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

Public Document No. 12 



(III|P Qlommnnuipaltli of UHaHfiarljuafttH 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1975 




Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent. 
1500-2-77-129364 Estimated Cost Per Copy $2.51 



I 



Public Document 



No. 12 



(II|p Qlnmmonuipaltlj of IflaaBarljuBctlfi 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1975 




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



1 50O-:-77- 129,^64 



Kstimated Cost Per Copy $2.51 



QJliP QJnmmoniuealtlj of IHaflsarl|uaetla 

Boston, December 3, 1975 
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, 1975. 

Respectfully submitted, 

FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 



(HV Qlommottuiealtti uf iHassacIiuaelts 
DEPARTMENT OF THE ATTORNEY GENERAL 

Attornex General 
FRANCIS X. BELLOTTI 

First Assistant Attorney General 
Robert M. Bonin 



James R. Adams^ 
Phyllis H. Allen^ 
Nicholas P. Aranella 
George W. Arvanitis'-' 
Kenneth M. Barna' 
W. Channing Beucler 
Margot Botsford^ 
Jonathan Brant 
Daniel T. Brosnahan'" 
Garrick F. Cole* 
Kathleen Ryan Dacey 
Richard E. Daly« 
Danielle E. deBenedictis'" 
Paul Donaher^ 
Michael C. Donahue 
Richard C. Donovan'" 
Eleanor A. Dwyer 
Michael Eby^ 
Katherine FarrelF 
Charles P. Garner^ 
Mary Ann Gilleece' 
Brian F. Gilligan 
David B. Gittelsohn" 
Paula W. Gold 
Paul A. Good 
Robert V. Greco 
Richard A. Gross^ 
L. Scott Harshbarger 
William E. HowelF 
John F. Hurley* 
John J. Irwin 
William D. Jackson'^ 
James P. Kiernan'" 
Thomas M. Kiley 
Thomas R. Kiley 
Dennis LaCroix' 
Timothy J. Lane, Jr. 
John P. Larkin" 
George Lemelman 
Steven M. Leonard* 
William F. Linnehan 
Bernard Manning 



Assistant Attorneys General 

Edward J. McCormack III* 
Barton J. Menitove'* 
Michael B. Meyer^ 
John C. Mihos* 
Stephen Miller- 
David A. Mills 
James T. Morris" 
Henry F. O'Connell, Jr. 
Hugh B. O'Malley** 
Terence P. O'Malley 
Alan K. Posner 
Joel M. Pressman" 
Kevin J. Riordan** 
Paula Rosen' 
Steven A. Rosconi 
S. Stephen Rosenfeld 
Barbara J. Rouse^ 
Frank J. Scharaffa 
William A. Schroeder' 
Stephen Schultz 
Marc S. Seigle' 
Mitchell Sikora 
Bruce Singal* 
Susan K. Sloane' 
Barbara A. Smith 
Deborah S. Solomon' 
Piroska Soos^ 
George A. Stella^ 
Donald Stern'^ 
Paul J. Swartz* 
Bruce D. Twyon 
Frank K. Upham III* 
David Vigoda** 
John J. Ward 
Ellen R. Weiss 
Wade M. Welch 
Howard Whitehead* 
Robert A. Williams' 
Timothy J. W. Wise 
Donald P. Zerendow 
Stephen Ziedman 



P.D. 12 



Assistant Attorney General; Director Division of Public Charities 

Francis V. Hanify 

Assistant Attorneys General Assigned to Department of Public Works 

Jerold E. Berman Hugh J. Morgan Jr.' 

Elizabeth A. Bowen Robert Mulligan^ 

Jacob Brier^ Howard R. Palmer 

Garrett M. Byrne'* Joseph A. Pelligrino 

John P. Davey Edward J. Quinlan^ 

Dennis L. Ditelberg** Richard Rafferty 

Allan Gottlieb T. David Raftery 

James J. Haroules Robert Rodophele 

John F. Houton* Herbert L. Schultz 

David A. Leone* Sidney Smookler^ 

Michael J. Marks John J. Twomey 

Michael J. McCormack Gerald Van Dam 

Leo S. McNamara' Christopher H. Worthington 

Assistant Attorneys General Assigned 

to the Division of Employment Security 

Joseph S. Ayoub Hartley C. Cutter'" 

