for the acquisition of property in connection 
therewith and to the repayment of principal amounts of the 
monies so borrowed and to the payment of such other ex- 
penses as may be properly allocable to the cost of construc- 
tion of the building for the use of the division of employment 
security and the acquisition of property in connection there- 
with." St. 1960, c. 635, § 6. 

St. 1962, c. 685 amended St. 1960, c. 635 by inserting therein a new 
section 6. Paragraph 3 of the new section provided in relevant part: 
''The [government center] commission, after consultation 
with the division of employment security, shall cause site and 
building plans and specifications to be prepared for an office 
building for use of the said division. The commission may 
cause to be installed in said building such elevators, moving 
stairways, escalators, plumbing, heating, air conditioning, 
electrical fixtures, partitions, machinery and equipment, after 
consultation with the division of employment security, as in 
their judgment may be required, but shall not be required to 
furnish or install any furniture or furnishings. Before approval 
by the commission of final plans and specifications of said 
building, the commission shall notify in writing the state 
superintendent of buildings and the director of the division of 
employment security of the estimated costs. In determining 
the total estimated costs of construction, the commission 
shall consider the cost of construction of the building and the 
proportion of the cost, allocable to the employment security 
building and the land appurtenant thereto, of (1 ) the site 
thereof, (2) the preliminary costs including surveys and site 
development, (3) the payment to the city of Boston in lieu of 
taxes, (4) landscaping and tunnels, and (5) the finance charges 
including interest and amortization of the cost incident to the 
issuance of the bonds under section seven. After such con- 
sideration and upon approval of final plans and specifications, 
the commission shall enter into contracts for the construction 
of a division of employment security building for the use of 
the division of employment s^ecurity. At least six months 
prior to the estimated date of completion of construction, the 
commission shall notify the director of the division of em- 
ployment security and the state superintendent of buildings of 
the estimated date for the completion of said building. The di- 
rector of the division of employment security is hereby au- 
thorized and directed following such notification to negotiate 
and enter into a lease for the use of said building by the divi- 
sion of employment security with the state superintendent of 
buildings which shall, upon the recommendation of the com- 
mission on administration and finance, be submitted to the 
governor and council for approval. The lease shall be for a 



110 P.D. 12 



term of not more than twenty years and shall provide for a 
square foot rental based upon, but not limited to the factors 
outlined in this paragraph. Said lease shall provide also that 
the division of employment security shall assume full respon- 
sibility for the costs of operation, as well as maintenance and 
repair of said building including land appurtenant thereto dur- 
ing the term of the lease." 
The 1962 Act also amended St. 1960, c. 635 by inserting therein a new 
section 12, which provided, in relevant part: 

"Upon acceptance as completed of any building provided 
for by this act, the commission shall deliver to the state divi- 
sion of building construction all plans, specifications, surveys 
and papers relating to site acquisition, engineering, planning 
and construction of such building and the state superinten- 
dent of buildings shall assume full responsibility for the oper- 
ation and maintenance of the property, subject to appropria- 
tion, except the building provided for in the third paragraph 
of section six." 
Accordingly, you ask (1) whether the care, operation and maintenance 
of the Charles F. Hurley Employment Security Building is vested in 
you, as Superintendent of State Buildings; (2) whether you are au- 
thorized and/or required to enter into a "rental-purchase" type of lease 
with the Director of the Division of Employment Security; and (3) 
whether the rent for the building is to be assessed on a prescribed for- 
mula with the ultimate determination to be made by you. For the 
reasons hereinafter stated, I answer your first and second questions in 
the negative and your third question in the affirmative. 

Your first question depends upon the construction to be accorded the 
statutory language, found in St. 1962, c. 685, § 2 which amended St. 
1960, c. 635, § 6 and which reads "the division of employment security 
shall assume full responsibility for the costs of operation, as well as 
maintenance and repair of said building" and the further language, found 
in St. 1962, c. 685, § 4 which amended St. 1960, c. 635, § 12 and which 
reads "the state superintendent of buildings shall assume full responsi- 
bility for the operation and maintenance of the property, subject to ap- 
propriation, except the building provided for in the third paragraph of 
section six." 

The statutory language either means that the Division of Employment 
Security is responsible only for the costs of operation, maintenance and 
repair, leaving to the Superintendent of Buildings the actual operation, 
maintenance and repair, or it means that the Division is responsible for 
the total operation, costs as well as actual maintenance and repair, leav- 
ing to the Superintendent of Buildings the responsibility for negotiating 
the lease. I have examined the legislative history of St. 1962, c. 685, and 
I am compelled to adopt the latter interpretation. 

It is fundamental that the intention of the Legislature must prevail, 
any rule of construction to the contrary notwithstanding. Board of As- 



P.D. 12 



sessors of Newton v. Pickwick, Ltd., Inc., 351 Mass. 621, 625. With re- 
spect to ambiguous statutes, resort to legislative history is permissible. 
Hood Riihher Co. v. Commissioner of Corporations & Taxation, 268 
Mass. 355, 358. 

The message of His Excellency, the Governor which accompanied 
the 1962 legislation stated: 

"We have been in continuous communication with federal 
representatives and have their assurance that our plans are 
satisfactory to qualify for reimbursement, including a provi- 
sion with an amendment of section 12, requiring the Division 
oj Employment Security, instead of the State Superintendent 
of Buildings, to maintain and operate the building." House 
No. 3832 of 1962, p. 3. (Emphasis supplied.) 
In my opinion, St. 1962, c. 685 created an exception to the general 
responsibility and duty of the State Superintendent of Buildings to care 
for and operate the State House and other public buildings "owned by 
or leased to the Commonwealth for the use of public officers . . ." G. L. 
c. 8, § 9. Any ambiguity in the legislation is resolved by the gubernator- 
ial message which accompanied the 1962 legislation. 

With respect to your second question, the language of St. 1960, c. 635, 
§ 6, prior to the 1962 amendment, which I have set out supra indicates 
that the Legislature intended the lease to be negotiated to be of the 
"rental-purchase" type. It appears that the amendment made in 1962 al- 
tered that intention, and I find no warrant for an interpretation that the 
lease now to be negotiated is to be of the "rental-purchase'' type. 

Your second question is, of course, intimately involved with the third 
question which is whether the rent for the building is to be assessed on a 
prescribed formula, with the ultimate determination to be made by you. 
I answer your question with a qualified "Yes." The 1962 amendment 
enumerates the factors which the Government Center Commission was 
to take into consideration in estimating the costs of construction of the 
building. The 1962 amendment further provided that "[t]he lease shall be 
for a term of not more than twenty years and shall provide for a square 
foot rental based upon, but not limited to the factors outlined in this 
paragraph." (Emphasis supplied.) In my opinion, the Legislature has, to 
a point, prescribed the formula which you are to use in determining the 
rental. However, other factors may be taken into consideration, and 
with respect to those the amount of the rental is of course negotiable. 1 
therefore conclude that you may, as a preliminary matter, utilize the 
prescribed factors in determining the rental to be set, leaving to negotia- 
tion and agreement the use of any other factors which you see fit to use. 
It may be that the actual negotiation of the terms of the lease and the 
amount of the rental may require additional assistance from this De- 
partment. My staff stands ready to assist you on such matters. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



12 P.D. 12 



Number 45 June 2, 1971 

Honorable Freyda P. Koplow 
Commissioner of Banks 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Koplow: 

You have requested my opinion with respect to the accessibility of the 
public to certain stockholder lists and verifying documents which are 
compiled by the Board of Bank Incorporation pursuant to G. L. c. 172, 
§ 10, as amended by St. 1961, c. 493, § 1. The statute provides in rele- 
vant part: 

''When all the capital stock [of a trust company] has been is- 
sued, a list of the stockholders, with the name, residence and 
post office address of each, and the number of shares in each 
class held by each stockholder, shall be filed with the board 
of bank incorporation, which list shall be verified by the clerk 
of the corporation . . ."" 
You have informed me that after the list of stockholders has been 
filed, the clerk of the Board of Bank Incorporation writes to each of the 
individuals whose names appear on the list and requests that they indi- 
vidually verify their ownership of stock in the new trust company. After 
the verification procedure is completed, the individual responses are 
filed with the papers relative to the new trust company. 
With respect to the above procedure, your first inquiry is: 

"Must the stockholder lists submitted under G. L. c. 172, § 
10 be made available for public inspection?'" 
It is my opinion that these lists are "public records" and are available 
for public inspection. 

General Laws, c. 4, § 7(26), as amended by St. 1969, c. 831, § 2, de- 
fines public records in part as "any written or printed book or paper . . . 
of the commonwealth . . . which is the property thereof, and in or on 
which any entry has been made or is required to be made by law, or 
which any officer or emph)yee of the commonwealth . . . has received or 
is required to receive for fding . . ." (Emphasis supplied.) Records fal- 
ling within the above-quoted definition are open to inspection and ex- 
amination. In that respect, G. L. c. 66, § 10 provides, in relevant part: 
"Every person having custody of any public records shall, at 
reasonable times, permit them to be inspected and examined 
by any person, under his supervision, and shall furnish copies 
thereof on payment of a reasonable fee." 
In Op. Atty. Gen., Dec. 31, 1957, p. 41, the then Attorney General 
was of the opinion that applications to the Board of Registration of Pro- 
fessional Engineers and Land Surveyors were public records and open 
for inspection. He stated that: 



P.D. 12 113 



"The information and records which constitute 'pubhc rec- 
ords' and which must be open to public inspection, relate 
only to books or papers or entries which are 'required to be 
made by law," or papers which a public body 'is required to 
receive for filing.' 
Therefore, absent a specific statutory exception, all papers, lists and 
records required to be filed with any officer or employee of the Com- 
monwealth are "public records" and open to public inspection. The 
Supreme Judicial Court of the Commonwealth has so construed G. L. c. 
4. § 7. In Lord v. Ret^'istrar of Motor Vehicles, 347 Mass. 608, the Court 
held that accident reports which were required to be filed with the Reg- 
istrar under G. L. c. 90, § 26 were "public records" and open for in- 
spection. See also, Direct-Mail Serv., Inc. v. Registrar of Motor 
Vehicles, 296 Mass. 353, 355-357. 

Under the provisions of G. L. c. 172, § 10, the list of stockholders is 
clearly "required to be received for filing." Since 1 can find no excep- 
tion in the statutes relating to the Board of Bank Incorporation, and you 
point to none, I conclude that the stockholder lists are "public records" 
and are available for public inspection. 

Your second inquiry concerns the responses received from the indi- 
vidual stockholders in which they verify their ownership of the trust 
company stock. Specifically, your inquiry is: 

"Must the responses of stockholders to the inquiries of the 
Clerk of the Board of Bank Incorporation regarding stock 
ownership be made available for public inspection?" 
It is my opinion that this inquiry must also be answered in the affirma- 
tive. 

The definition of "public records" in G. L. c. 4, § 7(26) includes "any 
official correspondence of any officer or employee of the commonwealth 
. . ." In addition, it includes any papers or books which an officer or 
employee of the Commonwealth "has received . . . for filing." Since 
these responses are the "official correspondence" of the clerk of the 
Board of Bank Incorporation and are received by him for filing with the 
papers relative to the new trust company, they come directly within the 
statutory definition of "public records" and are open for public inspec- 
tion. ,, ^ , 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 46 June 8, 1971 

Honorable Milton Greenblatt, M.D. 
Commissioner of Mental Health 
190 Portland Street 
Boston, Massachusetts 02114 
Dear Commissioner Greenblatt: 

You have requested my opinion on the following two questions relat- 
ing to the commitment and treatment of persons determined to be de- 
pendent upon the use of drugs. 



114 P.D. 12 



''1. May a person committed to the Division of Drug Re- 
habilitation pursuant to Sections 134 and 136 of Chapter 
123 of the General Laws be sent by the Division to 
Bridgewater for treatment. 

"2. May persons be sent to Bridgewater for treatment with- 
out a conviction for any crime, or may this be done only 
pursuant to Section 135 of Chapter 889 which requires 
conviction and further order of the court." 

For the reasons hereinafter stated, it is my opinion that persons com- 
mitted to the Division of Drug Rehabilitation pursuant to G. L. c. 123, § 
134 or 136 may not be sent to Bridgewater for treatment and that a per- 
son who has not been convicted of any crime may not be sent to 
Bridgewater for treatment. It is my further opinion that a person may be 
committed pursuant to G. L. c. 123, § 135 to Bridgewater for treatment 
after July 1, 1971, but that until that date treatment at Bridgewater may 
only be afforded persons who have been committed to another penal in- 
stitution. 

Prior to explaining my answers to your questions, a review of the 
statutory scheme for commitment and treatment of drug dependent per- 
sons is in order. St. 1969, c. 889 established a "comprehensive drug re- 
habilitation program" within the Commonwealth for the treatment of 
drug dependent persons. General Laws, c. 123, § 125 (inserted by St. 
1969, c. 889, § 1) defines "drug dependent person" as "a person who is 
unable to function effectively and whose inability to do so causes or re- 
sults from the use of a dependency related drug." By virtue of the provi- 
sions of G. L. c. 123, § 134 (also inserted by St. 1969, c. 889, § 1), per- 
sons charged with drug offenses who are found to be drug dependent 
persons "who would benefit by treatment" may request commitment to 
the Division of Drug Rehabilitation in the Department of Mental 
Health. The section provides for a stay of criminal proceedings during 
the period of a request for an examination is under consideration and for 
such additional period, if the request is granted, required for the exami- 
nation and report of the psychiatrist or physician. After the report is 
submitted, the section provides: 

"If the defendant is also charged with a violation of any 
law other than a drug offense, the stay of the criminal pro- 
ceedings shall be vacated upon the report of the psychiatrist 
or physician, the report shall be considered upon disposition 
of the charge in accordance with sections one hundred and 
thirty-five and one hundred and thirty-six, and the remaining 
provisions of this section shall not apply. 

"If the defendant is not also charged with a violation of any 
law other than a drug offense, and if the psychiatrist or physi- 
cian reports that the defendant is a drug dependent person 
who is a drug addict who would benefit by treatment or a 
drug dependent person who is not a drug addict but who 
would benefit by treatment, the court shall inform the defen- 



P.D. 12 115 



dant that he may request commitment to the division, and ad- 
vise him of the consequences of the commitment and that if 
he is so committed the criminal proceedings will be stayed for 
the term of such commitment. 

"If the defendant requests commitment and if the court de- 
termines that he is a drug dependent person who is a drug ad- 
dict who would benefit by treatment, the court may stay the 
criminal proceeding and commit him to the division as an in- 
patient. An order committing a person who is determined to 
be drug dependent person who is a drug addict under this sec- 
tion shall specify the period of commitment, which shall not 
exceed two years. 

"If the defendant requests commitment and if the court de- 
termines that he is a drug dependent person who is not a drug 
addict but who would benefit by treatment, the court may 
stay the criminal proceeding and commit him to the division 
as an outpatient; provided, however, that the commitment 
may be as an inpatient if the court determines that the defen- 
dant is a proper subject for an inpatient program. An order 
committing a person who is determined to be a drug depen- 
dent person who is not a drug addict under this section shall 
specify the period of commitment, which shall not exceed one 
year." 
After detailing the factors to be considered by the Court "[i]n deter- 
mining whether or not to grant a request for commitment," the section 
further provides: 

"In the event that the defendant requests commitment, and 
if the court determines that the defendant is a drug dependent 
person who is a drug addict who would benefit by treatment 
or a drug dependent person who is not a drug addict but who 
would benefit by treatment, and the defendant is charged with 
a first drug offense not involving the sale or manufacture of 
narcotic or harmful drugs, and there are no continuances out- 
standing with respect to the defendant pursuant to this sec- 
tion, the court shall order that the defendant be committed to 
the division without consideration of any other factors. 

"If the defendant requests commitment, and if the court 
determines that the defendant is a drug dependent person 
who is a drug addict who would benefit by treatment, or a 
drug dependent person who is not a drug addict but who 
would benefit by treatment, and the defendant is charged with 
a first drug offense not involving the sale or manufacture of 
narcotic or harmful drugs, and there are no continuances out- 
standing with respect to the defendant pursuant to this sec- 
tion, and adequate and appropriate treatment at a facility is 
not available, the stay of criminal proceedings shall remain in 
effect until such time as adequate and appropriate treatment 
at a facilitv is available. 



116 P.D. 12 



"In all other cases, a commitment order shall not be made 
unless adequate and appropriate treatment is available at a 
facility: provided, however, that the court may in its discre- 
tion order that the stay of criminal proceedings remain out- 
standing until such time as adequate and appropriate treat- 
ment is available. 

"In the event that the stay of the criminal proceedings re- 
mains in effect for the reason that adequate and appropriate 
treatment at a facility is not available, the issue of the avail- 
ability of adequate and appropriate treatment at a facility may 
be reopened at any time by way of motion by the court, the 
prosecutor, or the attorney for the defendant." (Emphasis 
supplied.) 
If after trial, a court determines that a person who is convicted of an 
offense other than a drug offense should be imprisoned, G. L. c. 123, § 
135 applies in certain situations. That section provides, in pertinent part: 

"Any person found guilty of a violation of any law other 
than a drug offense, who, prior to disposition of the charge, 
states that he is a drug dependent person, and requests an ex- 
amination shall be examined by a psychiatrist or, if, in the 
discretion of the court, it is impracticable to do so, by a 
physician, to determine whether or not he is a drug dependent 
person who is a drug addict but who would benefit by treat- 
ment or a drug dependent person who is not a drug addict but 
who would benefit by treatment. 

•k -k "k "k "k 

"If the report states that the defendant is a drug dependent 
person who is a drug addict who would benefit by treatment 
or a drug dependent person who is not a drug addict but who 
would benefit by treatment, and if the court orders that the 
defendant he confined to a jail, house of correction, prison, 
or other correctional institution, the court may further order 
that the defendant be afforded treatment at a penal facility for 
the whole or any part of the term of imprisonment: provided, 
however, that the court shall determine the term of treatment 
to be afforded with the advice of the administrator of the 
penal facility; and provided, further, that the court shall not 
order that the defendant be afforded treatment at a penal 
facility unless the defendant consents to the order in writing. 
The administrator may terminate treatment of the defendant 
at such time as he determines the defendant will no longer 
benefit by treatment . . ." (Emphasis supplied.) 
General Laws, c. 123, § 136 applies in situations where the court im- 
poses probation rather than imprisonment. Section 136 provides: 

"Any court may, in placing on probation a defendant who 
is a drug dependent person who is a drug addict who would 
benefit by treatment or a drug dependent person who is not a 



P.D. 12 117 

drug addict but who would benefit by treatment, impose as a 
condition of probation that the defendant receive treatment in 
a facility (is an inpatient or outpatient; provided, however, 
that the court shall not impose such a condition of probation 
unless, after consulting with the division, it determines that 
adequate treatment at an appropriate facility is available. The 
defendant shall receive treatment at the facility for so long as 
the administrator of the facility deems that the defendant will 
benefit by treatment, but in no event shall he receive treat- 
ment at the facility for a period longer than the period of pro- 
bation ordered by the court. If at any time during the period 
of treatment the defendant does not cooperate with the ad- 
ministrator or the probation officer, or does not conduct him- 
self in accordance with the order or conditions of his proba- 
tion; the administrator or the probation officer may make a 
report thereon to the court which placed him on probation, 
which may consider such conduct as a breach of probation." 
(Emphasis supplied.) 

General Laws, c. 123, § 125, the ''definitions" section of the Act, de- 
fines "facility" (the term used in both sections 134 and 136) as "any 
public or private place, or portion thereof, which is not part of or located 
at a penal institution and which is not operated by the federal govern- 
ment, providing services especially designed for the treatment of drug 
dependent persons or persons in need of immediate assistance due to the 
use of a dependency related drug." The same section defines "penal 
facility" (the term used in section 135) as "an institution, or any part 
thereof, other than an institution, or any part thereof, operated by the 
federal government, for the detention and confinement of persons ac- 
cused or convicted of crime, including, but not limited to, jails, prisons, 
houses of correction and correctional institutions, providing services 
especially designed for the treatment of drug dependent persons." 

Since your questions relate to "Bridgewater" (by which, I assume 
you refer to the Massachusetts Correctional Institution, Bridgewater), a 
brief review of several statutory provisions relating to that institution is 
necessary. General Laws, c. 125, § 1 provides that the "Massachusetts 
Correctional Institution, Bridgewater" shall mean "the state farm." The 
section further provides that the state farm and the other institutions 
enumerated in the section "shall constitute the correctional institutions 
of the commonwealth." 