Chief Clerk 
Russell F. Landrigan 

Assistant Chief Clerk 
Edward J. White 



'Appointed February 1975 "Terminated February 1975 

^Appointed March 1975 'Terminated March 1975 

■'Appointed April 1975 "Terminated April 1975 

'Appointed May 1975 'Terminated May 1975 

'Appointed June 1975 "Terminated June 1975 



P.D. 12 



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6 P.D. 12 

alt|e QIammanuiealtti of MasBatliuaetta 

INTRODUCTION 

My first Annual Report as Attorney General of the Commonwealth of 
Massachusetts, as required by General Laws, Chapters 30 and 32, en- 
compasses the fiscal year from July 1, 1974 to June 30, 1975. 

Upon taking office on January 15, 1975, my first priority was to pro- 
fessionalize and reorganize the Department of the Attorney General. All 
assistant attorneys general now must work full-time. The use of special 
assistant attorneys general has been diminished appreciably. I have 
hired professionals of diverse background and viewpoints with expertise 
in their given fields. The staff has been reduced by twenty percent. At 
the same time, programs have been established with local colleges and 
law schools where students work part-time for course credit or as volun- 
teers, saving the taxpayers money, while helping the professional staff, 
who have profited from the students' hard work as well as their conta- 
gious enthusiasm. 

The Department of the Attorney General has been reorganized into 
four bureaus and eighteen divisions. Separate sections have been estab- 
lished to deal with the areas of Women's Rights, Privacy, and Affirma- 
tive Litigation. We have begun to build a professional law library in the 
Department of the Attorney General. Finally, plans are being made to 
consolidate physically the entire Department by moving to the new 
McCormack State Office Building. 

During my first six months in office, this Department's accomplish- 
ments have not been limited to organizational and personnel matters. A 
full description of the accomplishments and activities of the Department 
is set forth in the remainder of this report. 

The major accomplishments of the office include the substantial re- 
duction of the backlog of requests for Attorney General's opinions. Im- 
portant opinions were issued discussing the registration of lobbyists, the 
revealing of names of persons who have failed to file campaign state- 
ments and the impoundment of state funds. 

The Civil Bureau, through its efforts in collecting unpaid employer 
taxes, unpaid rents on state owned property, unclaimed bankbooks, and 
money owed to the Commonwealth because of automobile accidents, 
college loans, and charges for care in state hospitals, etc., as well as 
through its efforts in prosecuting fraudulent unemployed claims, recov- 
ered over $1,868,000 for the Commonwealth. 

The Criminal Bureau obtained indictments against nursing home 
operators allegedly committing large scale welfare fraud, and started an 
investigation into alleged campaign law violations by various officials of 
the Boston Fire Department. 



P.D. 12 



The Governmental Bureau defended before the United States Su- 
preme Court the Commonwealth's mandatory retirement statute for uni- 
formed state police officers and successfully defended against constitu- 
tional attack Department of Welfare policy changes necessitated by this 
year's fiscal crisis. The Affirmative Litigation Division of the Govern- 
mental Bureau initiated lawsuits challenging the license fees on oil im- 
posed by the President, and seeking a return of income taxes collected 
by New Hampshire from Massachusetts residents. 

The Public Protection Bureau has initiated proceedings to stop unfair 
and deceptive advertising practices, to enforce lead paint laws, and to 
protect consumers dealing with vocational schools, mobile homes and 
health spas. In addition, the Environmental Protection Division of the 
Public Protection Bureau has challenged the EPA permit issued to the 
MDC for its discharge into the Charles River, closed down the Bridge- 
water dump, and preliminarily enjoined the draining and filling of a two 
thousand acre wetland in Plymouth County. 

I have tried to build a diverse staff to present me all sides of issues. In 
addition, I have made every effort to leave my office at least one-half 
day each week to meet with the people and hear their views. I have tried 
to assure that all decisions made by this Department be carefully con- 
sidered under the law and considerate of the needs and desires of the 
people of the Commonwealth. The one thing I have insisted on is taking 
personal responsibility for all decisions, both popular and unpopular, 
made by this office. I look forward to continuing to serve as the Attor- 
ney General of this Commonwealth. 



I. CIVIL BUREAU 

Contracts Division 

The work of the Contracts Division is generally divided into three 
areas: (a) Litigation, (b) Advice and counsel to state agencies, and (c) 
Contract review. 

A. Litigation 

The Division represents state officers and agencies at all stages of 
litigation involving contracts. 

Chapter 258 of the General Laws is, for the most part, the controlling 
statute. Essentially, it is mandatory that all actions against the Com- 
monwealth be brought in Suffolk County if the amount claimed exceeds 
$2,000.00. The cases are tried without a jury and, almost universally, are 
referred to a master for hearing. 

At present, there are 235 active cases in the Division. Forty-one cases 
were closed out this year. 

These cases involve state highway, building or public work construc- 
tion claims. Most of these cases involve contract or specification in- 
terpretation and entail extensive preparation and investigation. Discov- 



8 P.D. 12 

ery, principally depositions and interrogatories, are mandated on all 
cases. Consultation with engineers and architects is routine in every in- 
stance. Trials are frequently lengthy, because of the complexity of is- 
sues and the number of parties involved. 

The general economic picture has generated litigation in contesting the 
award of contracts, resulting in many more allegations of failure to meet 
public bidding requirements. There has been an increase in suits in 
which preliminary injunctive relief is sought. 

The Contracts Division has intensified its opposition to the issuance 
of preliminary, or temporary, injunctive relief against the Common- 
wealth, its agencies and officers. The allowance of such relief would 
delay normal contract procedure and would result in increased costs. 

To date, we have succeeded in defeating all attempts at securing in- 
junctive relief. 

B. Advice and Counsel to State Agencies 

Every day, the Division receives requests for assistance from state 
agencies and officials. Their problems involve formation of contracts, 
performance of contracts, bidding procedures, bid protests, contract in- 
terpretation, and a myriad of other matters. 

The economy has also had its effect on bids and bidding procedures in 
the State Purchasing Agent's office. All materials, supplies, and equip- 
ment purchased by the state (except military and legislative) must be ad- 
vertised, bid, and awarded by the Purchasing Agent. We receive, each 
week, new requests for assistance in purchasing matters. Economic 
conditions have heightened competition. Members of the Division coun- 
sel the Purchasing Agent and his staff, interpret regulations, and attend 
formal protest hearings. 

We also have an equivalent relationship with the Department of Pub- 
lic Works, Metropolitan District Commission, Bureau of Building Con- 
struction, Group Insurance Commission, Secretary of Transportation, 
Regional Community Colleges, Data Processing Bureau, Mental 
Health, Youth Services, and Water Resources. 

C. Contract Review 

We review all state contracts, leases, and bonds submitted to us by 
state agencies. During the fiscal year we approved as to form a total of 
3,864 such contracts. In 371 cases, we rejected the documents and ap- 
proved them when the deficiencies were eliminated. 

All contracts are logged in and out and a detailed record is kept. 

The monthly count for the fiscal year was: 

July, 1974 397 

August 416 

September 280 

October 244 

November 366 

December 215 



P.D. 12 



January, 1975 1% 

February 404 

March 144 

April 235 

May 367 

June 600 



3,864 

Contracts are assigned to the attorneys in rotation. The average con- 
tract is approved within forty-eight hours of its arrival in the Division. 

Eminent Domain Division 

The major function of the Eminent Domain Division is the representa- 
tion of the Commonwealth in the defense of petitions for the assessment 
of damages resulting from land takings by eminent domain. The Com- 
monwealth acquires land for a variety of purposes, including rights of 
way for roads, land for State Colleges, land for recreation and park pur- 
poses, land for flood control and land for easements. The Division deals 
primarily with the Department of Public Works, the Metropolitan Dis- 
trict Commission, the Department of Environmental Affairs, the State 
Colleges and the University of Massachusetts. 