General Laws, c. 125, § 19 provides, in pertinent part: 

"The Massachusetts Correctional Institution, Bridgewater, 
shall be the institution of the commonwealth where all males 
convicted of drunkenness shall be committed and detained. 

The section further provides, until July 1, 1971, that "[ejxcept for al- 
coholics committed . . . defective delinquents committed ... or insane 
persons committed ... or mentally ill persons committed ... no person 



118 P.D. 12 



shall be committed to the Massachusetts Correctional Institution, 
Bridgewater, except for the crime of drunkenness." After July 1, 1971, 
the statutory language will provide (by virtue of an amendment made by 
St. 1970, c. 888, § 6) that "[n]o other person [referring to "males con- 
victed of drunkenness"] shall be committed thereto except those com- 
mitted pursuant to the provisions of chapter one hundred and twenty- 
three." 

The statutory provisions referred to supra are clear and unambiguous 
and provide the answers to your questions. General Laws, c. 123, §§ 134 
and 136 refer to commitment and treatment "at a facility." Since 
Bridgewater is a correctional institution of the Commonwealth and thus 
"a penal institution," it is not a "facility" within the meaning of G. L. 
c. 123, § 125. It is my opinion, therefore, that a person committed to the 
Division of Drug Rehabilitation pursuant to G. L. c. 123, §§ 134 or 136 
may not be sent by the Division to Bridgewater for treatment. It fol- 
lows, of course, that if the Division has sent persons to Bridgewater 
who were committed to the Division under either section 134 or section 
136, such persons may not continue to be detained there. 

In answer to your second question, it is clear that a person who has 
not been convicted of a crime may not be sent to or treated at Bridge- 
water. In such instances, treatment is governed by section 134, and that 
section requires treatment "at a facility." As I have noted, Bridgewater 
does not qualify as "a facility" within the meaning of the statute. 

The only remaining inquiry is whether persons may be "sent to 
Bridgewater for treatment" under the provisions of G. L. c. 123, § 135. 
Bridgewater qualifies as a "penal facility" as that term is defined in G. 
L. c. 123, § 125. Clearly, it is "an institution ... for the detention and 
confinement of persons . . . convicted of crime, ..." I am reliably in- 
formed that it provides "services especially designed for the treatment 
of drug dependent persons," so that it qualifies under the latter part of 
the statutory definition. Thus, persons may be sent to and treated at 
Bridgewater, unless the provisions of G. L. c. 125, § 19 require other- 
wise. The amendment to section 19 made by St. 1970, c. 888, § 6 will 
remove any impediment to such commitment and treatment as of July 1, 
197i. Prior to July 1, 1971, however, it is my opinion that persons may 
not be committed to Bridgewater under the provisions of G. L. c. 123, § 
135. However, the language of section 135 would permit commitment to 
an institution other than Bridgewater with treatment occurring at 
Bridgewater: 

"[A]nd if the court orders that the defendant be confined to 
a jail, house of correction, prison, or other correctional in- 
stitution, the court may further order that the defendant be 
afforded treatment at a penal facility for the whole or any part 
of the term of imprisonment. ..." 
Since Bridgewater qualifies as a "penal facility" within the meaning of 
the statute, treatment may take place there so long as the commitment is 
to another institution. The prohibition of G. L. c. 125, § 19 (applicable 



P.D. 12 119 



only to July L 1971) acts only to bar ''commitments" to Bridgewater 
and not treatment at that institution. 



Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 47 June 17, 1971 

Dr. Edward C. Moore, Chancellor 

Board of Higher Education 

182 Tremont Street 

Boston, Massachusetts 021 1 1 

Honorable Charles E. Shepard 

Commissioner of Administration 

State House 

Boston, Massachusetts 02133 

Gentlemen: 

You have requested my opinion as to proper interpretation of G. L. c. 
41, § 108L, inserted by St. 1970, c. 835, entitled "An Act Establishing A 
Career Incentive Pay Program For Regular Full-Time Police Officers 
And Providing For Partial Reimbursements By The Commonwealth For 
Certain Cities and Towns." 

The program established by section 108L is one providing "base sal- 
ary increases to regular full-time members of the various city and town 
police departments, the division of state police in the department of pub- 
lic safety, the capitol police and the metropolitan district commission 
police, as a reward for furthering their education in the field of police 
work." The salary increases are determined by a system whereby an of- 
ficer fulfilling various educational requirements is awarded a specified 
number of points, and, as certain point levels are reached, he is given 
percentage increases in his salary in accordance with a statutory 
schedule. The eligibility of municipal police officers to participate in the 
program is contingent upon acceptance of the statute by the 
municipalities in which they are respectively employed. Any municipal- 
ity which does so is reimbursed by the Commonwealth for one half the 
cost of the salary increases granted pursuant to section 108L. The Board 
of Higher Education is given the responsibility of receiving information 
as to points earned by members of the participating police forces, of de- 
termining their eligibility and the amount of any salary increases to 
which the statute entitles them, of certifying the amounts of the Com- 
monwealth reimbursements to be made to the participating 
municipalities, and of certifying the amounts of the salary increases pay- 
able to police officers in the three state agencies named in the statute. 

Specifically, you have asked the following questions: 

"1. Does the term 'education in the field of police work,' as 
used in G. L. c. 41, § 108L, include — 



120 P.D. 12 

(a) Only those courses of study which have a direct and 
immediate relation to police work and which are de- 
signed to educate an officer occupationally rather 
than generally — such as police science, law and law 
enforcement, and criminal justice? 

(b) Courses of study in sociology, psychology, English, 
mathematics, chemistry and other subjects commonly 
offered in liberal arts institutions? 

(c) Courses of study in business administration? 
"2. Does G. L. c. 41, § 108L allow points for — 

(a) Courses taken or degrees earned by a regular full-time 
member of any of the police forces enumerated 
therein before becoming such a member and before 
the effective date of St. 1970. c. 835? 

(b) Courses taken or degrees earned by a regular full- 
time member of any such police force after becoming 
such a member but before the effective date of St. 
1970, c. 835? 

(c) Courses taken or degrees earned by a regular full-time 
member of any such police force before becoming 
such a member but after the effective date of St. 
1970, c. 835? 

(d) Courses taken or degrees earned by a regular full- 
time member of the police department of a municipal- 
ity which accepts § 108L after becoming such a 
member and after the effective date of St. 1970, c. 
835, but before the effective date of such acceptance 
by the municipality? 

"3. In the case of an officer in the Division of State Police, 
the Capitol Police or the Metropolitan District Commis- 
sion Police as to whom a salary increase has been cer- 
tified by the Board of Higher Education pursuant to G. 
L. c. 41, § 108L, is such an increase payable to him — 

(a) Before the effective date of an appropriation made for 
the purpose of, and sufficient to cover, the cost of 
such increase? 

(b) Before the action by the Joint Committee on Ways 
and Means in accordance with St. 1970, c. 480, § 6, 
or corresponding provisions of subsequent appropria- 
tion acts? 

"4. In the case of an officer in the Division of State Police, 
the Capitol Police or the Metropolitan District Commis- 
sion Police to whom a salary increase is payable in ac- 
cordance with your answer to Question 3, is such in- 
crease payable only prospectively or is it payable retroac- 
tively, and, if payable retroactively, is it so payable — 



P.D. 12 121 



(a) To the date on which he was certified as entitled 
thereto by the Board of Higher Education? 

(b) To the date on which he earned the points necessary 
to entitle himself to such increase? 

(c) To such date, if any, as may be specified by the Joint 
Committee on Ways and Means in accordance with 
St. 1970, c. 480, § 6, or corresponding provisions of 
subsequent appropriation acts? 

(d) To some other date and, if so. what? 

"5. If an officer receives a salary increase pursuant to G. L. 
c. 41, § 108L, is the amount of such increase treated as a 
part of his salary for purposes of determining the amounts 
of the following — 

(a) The amount of his pension upon retirement? 

(b) The amount of group insurance coverage to which he 
is entitled? 

(c) The rate of his ove'time pay? 

(d) In the case of an officer subject to St. 1969, c. 547, § 
2A. the amount of any cost-of-living salary increase 
payable to him thereunder? 

"6. If your answer to parts (a), (b) and (c) of Question 5 or 
any such part, is affirmative, and a municipality incurs 
costs by reason thereof, do the reimbursements payable 
by the Commonwealth to the municipality under G. L. c. 
41, § 108L include one half of any or all of the costs so 
incurred?" 

Question One 
Your first question is a broad, general one. Subject to the following 
observations, I conclude that the question should either be treated on an 
ad hoc basis for each case which arises or through the promulgation of 
general rules and guidelines by the Board of Higher Education. With this 
in mind, it is my opinion that the General Court intended some flexibil- 
ity in determining what constitutes "education in the field of police 
work." In this regard, I note that the Advisory Committee on Police 
Education of the Board of Higher Education takes the position that 
higher education per se is of primary importance in improving law en- 
forcement and that specific courses or programs are of secondary impor- 
tance. And, while the Advisory Committee and the Board have de- 
veloped law enforcement and criminal justice programs, the programs 
have included general education courses such as English, Psychology, 
Sociology, Mathematics, Science, Government and other courses. I am 
also advised that the Committee has endorsed education in the social 
sciences, business administration and public administration as being of 
value to law enforcement. 

1 am of the opinion that the Committee's position is well taken, and I 
would not restrict the phrase "education in the field of police work" 



122 P.D. 12 



solely to degree programs in criminal justice and law enforcement. Sub- 
ject of course, to a detailed examination of each case and/or the prom- 
ulgation of the general guidelines to which I have referred, I answer 
your first question by saying, first, that the term "education in the field 
of police work'" cannot be limited solely to courses in police science, 
law and law enforcement and criminal justice. It is my further opinion 
that courses of study in sociology, psychology, English, mathematics, 
chemistry, other liberal arts subjects, and business administration con- 
tribute to the improvement of police efforts and the effectiveness of 
police departments and thus cannot be said as a matter of law in constru- 
ing Chapter 835 to be outside the field of police works. 

Question Two 

For the reasons stated hereinafter, I answer all parts of question two 
in the affirmative. Any other result would pose severe administrative 
problems and create gross inequities depending upon individual situa- 
tions. It is clear that the purpose of the statute is to upgrade police 
forces and personnel. Under the terms of the statute, education is en- 
visioned as a primary means of such upgrading, and I can perceive no 
reason why the chronology under which courses were undertaken 
should be a critical and deciding factor regarding eligibility. 

While I am cognizant of the general principle that legislation has no 
retroactive effect unless required by the terms of the statute (see, e.g., 
Martin L. Hall Co. v. Commonwealth, 215 Mass. 326 and Wynn v. 
Board of Assessors of Boston, 281 Mass. 245), I cannot at the same time 
attribute to the General Court an intent to discriminate among members 
of police forces on the basis of when the educational credits were 
earned. Because of the substantial equal protection problems which 
would be raised by negative answers to the question, I am of the opinion 
that the statute must be construed as allowing points for courses taken 
(which are approved in the manner discussed in answer to your first 
question) or degrees earned by a regular, full-time member of any of the 
police forces enumerated in the statute in all of the instances referred to 
in your second question. 

Question Three 
It is my opinion that the answer to both parts of this question must be 
"No." 

As to Part (a), this result would appear to be dictated by G. L. c. 29, 
§§ 26 and 27, and by G. L. c. 30, § 46(9). General Laws, c. 29, § 26 
provides: 

"Expenses of offices and departments for compensation of 
officers, members and employees and for other purposes shall 
not exceed the appropriations made therefor by the general 
court or the allotments made therefor by the governor. No 
obligation incurred by any officer or servant of the common- 
wealth for any purpose in excess of the appropriation or al- 
lotment for such purpose for the office, department or institu- 
tion which he represents, shall impose any liability upon the 
commonwealth." 



I 



P.D. 12 123 



General Laws, c. 29, § 27 further provides, in relevant part: 

"Notwithstanding any provision of general law, no de- 
partment, office, commission and institution shall incur an 
expense, [or] increase a salary . . . unless an appropriation by 
the general court and an allotment by the governor, sufficient 
to cover the expense thereof, shall have been made . . /' 
According to G. L. c. 30. § 46(9): 

"No increase in salary shall be effective for any position 
before the effective date of the appropriation act which in- 
cludes an appropriation made for the purpose of, and suffi- 
cient to cover, the cost of such increase." 
The meaning of G. L. c. 29, §§ 26 and 27, has been dealt with by a 
series of interpretations of prior Attorneys General and the Justices of 
the Supreme Judicial Court. The opinions were as follows: 

(1 ) In 1937, the then Attorney General ruled that under G. L. c. 29, §§ 
26 and 27, the Trustees of the State Library and the Governor and 
Council could not exercise their power (pursuant to G. L. c. 6, § 35) to 
grant a salary increase to the State Librarian until an appropriation suffi- 
cient for the purpose had been made. Op. Attv. Gen., Dec. 7, 1937, p. 
17. 

(2) In 1947, the then Attorney General ruled that a salary increase 
voted to the Commissioner of Probation by the Board of Probation and 
approved by the Governor and Council (pursuant to G. L. c. 276, § 98) 
could not be paid to him before a sufficient appropriation had been made 
— apparently because of G. L. c. 29, §§ 26 and 27. Op. Attv. Gen., 
Dec. 29, 1947, p. 42. 

(3) In 1948, the Justices of the Supreme Judicial Court rendered an 
advisory opinion to the House of Representatives to the effect that a bill 
pending before that body which would give state employees a 20% sal- 
ary increase without providing sufficient funds to pay for it would not be 
unconstitutional. Opinion of the Justices, 323 Mass. 764. 

(4) In 1959, the then Attorney General, relying on the 1948 Opinion of 
the Justices, ruled that salary increases in excess of appropriations 
which had been voted by the Senate Committee on Rules to certain Se- 
nate employees (pursuant to G. L. c. 3, §§ 12 and 13) could be im- 
mediately paid, that G. L. c. 29, §§ 26 and 27 did not prevent a state 
officer from exercising his statutory authority to increase a salary, and 
that the 1937 opinion (and, it would seem, the 1947 opinion) were wrong. 
Op. Atty. Gen., Nov. 25, 1959, p. 63. 

I believe that the last-mentioned opinion, though perhaps correct in its 
conclusion, was incorrect in its reasoning. The Opinion of the Justices 
relied upon had nothing to do with the meaning of G. L. c. 29, §§ 26 and 
27, but was directed at the constitutionality of a bill (1948 House Doc. 
No. 1881) which would have expressly overridden the restrictions of G. 
L. c. 29 by a special act. Except where those restrictions are thus vi- 
tiated by special legislation, the prior interpretations of their meaning in 



24 P.D. 12 



the context of administratively-granted salary increases remain, in my 
opinion, completely valid. It may be, however, that G. L. c. 29, §§ 26 
and 27 are inapplicable to employees of the Legislative Branch — in 
which case the 1959 opinion reached the right result, but for the wrong 
reason. 

The 1948 Opinion of the Justices does not, in any event, have any 
bearing on G. L. c. 41, § 108L. That opinion dealt with a special act in 
express derogation of G. L. c. 29; section 108L is a part of the General 
Laws (and, hence, subject to the "notwithstanding'' clause in G. L. c. 
29, § 27), and contains no provision which is even inconsistent with G. 
L. c. 29. Besides, the facts of the Opinion differ significantly from the 
subject matter of the 1959 Attorney General's opinion, in that its appli- 
cation is confined to members of the Executive Branch. Moreover, G. 
L. c. 30, § 46(9), which, as noted in the 1959 opinion, is inapplicable to 
legislative employees, does apply to members of the Detective Branch 
of the State Police, the Capitol Police and the Metropolitan District 
Commission Police, and therefore appears to prohibit their receiving a 
salary increase under § 108L "before the effective date of the appropria- 
tion which includes an appropriation made for the purpose of, and suffi- 
cient to cover, the cost of such increase." While members of the Un- 
iformed Branch of the State Police are not subject to G. L. c. 30, § 49(9) 
(being exempted therefrom by G. L. c. 22, § 9A), it would seem appro- 
priate that they be accorded the same treatment under § I08L — since § 
108L is completely silent on when the increases are to be paid. 

Turning to Part (b) of Question 3, it is my opinion that the increases 
awarded under § 108L fall squarely within the terms of St. 1970. c. 480, 
§ 6. and hence that, so long as such terms or corresponding provisions of 
subsequent appropriations acts remain in effect, the payment of any 
such increases before Ways and Means Committee action thereunder 
would be in plain violation thereof. St. 1970, c. 480, § 6 provides in re- 
levant part: 

"Amounts included for permanent positions in sums ap- 
propriated in section two for personal services are based 
upon schedules of permanent positions and salary rates as 
approved by the joint committee on ways and means, and, 
except as otherwise shown hy the files of said committee, a 
copy of which shall be deposited with the bureau of person- 
nel, no part of sums so appropriated in section two shall be 
available ... for payments on account of any change of sal- 
ary range or compensation of any permanent position, 
notwithstanding any special or general act to the contrary 
. . ." (Emphasis supplied.) 

Question Four 

It is my opinion that the extent, if any, to which any pay increase 

under G. L. c. 41, § 108L is retroactive is entirely dependent upon the 

terms of the appropriation covering the amount of the increase. No such 

appropriation has as yet been made. If, as you presume in your letter. 



P.D. 12 125 



St. 1970, c. 480, § 6 will continue to be included in all future appropria- 
tion acts, as has been the case for many years, it is my opinion that al- 
ternative (c) would be the appropriate response to this question. In such 
case, the salary increase would be payable from the date, if any, 
specified by the Joint Committee on Ways and Means unless the Gen- 
eral Court provides otherwise in a subsequent appropriations act. 

If no date were specified, or if St. 1970, c. 480, § 6 or corresponding 
provisions were not included in the appropriations act, it would be my 
opinion that, absent contrary language in the act, the effective date of 
such appropriation act would have to be regarded as the effective date of 
any increases in salary. 

Question Five 
All the police officers who are entitled to incentive pay increases 
under G. L. c. 41, § 108L will, upon retirement, receive their pensions 
under G. L. c. 32, the "Contributory Retirement System for Public 
Employees.'' Section 5(2) of G. L. c. 32 provides a formula by which a 
public employee's pension is determined on the basis of his "regular 
compensation." 

According to G. L. c. 32, § 1 (in relevant part): 

'Regular compensation', during any period subsequent to 
December thirty-first, nineteen hundred and forty-five, shall 
mean the salary, wages or other compensation in whatever 
form, lawfully determined for the individual service of the 
employee by the employing authority, not including bonus or 
overtime ..." 

It is clear then that the salary increase provided by G. L. c. 41, § 
108L must be lawfully determined for each police officer by each em- 
ploying authority for it to be considered "regular compensation" for 
pension purposes. Otherwise, it would be in the nature of a bonus, and 
therefore excluded from consideration in pension determination. 

As to the city and town police officers, this question would be re- 
solved upon a decision by the various city and town employing au- 
thorities whether to adopt the career incentive pay program. If they 
adopt the program, the employing authorities would necessarily follow 
their lawfully mandated procedures to provide for the additional com- 
pensation, fifty percent of which would be reimbursed by the Common- 
wealth. This could conceivably require amendments to any existing or- 
dinances and by-laws defining the present scope of compensation. In 
any event, the following of those procedures would, in my opinion, be 
sufficient to qualify the incentive pay increase as "salary, wages or 
compensation in whatever form, lawfully determined ... by the em- 
ploying authority," and thus as "regular compensation." 

As for the State, MDC and Capitol Police, it is my opinion that by St. 
1970, c. 835 the General Court intended the career incentive pay in- 
creases to be additional "regular compensation." It seems unlikely that 
the General Court contemplated that the pay increases should be con- 



26 P.D. 12 



sidered in any other way. The Act clearly states that the program offers 
increases in "base salary", that phrase being used three times. In para- 
graph four, it is stated the Act provides "career incentive salary in- 
creases.'' (Emphasis supplied.) The increment is not an amount in addi- 
tion to base salary, but an increase in base salary itself. It is by no 
means temporary; it is to continue as a permanent addition to salary as 
long as the officer shall serve. The new, increased compensation for 
police officers will continue to meet the common and approved usage of 
the word salary, "fixed compensation paid regularly" {Webster's Third 
New International Dictionary, 1964). "Words found in a statute are to 
be given their ordinary lexical meaning unless there be a clear indication 
to the contrary." Randall's Case, 331 Mass. 383, 385. There is no clear 
indication that the new compensation was intended other than to fit what 
is designated as salary in the definition of "regular compensation," G. 
L. c. 32, § 1. However, there is sufficient affirmative indication that 
such is what was intended by the General Court for me to so hold as my 
opinion. 

The question remains, in reference to G. L. c. 32, § 1, whether the 
salary increase is "lawfully determined for the individual service of the 
employee by the employing authority." My opinion is that it is. 

In each case the employing authorities of the State, MDC and Capitol 
Police must implement the career incentive pay program. They were 
given no discretion by the General Court, as was given to the cities and 
towns, to refuse to accept it. Certainly there can be no contention that 
the Legislature did not have the lawful capacity to prescribe the program 
for each authority. The legislative intent, indicated by the language of 
the Act that the increments in pay should be increases in base "salary", 
must be carried out. Consequently, the only action to be taken by these 
employing authorities is to compute the statutorily mandated increases 
which come under "salary, wages or other compensation"; and, there- 
fore, the increments in base salary should be considered "regular com- 
pensation" under G. L. c. 32, § 1. 

As of this time, the salary schedule for the pay plan of the Common- 
wealth, as set forth under G. L. c. 30, § 46, has not been revised to ac- 
commodate for the percentage increases in base salary under the career 
incentive pay program. Notwithstanding that fact, it is my opinion that 
the new salaries have been lawfully determined so as to be regular com- 
pensation. The Legislature apparently believed that the computation in- 
structions for new salaries set forth in St. 1970, c. 835 were sufficiently 
clear so that the new salaries can be determined by reference to the gen- 
eral salary schedule. I see no substantial significance in a failure to mod- 
ify the schedule itself. 

In accordance with the above, my answer to Part (a) of Question 5 is 
"Yes." 

Group insurance is controlled by G. L. c. 32A for employees of the 
Commonwealth and by G. L. c. 32B for employees of the counties, 
cities and towns. The only section in each chapter affected by the career 



P.D. 12 127 



incentive pay program is that permitting additional insurance over the 
minimum amounts provided for all public employees. General Laws, c. 
32A, § lOA and G. L. c. 32B, § lOB both provide for additional group 
insurance based on the employee's "gross annual salary, wages or com- 
pensation" (not including overtime) in accordance with a set schedule. 
Since it is my opinion that the career incentive pay increases represent 
additional salary, I believe that clearly the police officers who receive 
such increases will be entitled to the additional group insurance allowed 
in consideration of their new salary figures. Therefore, my answer to 
Part (b) of Question 5 is "Yes." 

State Police detectives and Capitol Police officers are not entitled to 
overtime pay, so your Question 5(c) applies to overtime pay for Un- 
iformed Branch State Police officers, MDC officers and local police of- 
ficers. 

Under G. L. c. 22, § 9D, all members of the Uniformed Branch State 
Police shall be granted compensation "for each additional duty hour 
beyond the normal work day or compensatory time off shall be granted 
as soon thereafter as is practicable." Since undoubtedly additional duty 
hours are to be compensated ai the same rate which applies to regular 
hours, it is clear to me that the salary increase from the career incentive 
pay program should be reflected in such overtime compensation. 
As for the MDC Police, G. L. c. 92, § 62B provides: 

"Notwithstanding any other provision of law, members of 
the police force of the commission who perform service 
beyond their regular hours of service shall be compensated 
therefor as overtime service, at an hourly rate equal to one. 
and one half times the hourly rate of their regular compensa- 
tion for their average weekly hours of regular duty." 

This compensation for overtime service being based on the hourly rate 
of "regular compensation." in accordance with my answer to Part (a) of 
Question 5, I believe that MDC Police overtime pay should also reflect 
any career incentive program augmented salary. 

The statutory provisions with respect to overtime compensation of 
local police are found in G. L. c. 41. § 1 1 IH, and G. L. c. 147, §§ I7A 
et seq. 

General Laws, c. 41. § lllH provides that: 

"... [A]ny police officer of a city or town who is required 
to perform any service beyond his regular established hours 
of service on primary day, on election day. on the thirty-first 
day of October or at any parade or race or at any public 
celebration or while police listing, shall be compensated for 
such additional hours of service at the rate per hour of his 
regular compensation ..." 

General Laws. c. 147. § 17A provides that for working on 
specified holidays any additional payment in lieu of a com- 
pensatory day off shall be based on "regular compensation 



128 P.D. 12 

. . . or such higher rate as may be determined by the person 
or persons authorized to establish pay scales in the respective 
police departments." 

General Laws. c. 147. § 17B (optional for cities and towns), 
except for lack of a provision for compensatory time off. re- 
quires payment in the same manner as provided in section 
17 A for service beyond five days and forty hours in one 
week. 

General Laws. c. 147. § 17C. applying to cities and towns 
which have not accepted section 17B, provides that an officer 
working overtime: 

"... may be given time off equal to such period of overtime 
duty or . . . he may be paid for such period of overtime duty 
at such an hourly rate as may be determined by the authority 
in charge of the police department, which rate shall in no 
event be less than one and one half times the hourly rate of 
his regular compensation for his average weekly hours of reg- 
ular duty." 
General Laws. c. 147. § 17F provides an additional day's pay. pre- 
sumably based on regular compensation, for police chiefs who work on 
specified holidays. Added to section 17F by St. 1969, c. 872. § 1. is a 
provision (optional for cities and towns) requiring that service in excess 
of forty hours in five days: 

"be compensated at an hourly rate equal to one and one half 
times the hourly rate of his regular compensation for his av- 
erage weekly hours of regular duty or such higher rate as may 
be determined by the person or persons authorized to estab- 
lish pay scales in the respective police departments . . .'" 
It is my opinion that in all the above sections applying to local police, 
providing overtime either equal to or at a multiple of "regular compensa- 
tion" requires that overtime pay be based upon salary as may be aug- 
mented by the career incentive pay program. 

In accordance with the above, my answer to Part (c) of Question 5 is 
"Yes." 

St. 1969. c. 547, § 2 A provides a cost-of-living adjustment to every 
"salary" payable under sections forty-five to fifty, inclusive, of G. L. c. 
30. Since it is my opinion that the Legislature intended the career incen- 
tive pay increases to be an increase in "salary", it is also my opinion 
that such adjustments should be based upon any such increased salary. 
My answer to Part (d) of Question 5 is, therefore, "Yes." 

Question Six 

The statute in question, G. L. c. 41, § 108L, states in paragraph four, 
sentence one: 

"Any city or town which accepts the provisions of this sec- 
tion and provides career incentive salary increases for police 



P.D. 12 129 



officers shall be reimbursed by the commonwealth for one 
half the cost of such payments upon certification by the board 
of higher education . . ."' 
If I may take out of order the parts of this question as they correspond 
to the parts of Question 5, 1 should like to dispose first of (b), group 
insurance. Under G. L. c. 32B, § 11 A, the premium for additional group 
insurance is withheld from each payment of salary or wages of the em- 
ployee, and the governmental unit makes no contribution to said pre- 
mium. So there is no cost incurred by the city or towns as a result of the 
salary increases, other than the minimal administrative cost of paper 
work in adjusting the premium amount withheld. It is my opinion that 
any such cost in relation to group insurance is of such a de minimis na- 
ture that it was not intended by the Legislature to be reimbursed. The 
cost of ascertainment would be greater than the cost incurred. "The in- 
tention to accomplish an absurd result, unless clearly required by lan- 
guage of the statute, is not to be attributed to the Legislature." Johnson 
V. Commissioner of Public Safety, 355 Mass. 94. Therefore, my answer 
to Part (b) is that there will be no reimbursable costs in relation to group 
insurance as a result of the career incentive pay program. 

The first sentence of paragraph four of G. L. c. 41, § 108L provides 
that reimbursement is to be measured by one half "the cost of such 
payments''; but one cannot be sure what is the proper antecedent to the 
word "such". However, it appears by reference to the complete sen- 
tence that the only payments intended to be included are those made in 
the form of the "career incentive salary increases" themselves. This is 
the most logical interpretation of the language of the sentence; and a 
statute must be construed "in accordance with the intention of the 
Legislature as expressed in the language used." Solomon v. Nessen, 263 
Mass. 371, 377. Therefore, it is my opinion that the Legislature intended 
reimbursement to the cities and towns of fifty percent of the cost of the 
saUiry increases alone. This interpretation excludes payment as to the 
municipal costs of increased overtime and pensions. Overtime and pen- 
sions, from the discussion above, quite clearly are not salary; rather 
they are based upon salary. If the statute had provided that the Com- 
monwealth would reimburse for one half the "costs incurred as a result 
of such payments", then a different interpretation would follow. 

Consequently, it is my opinion that cities and towns may not be reim- 
bursed for costs incurred, as a result of the career incentive pay pro- 
gram, in increased payments on (a) pensions, and (c) overtime pay. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



130 P.D. 12 



Number 48 June 16, 1971 

Honorable Milton Greenblatt, M.D. 
Commissioner of Mental Health 
190 Portland Street 
Boston, Massachusetts 02114 

Dear Commissioner Greenblatt: 

You have requested my opinion relative to the powers and duties of 
persons holding the position of assistant superintendent in various in- 
stitutions under the jurisdiction of the Department of Mental Health. 

Specifically, you inquire as follows: 

"1. In the absence, incapacity or disability of a Superinten- 
dent, does the Assistant Superintendent have the author- 
ity to preside over a disciplinary hearing at the institution 
relating to the employee of the institution resulting in his 
discharge? 

2. Do the words, 'appointing authority' contained in Gen- 
eral Laws, Chapter 31, Section 43 (a) include Assistant 
Superintendents for the purpose of permitting the Assis- 
tant Superintendent to hold discharge proceedings in the 
absence or incapacity of the Superintendent? 

3. May the Commissioner of Mental Health make a formal 
designation under Chapter 19, Section 1, to allow the As- 
sistant Superintendent to act as appointing authority in 
case of absence, incapacity or disability of the Superin- 
tendent?'' 

For the reasons hereinafter stated, I answer your first two questions 
in the affirmative and your third question in the negative. 

Although G. L. c. 123, § 28 provides that the superintendent of a state 
hospital or a state school is the appointing authority for employees at 
those institutions and the statutes relating to institutions within the De- 
partment of Mental Health make no provision for the assumption of the 
powers and duties of the superintendent by the assistant superintendent 
in the absence, incapacitation or disability of the former, an assistant 
superintendent may, under certain circumstances, exercise the powers 
and duties of the superintendent. 

In this regard, St. 1950, c. 639, § 20A (as inserted by St. 1962, c. 767) 
provides: 

"The commissioner or head of each executive or adminis- 
trative department of the commonwealth, including the state 
secretary, the attorney general, the treasurer and receiver- 
general, and the auditor, and the director or head of each di- 
vision in each such department, shall designate, by name or 
position, five persons in his respective department or division 
who shall exercise, successively, his duties in the event of his 
absence or disability. Each such designation shall be subject 
to approval by the governor and council and shall be in effect 



P.D. 12 131 



until revoked by the officer who made such designation. Per- 
sons designated under this section to perform the duties of a 
department or division head in his absence or disability shall 
perform such duties only in succession to persons so au- 
thorized under any other provision of general or special law." 
Since I conclude that the superintendent of a state hospital or a state 
school is "the director or head of [a] . . . division in'' the Department of 
Mental Health, it follows that the superintendent may submit the desig- 
nation referred to in section 20A. Accordingly, if an assistant superin- 
tendent is designated to act in the absence of the superintendent and if 
the designation is approved by the Governor,' an assistant superinten- 
dent would be permitted to preside at a disciplinary hearing and would 
qualify as the appointing authority within the meaning of G. L. c. 31, § 
43(a). 

With respect to your third question, the provisions of section 20A do 
not appear to permit the designation by the Commissioner of an assis- 
tant superintendent to act in the superintendent's absence, incapacity or 
disability. I find nothing in G. L. c. 19, § 1 which would authorize such 
a designation, and, accordingly, it is my opinion that the Commissioner 
may not designate an assistant superintendent to act as the appointing 
authority at a state hospital or a state school. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 49 June 16, 1971 

Honorable Leon Charkoudian 
Commissioner of Community Affairs 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Charkoudian: 

You have requested my opinion on the following question: 

"If a housing authority determines the compensation of its 
executive director in accordance with section 7 of Chapter 
12 IB of the General Laws, can the Department of Commun- 
ity Affairs, in reviewing the proposed operating budget of the 
Authority, require the Authority to change said compensation 
to an amount that meets the approval of said Department?" 
For the reasons stated hereinafter, I answer your question in the af- 
firmative. 

You state that it has the practice of the Department of Community 
Affairs (the Department) to set uniform standards regarding the salaries 
of executive directors, and that it has been the practice of housing au- 

' The reqiiiremenl of ;ipprinul by the Council was repe.iled by S(. 1964, c. 74U (G. L. c. d App.) 



132 P.D. 12 



thorities to submit all financial items to the Department for approval be- 
fore including them in the budget. Evidently, it was also the practice of 
the State Housing Board, and later the Department of Commerce and 
Development, which were formerly charged under G. L. c. 121 with the 
duties now assigned to your Department, to exercise general supervision 
and control over the financial affairs of local housing authorities, includ- 
ing the compensation of executive directors. See Jackson v. Chelsea 
Housiiiii Authority, 327 Mass. 423, 425; Flanagan v. Lowell Housing 
Authority, 356 Mass. 18, 21 (Mass. Adv. Sh. (1969) 787). The Supreme 
Judicial Court has only recently declined an opportunity to decide 
whether former G. L. c. 121. §§ 261 et seq. (now contained in G. L. c. 
12 IB, inserted by St. 1969, c. 751, § 1) authorized such control by the 
Department. Flanagan v. Lowell Housing Authority , supra. The answer 
to your question, therefore, requires an examination of the statutory 
provisions governing the relationship between the Department and a 
local housing authority. 

General Laws, c. 121 B, § 7, provides that a housing authority "may 
employ counsel, an executive director who shall he e.\ officio secretary 
of the authority, a treasurer who may be a member of the authority and 
such other officers, agents and employees as it deems necessary or 
proper, and shall determine their qualifications, duties and compensation 
. . ." (Emphasis supplied.) Section 11 (/) authorizes a housing authority 
to "enter into, execute and carry out contracts ..." 

Chapter 12 IB, § 29, requires a housing authority to report annually to 
the Department in a form to be prescribed by the Department, "an ac- 
curate account of all its activities and all its receipts and expenditures 
..." Section 29 provides further that the Department "may investigate 
the budgets, finances and other affairs of housing authorities and their 
dealings, transactions and relationships."' The Department has the 
power to examine the records of housing authorities, "and to prescribe 
methods of accounting and the rendering of periodical reports in relation 
to . . . housing projects." In addition, the Department has the power to 
promulgate "rules and regulations, prescribing standards and setting 
principles governing the planning, construction, maintenance and opera- 
tion of . . . housing projects by housing authorities," which rules and 
regulations may be enforced in a proceeding in equity. 

Section 31 of c. 121 B requires a housing authority to submit to the 
Department for its approval the plans for a proposed low-rent housing 
project, including the estimated cost, proposed method of financing and 
a detailed estimate of the expenses and revenues of the project. 

Section 34 of c. 12 IB authorizes the Department, in behalf of the 
Commonwealth, to enter contracts with housing authorities for the pur- 
pose of granting state financial assistance for a project. "Each such con- 
tract shall contain such limitations as to the cost of the project and ad- 
ministrative and maintenance costs, and such other provisions, as the 
depcutment may require." (Emphasis supplied.) The standard Contract 

' Ci. 1 , c. i:iB. § :y. ;is .imeiulcJ hy St. 1970. c. S51. § 2. As originally enacted by Si. 1%9. c. 75 I . § I, this section 
prcuideJ. as did former c. 121. § 2hV . that the Department (or its predecessiirl "may mvestigate the affairs of housing 
.uithonlics and their dealings, iransaclions and relationships." 



P.D. 12 133 



for Financial Assistance, drafted by the Department pursuant to section 
34. contains in cl. 5(c) an agreement by the housing authority to submit 
to the Commissioner for his approval its proposed operating budget for 
the next fiscal year, and a further agreement that the housing authority 
"will operate the Project during such fiscal year within the total amount 
and in accordance with the details of the budget as approved by the 
Commissioner." (Emphasis supplied.) 

It is clear that a housing authority in the first instance has the power 
to employ an executive director and to set his salary. In my opinion, 
however, the exercise of that power is subject to review and possible 
disapproval by the Department. In requiring housing authorities to sub- 
mit accounts of their activities, receipts and expenditures, and in grant- 
ing the Department the power to "investigate the budgets, finances and 
other affairs" of the housing authorities, to examine their records, to 
approve plans for the construction and financing of housing projects, 
and to promulgate rules and regulations governing the construction and 
operation of housing projects, the Legislature has provided the Depart- 
ment with broad supervisory powers and duties. Included among these 
powers and duties is the authority to promulgate rules and regulations 
regarding expenditures and compensation for employees. See 1967 Op. 
Atty. Gen., p. 237. 

While it does not appear from your letter that the Department has 
promulgated any rules or regulations regarding compensation of execu- 
tive directors, a similar result has been accomplished with regard to 
housing authorities which have executed the standard contract for state 
financial assistance, drafted by the Department pursuant to G. L. c. 
12 IB, § 34. The right reserved in cl. 5(c) of the contract necessarily im- 
plies the right of the Commissioner to disapprove a budget which in- 
cludes compensation for an executive director which the Commissioner 
finds does not meet the uniform standards established by the Depart- 
ment. See Op. Atty. Gen., supra. 

Note should be taken, however, of the decision in Chessman v. 
Somerville Housing Authority, 332 Mass. 92. That decision does not in- 
dicate a lack of authority on the part of the Department to require hous- 
ing authorities to adhere to Department standards in the compensation 
of executive directors. However, the Court did hold in that case that a 
housing authority which had executed a contract of employment with its 
executive director was liable on the contract even though the housing 
authority had previously agreed with the State Housing Board (the pre- 
decessor of your Department) not to enter into any contracts without 
the Board's approval. The fact that the executive director, when he en- 
tered into the contract of employment, had no knowledge of the prior 
contract between the housing authority and the Board, appears to have 
dictated the result in Chessman. In my opinion the result of that case 
would have been different had the Department adopted and promulgated 
its standards for compensation as administrative regulations under G. L. 



1^4 P.D. 12 

c. 121 B, § 29. Such regulations adopted in conformity with G. L. c. BOA 
would have the force of law. DaLomha's case, 352 Mass. 598, 603. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 50 j^,ne 18, 1971 

Honorable William F. Powers 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Powers: 

At a meeting of the Joint Steering Committee of the New England Or- 
ganized Crime Intelligence System (NEOCIS), you requested my opin- 
ion with respect to certain provisions of the New England State Police 
Compact (Mass. G. L. c. 147 App.). Specifically, you raise the follow- 
ing two questions: 

"I. May NEOCIS be legally designated as the official intel- 
ligence bureau of the New England State Police 
Administrator's Conference (NESPAC)? 
"2. In such event, would state police forces of any party 
state assigned to NEOCIS possess the same powers, 
duties, rights, privileges and immunities as members of 
the Massachusetts State Police enjoy, whenever the 
former are engaged in the performance of their duty?"' 
I answer both questions in the affirmative. With respect to your first 
question, Mass. G. L. c. 147 App., § 1-1, Article IV provides in perti- 
nent part: 

"The Conference shall have power to: 
"(a) Establish and operate a New England Criminal Intel- 
ligence Bureau ... in which shall be received, assembled and 
kept case histories, records, data, personal dossiers and other 
information concerning persons engaged or otherwise as- 
sociated with organized crime." 
I assume that the other member states of the New England State 
Police Compact have comparable statutory provisions, and you have not 
advised me to the contrary. Accordingly, I am of the opinion that NES- 
PAC can legally designate NEOCIS as its official intelligence bureau 
by, for example, a properly recorded vote of its Executive Board.' 

In such event, I am of the further opinion that state police forces of 
any party state assigned to NEOCIS would possess the same powers, 
duties, rights, privileges and immunities as members of the Massachu- 
setts State Police enjoy, whenever the former are engaged in the per- 

' I assume for the purposes of this opinion, that NEOCIS is properly qualilieJ to perlorm the lunclions of the 
Bureau referred to in Article IV. 



P.D. 12 135 

formance of their duty. As Mass. G. L. c. 147 App., § I-l. Article 

VI 1(d) specifically provides: 

"Whenever any of the state police forces of any party state 
are engaged outside their own state in carrying out the pur- 
poses of this compact, the individual members so engaged 
shall have the same powers, duties, rights, privileges and im- 
munities as members of the state police department of the 
state in which they are engaged, but. in any event, a request- 
ing state shall save harmless any member of a responding 
state police department serving within its borders for any act 
or acts done by him in the performance of his duty while en- 
gaged in carrying out the purposes of this compact." 

Verv trulv yours, 

ROBERT H. QUINN 

Attorney General 

Number 51 June 25. 1971 

Honorable Edward J. Ribbs 
Commissioner of Public Works 
100 Nashua Street 
Boston. Massachusetts 021 14 

Dear Commissioner Ribbs: 

You have requested my opinion relative to the authority and obliga- 
tions of the Department of Public Works (the Department) regarding the 
payment of moving and relocation expense payments to certain indi- 
viduals and businesses who have been displaced as a result of eminent 
domain takings by the Department. You state that these individuals and 
businesses are tenants of property acquired by the Department under 
the accelerated highway program and in turn leased by the Department 
under St. 1966. c. 427: that they have failed to pay all or part of the rents 
due the Department: and that they are entitled to moving and relocation 
expense payments under G. L. c. 81. § 7J. 

You state further that before approval by the United States Secretary 
of Transportation of any Federal-aid highway project which will displace 
any person, business or farm operation, the Department is required by 
the Federal Uniform Relocation Assistance and Real Property Acquisi- 
tion Policies Act of 1970. § 210. Pub. L. 91-646 (superseding 23 U.S.C. 
§ 502). to give satisfactory assurances to the Secretary that fair and 
reasonable relocation payments will be made to displaced occupants. 

Your questions are: 

"1. May the Department pay full moving expense and relo- 
cation payments to a displaced occupant if such dis- 
placed occupant owes rent to the Department for the 
premises from which displacement is made? 
^"2. (a) May all or any part of any moving expense and relo- 
cation payment due a displaced occupant be withheld 



136 P.D. 12 

if such displaced occupant be withheld if such dis- 
placed occupant owes rent to the Department for the 
premises from which displacement is made? 
(b) If the answer to 2(a) is in the aftlrmative, may the 
amount owed the Department for rent be deducted 
from such payments? 
"3. (a) Is the Department required to withhold all or any part 
of any moving expense and relocation payment due a 
displaced occupant if such displaced occupant owes 
rent to the Department for the premises from which 
displacement is made? 
(b) Is the Department required to deduct the rent owed 
the Department from such payments? 
"4. If the occupants are displaced under a Federal-aid high- 
way project, do the assurances required to be given and 
which have been given by the Department in accordance 
with Section 502 of Title 23 of the United States Code 
and Section 210 of the Uniform Relocation Assistance 
and Real Property Acquisition Policies Act of 1970, pro- 
hibit the Department from withholding moving expense 
and relocation payments or from deducting the rents due 
from such payments?"* 

For the reasons hereinafter stated. I answer question 1 in the affirma- 
tive and question 2(a) and (b) in the negative. Answers to questions 3 
and 4 are not required. 

The Department is required under G. L. c. 81. § 7J' to pay reasonable 
and necessary moving or relocation expenses to persons who are dis- 
placed by the action of the Department in taking property for highway 
purposes. Such payments ''shall not be subject to attachment by trustee 
process or otherwise, nor shall they be subject to be taken on execution 
or other process." Ihid. as amended by St. 1967, c. 162. § 2. 

Under G. L. c. 29. § 17, the Governor may instruct the Treasurer and 
Receiver General to withhold all payments to any person who is illegally 
withholding money from the Commonwealth. This procedure is not 
strictly an "attachment", "execution", or "other process", it is more in 
the nature of the exercise of a right of setoff. Nevertheless, in construing 
statutes which, like G. L. c. 81. § 7J. exempt certain funds or payments 
from attachment or execution, the courts have generally held that such 
statutes operate to exempt the funds from a right of setoff. See, e.g., 
Financial Acceptance Co. v. Breaux. 160 Colo. 510, 419 P. 2d 955 
(1966): 20 Am. Jur. 2d, Connterclaini, Recoupment and Setoff, § 33. 

The various jurisdictions are divided, however, as to whether exemp- 
tion provisions like that in G. L c. 81, § 7J. operate to bar claims by the 
state. See. generally. 31 Am. Jur. 2d, Exemptions, §§ 130-132. 134, 135. 
There is no express mention of the Commonwealth in G. L. c. 81. § 7J: 

' Sec ,ilso (i. I . c. 79. § h \. anJ l\ 79 \. § 7, 



P.D. 12 137 



and it is a general rule of statutory construction that a statute will not 
bind the Commonwealth unless the statute expressly so provides. See 
Hansen v. Coinmomvealtlu 344 Mass. 214, 219, and cases cited. How- 
ever, those cases which have held that exemption provisions do not bind 
the state have placed great weight on the nature of the state's claim. In 
the ordinary case the claim will be for unpaid taxes or for fines or penal- 
ties, which are unlike usual contractual debts or unpaid judgment in that 
there is a strong public policy in enforcing payment. See cases collected 
in 31 Am. Jur. 2d, Exemptions, §§ 131, 132. The claim of the Common- 
wealth in the present situation is merely that of a lessor for rent, and 
thus lacks the especially compelling public interest in its enforcement 
that has influenced some courts to except claims for taxes or fines from 
exemption provisions. Moreover, the greater weight of authority seems 
to hold that to allow claims by the state to be enforced against otherwise 
exempt funds would be to frustrate the policy of the exemption law. See 
31 Am. Jur. 2d, Exemptions, § 130. 

It is my opinion that the exemption provision in G. L. c. 81, § 7J, 
prohibits the withholding of moving and relocation expense payments on 
account of rent owed to the Commonwealth. Moving and relocation ex- 
pense payments are provided for in three separate sections of the Gen- 
eral Laws, c. 79, § 6A; c. 79A, § 7; c. 81, § 7J. They are intended "to 
provide forthwith for the relocation of persons dispossessed by the tak- 
ing of real property . . ." St. 1963, c. 594, emergency preamble. One 
purpose of such payments is the reduction of the intensity of the finan- 
cial impact of a forced relocation. See Note, The Interest in Rooted- 
ness: Fcunily Relocation and an Approach to Full Indemnity, 21 Stan- 
ford L. Rev. 801, 807-818 (1969). Another apparent purpose of such 
payments is to facilitate the implementation of the highway program. 
See id., 804 at fn. 20. The exemption provision of G. L. c. 81, § 7J 
which was added on the recommendation of the Department (H. Doc. 
113 of 1967, §11), furthers the statutory purpose by assuring that the 
payments will be used for relocation, and not tied up by attachment. 
This provision, which appears to be unique among relocation assistance 
statutes, is especially important where the displaced occupants have low 
income levels, see Note, supra, 21 Stanford L. Rev. at 824, where the 
financial impact on the displaced occupant is highest and the possibility 
of delay in the implementation of the highway program is most likely. 
Certainly the Commonwealth has an interest, as evidenced in G. L. c. 
29, § 17, in adjusting its accounts with persons illegally withholding 
money. In my opinion, however, that interest is not so compelling as to 
warrant the frustration of the purposes of the statutes granting moving 
and relocation expense payments and exempting them from attachment 
and execution. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



138 P.D. 12 



Number 52 June 30, 1971 

Honorable Edward J. Ribbs 
Commissioner of Public Works 
100 Nashua Street 
Boston, Massachusetts 02114 

Dear Commissioner Ribbs: 

You have requested my opinion whether the Department of Public 
Works (the Department) is authorized under St. 1969, c. 768 to expend a 
certain sum from funds appropriated for the accelerated highway pro- 
gram in order to provide one half of the cost of the construction of a 
ferry to be used by the Woods Hole, Martha's Vineyard and Nantucket 
Steamship Authority (the Authority). The other half of the construction 
cost would be supplied by the Authority. The sum expended by the De- 
partment from funds appropriated for the accelerated highway program 
would then be reimbursed by the Federal government under Section 139 
of the Federal-Aid Highway Act of 1970 (Pub. L. 91-^05, 84 Stat. 1713). 
You ask further whether, assuming such expenditure to be authorized, 
the sum reimbursed by the Federal government may be credited to ac- 
celerated highway program funds rather than to the "Commonwealth's 
general fund." 

1 answer your first question in the affirmative. Section 6 of St. 1969, c. 
768, entitled ''An Act Relative to the Accelerated Highway Program," 
(the Act) directs the Department to "accept any federal funds available 
for projects authorized in section one of this act ..." (Emphasis sup- 
plied.) In § 1 of the Act the Department is authorized to expend funds 
"for projects for the laying out, construction, reconstruction, resurfac- 
ing, relocation or improvement of highways, bridges, grade crossing 
eliminations and alternation of crossings at other than grade, and for 
construction of needed improvements on other routes not designated as 
state highways and without acceptance by the commonwealth of re- 
sponsibiUty for maintenance . . ." (Emphasis supplied.) 

It is evident that the Act does not authorize the Department to ex- 
pend funds for the purpose of constructing ferries unless the phrase, 
"other routes not designated as state highways," is construed to include 
ferry lines. As a general proposition, ferries have been regarded as sub- 
stitutes for bridges and as integral parts of highway systems. See, e.g.. 
Savage Truck Line v. Commonwealth, 193 Va. 237, 242-243, 68 S.E.2d 
510, 513-514; State ex rel. King County v. Murrow, 199 Wash. 685, 691, 
93 P. 2d 304, 307; Puget Sound Nav. Co. v. United States, 107 F.2d 73, 
74-75 (9th Cir.), cert. den. 309 U.S. 668; United States v. Washington 
Toll Bridge Authority, 190 F. Supp. 95, 97-98 (W.D. Wash.). In this 
Commonwealth, however, the Legislature has not seen fit to integrate 
the operation of ferries generally with the highway system. Nothing in 
G. L. c. 81, relative to the Department's authority over the highway 
system, or in G. L. c. 91, relative to the Department's authority with 
regard to waterways, contains any reference to ferries. Legislative 
enactments concerning ferries have treated them separately from the 
highway system. See G. L. c. 88, §§ 1-8. See also St. 1960, c. 701 (creat- 
ing the Authority). 



P.D. 12 139 

As noted above, however, the Department is directed in § 6 of the 
Act to "accept any federal funds available for projects authorized in sec- 
tion one of this act . . ."" In addition, G. L. c. 81. § 30 authorizes the 
Department to 

"make all contracts and agreements and do ail other things 
necessary to co-operate with the United States in the con- 
struction and maintenance of highways, under an act of Con- 
gress approved on July eleventh, nineteen hundred and six- 
teen, entitled 'An Act to provide that the United States shall 
aid the states in the construction of rural post roads and for 
other purposes, 'as amended and supplemented, . . . [and to ] 
make any agreements or contracts that may be required to 
secure federal aid in the construction of highways under the 
provisions of the act of Congress aforesaid . . ."' 
The Federal statute referred to in G. L. c. 81, § 30 now appears as 
amended in 28 U.S.C. §§ 101 et sei>. One of the amendments to that 
statute was contained in § 139 of the Federal-Aid Highway Act of 1970 
(Pub. L. 91-605. 84 Stat. 1713) which added to 23 U.S.C. § 129 the fol- 
lowing: 

(f) Notwithstanding section 301 of the title, the Secretary 
[of transportation] may permit Federal participation 
under this title in the construction of ferry boats, 
whether toll or free, subject to the following condi- 
tions: 

"(1) It is not feasible to build a bridge, tunnel, combination 
thereof, or other normal highway structure in lieu of 
such ferry. 

"(2) The operation of the ferry shall be on a route which has 
been approved under section 103(b) or (c) of this title as 
a part of one of the Federal-aid systems within the State 
and has not been designated as a route on the Interstate 
system . . .*' 

The phrase "other routes not designated as state highways" in § 1 of 
the Act. refers in part to the federal Interstate Highway System. See 
1966 Op. Atty. Gen., p. 274. It also refers to Federal-aid primary and 
secondary systems described in 23 U.S.C. § 103(b). (c.) Since passage of 
§ 139 of the Federal-Aid Highway Act of 1970, quoted above, primary 
and secondary road systems may, with the approval of the Secretary of 
Commerce, include the operation of ferries on their "routes." 

It is my opinion that the provision in St. 1969. c. 768, § 6, that the 
Department shall accept any federal funds available for projects au- 
thorized in § 1, when read with the authority of the Department in G. L. 
c. 81, § 30, to contract with the federal government in order to secure 
federal aid under 23 U.S.C. §§ 101 et seq., justifies the conclusion that 
the phrase in St. 1969. c. 768, § 1, "other routes not designated state 
highways." can be construed to refer to any "route" which may be in- 
cluded in Federal-aid highway sytems, including primary and secondary 
systems. Since a primary or secondary route now may include a ferry 



140 P.D. 12 



line, the Department is authorized to expend funds to aid in the con- 
struction of a ferry for that line. Cf. Lawrence Hoiisini^ Aitthy. v. 
Coiuinissioner of Labor and Indus., Mass. Adv. Sh. (1970) 1323, 
1328-1330. 

I see no constitutional barrier to such an expenditure. The initial ap- 
propriation for the accelerated highway program was from the Highway 
Fund, which consists for the most part of revenue from gasoline taxes 
under G. L. c. 64A, § 13. and registration fees, etc., under G. L. c. 90, § 
34. The funds for the program must therefore be expended in accor- 
dance with Art. 78 of the Articles of Amendment to the Constitution of 
the Commonwealth. ' Consequently, the operation of the ferry to be 
built must be an aid to the motoring public. See Opinion of the Justices, 
324 Mass. 746. Since ferries are generally regarded as substitutes for 
bridges and as integral parts of a highway system (see cases cited supra), 
the expenditure of funds appropriated from the Highway Fund for the 
construction of a ferry would not contravene Art. 78 so long as the ferry 
will ultimately be used to transport motor vehicles. 

Your second question relates to the disposition of Federal funds re- 
ceived in reimbursement for the cost of constructing the ferry. You state 
that ordinarily Federal reimbursements for highway construction are re- 
turned to the Highway Fund rather than to accelerated highway program 
funds. - 

You wish to know whether in this instance the Federal funds may be 
credited instead to the funds for the accelerated highway program. 

In my opinion the answer is in the negative. As noted above, the ex- 
penditure for this project of funds appropriated for the accelerated 
highway program is authorized by St. 1969, c. 768, § 1. Section 6 of that 
Act clearly mandates the disposition of Federal funds granted in reim- 
bursement of such expenditures: "The department shall accept any fed- 
eral funds available for projects authorized in section one of this act and 
such federal funds when received shall he credited to the Highway Fund 
. . ."' (Emphasis supplied.) There is no provision for crediting such 
funds directly back to the funds appropriated to the Department for the 
accelerated highway program. Nor is there any similarity to the situation 
described in the opinion in 1955 Op. Atty. Gen., pp. 108, 109-110. I 
know of no other authorization for crediting Federal funds directly to 
accelerated highway program funds. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

' Article 7S requires that revenue exacted I'rom owners of motor vehicles through hcense tees .md fuel la\es. etc. he used 
solely tor highways and hridges intended for motor vehicles. 

- Your letter states that the federal funds received "go mto the Commonwealth's general fund rather than into the accel- 
erated highway fund." Since St. 1969, c. 768. § 6 requires that such funds when received he credited to the Highway 
hund (see also Ci. L. c. K). § S). I interpret your use of the term "Commonwealth's generiil fund" to refer to not the 
(leneral hund itself iG. I., c. 29. § 21 but to all sums, mcliidmg the Highuay hund, which are held h> the Treasurer and 
are subject to appropriation before expenditure. 



P.D. 12 141 



INDEX TO OPINIONS 

AGENCY AND TOPIC OPINION PAGE 

Bank and Loan Agencies, Division of: 

Accessibility of certain stockholder lists and verifying 

documents to the public 45 112 

Board of Higher Education: 

Granting of academic degrees by business corporations 32 89 

Career incentive pay program for police officers 47 119 

Board of Registration in Medicine: 

Limited registration; physician not registered to prac- 
tice medicine within the Commonwealth 25 75 

Civil Service, Division of: 

Positions of Administrator of Field Operations of Au- 
thority Audits and Administrator of Field Operations 
of State Audits subject to Civil Service Law 4 38 

Civil Service and Registration, Department of: 

Power of cities and towns to hire unregistered persons 

as city engineers and town engineers 35 97 

Commissioner of Agriculture: 

Promotion of breeding of thoroughbred horses 6 41 

Community Affairs, Department of: 

Definition of "limited dividend organization"' 1 32 

Standards regarding the salaries of executive directors 

of a housing authority 49 131 

Corrections, Department of: 

Placement of females awaiting trial in Massachusetts 

Correctional Institution. Framingham 40 104 

Education, Department of: 

Bomb threats; opening schools on legal holidays to 

meet minimum school-year requirements 31 88 

"Reimbursable expenditures" for purposes of state 

educational aid to cities and towns 41 105 

Employment Security, Division of: 

Board of Review: discretion to waive ten day period 

for appeals 22 69 

Executive Council: 

Nomination and confirmation of Justice Edward F. 

Hennessey to the Supreme Judicial Court 43 107 

Governor: 

Pension for widow of Leo P. Doherty, Special Justice 

of Municipal Court of Boston 16 57 

Massachusetts Commission Against Discrimination: 

Validity of laws regulating employment of women in 

light of Title VII of the Civil Rights Act of 1964 13, 34 50, 95 

Mayor of the City of Gloucester: 

Leases of Cjloucester State Fish Pier Facilities to 

Gloucester Urban Renewal Authority 28 83 



46 


113 


48 


130 


27 


80 


29 


85 



AGENCY AND TOPIC OPINION PAGE 

Mental Health, Department of: 

Committment and treatment of persons determined to 

be dependent upon drugs 

Powers and duties of assistant superintendents in vari- 
ous institutions in DMH 

Metropolitan District Commission: 

Chlorination of effluent at Clinton Sewage Treatment 

Plant 

Overtime compensation for Captains of Metropolitan 
District Police Force 

Middlesex County, District Attorney: 

Compensation for legal assistants to be paid through 

Federal grant 18 62 

Motorboats, Division of: 

Arrest powers of enforcement personnel; Snowmobile 

and All Terrain Vehicle Law 37 99 

Natural Resources, Department of: 

Permission for Town of Canton to borrow funds for 

acquisition of certain real estate 30 86 

Public Health, Department of: 

Proposed sewerage system for 35 single family dwell- 
ings in West Barnstable 26 77 

Public Safety, Department of: 

Credit for prior service; State Police Detective 

Lieutenants 

Qualification of Children's Hospital Medical Center as 

"educational institution" 

Relationship of Uniformed Branch of State Police and 

Detective Bureau 

New England Organized Crime Intelligence System ... 

Public Welfare, Department of: 

Therapeutic abortion; authority to consent on behalf of 

patient 33 91 

Public Works, Department of: 

Assessment of Massachusetts Port Authority for 

tidewater displacement 36 98 

Public Works, Department of (continued): 

Effect of Presidential Proclamation suspending 

Davis- Bacon Act 

Payment of moving and relocation expense payments 
to certain individuals and businesses; eminent domain. 
Authorization to expend accelerated highway program 
funds on ferry construction 

Registrar of Motor Vehicles: 

Registry records of suspensions and/or revocations of 

licenses as public records 7 43 

Secretary of State: 

Federal Voting Rights Act; reading Constitution of 
Commonwealth in English language prior to registering 
to vote 5 40 



3 


37 


17 


61 


21 


66 


50 


134 



38 


101 


51 


135 


52 


138 



)PINION 


PAGE 


9, 10, 11, 


47 


12, 14, 19 


48, 49 




55. 63 


15 


55 


20 


65 


23 


70 



AGENCY AND TOPIC 

"Public policy"; inclusion on election ballot in various 
Representative Districts 8 

Right of certain persons to register to vote in 

Commonwealth 

Rights and duties of voting challengers at polling 

places; biennial state election 

Voting Rights Act Amendments of 1970 

Authorization to use replica of Great Seal of Com- 
monwealth on television news programs 24 74 

Soldiers' Home in Chelsea: 

Hiring former full-time employee for part-time evening 

and weekend work 42 105 

Soldiers' Home in Holyoke: 

Control and Supervision of Personnel 2 34 

Superintendent of Buildings: 

Construction of the Charles F. Hurley Employment 

Security Building; type and terms of lease 44 108 

Treasurer and Receiver General: 

Acceptance of chairmanship of a state political com- 
mittee; conflicts of interest 39 102 



'i» *' 



154'5f 



>^^