Chapter 79 of the General Laws prescribes the procedure for eminent 
domain proceedings. Under Chapter 79, when property is taken, the tak- 
ing agency makes an offer of settlement known as a Pro Tanto, which 
makes available to the owners an amount the taking agency feels is fair 
and reasonable, but reserves to the owners the right to proceed through 
the courts to recover more money. In years past, during the road build- 
ing boom of the fifties and sixties, land damage matters caused conges- 
tion in the civil sessions of the Superior Court. Special land damage ses- 
sions were set up to accommodate the trial of these cases and it was the 
practice to refer cases to auditors for their findings. The auditor system 
was not entirely satisfactory because too many cases previously tried to 
auditors were retried to juries. In 1973, the Legislature passed Section 
22 of Chapter 79 which provides for the trial of land damage matters be- 
fore a judge in the Superior Court jury waived session in the first in- 
stance. Either party may reserve their right to jury trial by so filing 
within ten days of a judge's finding. A trial by jury may be had first only 
if both parties file waivers of their right to a trial before a judge. The 
statute also requires the court to make subsidiary findings of fact when 
the case is heard before a judge. 

It has been the practice of our Division to try all our matters in accord 
with Section 22 before a Justice in a jury waived session. We have 
found, in most instances, it is not necessary to retry the case because 
the findings usually contain a clear statement of subsidiary facts which 
support the decision. Section 22 appears to be a vast improvement over 
the auditor system and a means of reducing the number of land damage 
cases requiring a jury trial. 



10 P.D. 12 

The Eminent Domain Division, with the assistance of an adminis- 
trator on loan or on detail from the Department of Public Works, also 
collects rent in occupied buildings situated on parcels taken by eminent 
domain. 

The Division consists of a Chief, ten trial attorneys, five secretaries, 
three investigators, one legal engineer, one rent administrator and one 
administrative clerk. In addition to the trial of land damage matters, the 
Division has the responsibility of reviewing petitions to register land 
filed in the Land Court to determine whether the Commonwealth or any 
of its agencies or departments has, or may have, an interest which may 
be affected by the petition. 

Rental agreements, contracts, deeds and documents relating to land 
under the control of any of the state's departments or agencies find their 
way to the Eminent Domain Division to be approved as to form. It is 
also the function of the Division to make itself available for consultation 
and the rendering of advice in connection with the Commonwealth's 
problems relating to land. 

July I, 1974 through June 31, 1975 

Rental Receipts $106,385.00 

Land Court cases received 149 

Land Court cases closed or withdrawn 146 

Land Damage cases closed by trial or settlement 165 

Cases pending July 1 , 1975 

Land Damage cases 885 

Land Court cases 184 

Rent cases 478 



TOTAL: 1,547 



Employment Security Division 

The Employment Security Division works closely with the Mas- 
sachusetts Division of Employment Security. It prosecutes employers 
who are delinquent in paying 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 ending June 30, 1975, 1,$35 cases were handled 
by this Division. 1,149 cases were on hand at the start of the year and 
389 new cases were received during the year, of which 96 were employer 
tax cases, 283 were fraudulent claims cases, 2 were appeals to the Su- 
preme Judicial Court, and 8 were court actions brought by or against the 
Director. 

312 cases were closed during the fiscal year, of which 152 were em- 
ployer tax cases, 156 were fraudulent claims cases, and 4 were court ac- 
tions brought by or against the Director of D.E.S., leaving a balance of 
1,223 cases on hand at the end of the fiscal year. Monies collected to- 



P.D. 12 11 



taled $396,527.88 from employer tax cases and $174,550.50 from the 
fraudulent claims cases, making a total recovery of $571,078.38 for the 
Commonwealth. 

The Division is charged with the duty of pursuing those individuals 
found not complying with the Employment Security Law. During this 
fiscal year the Division waged an energetic and forceful program in 
handling all cases referred to the Division for criminal prosecution. At 
the same time, the Attorney General's office has maintained a policy of 
giving the erring individual, corporation or business entity every oppor- 
tunity to make settlement out of court. Concentrated office conferences 
were conducted with the principals involved to determine whether or not 
criminal proceedings should be initiated. During this fiscal year the Di- 
vision brought 160 complaints against 123 employers, involving 1,112 
counts of tax evasion and totaling $852,126.91 in monies due the Com- 
monwealth. 77 complaints involving 1,302 counts of larceny were 
brought against 77 individuals found collecting unemployment benefits 
under fraudulent claims totaling $92,015.99 in monies taken from the 
Commonwealth. In addition, 1 complaint involving assault and battery 
brought by a Division of Employment Security employee against an in- 
dividual claiming unemployment benefits was represented by this Divi- 
sion; 1 complaint was brought as a criminal matter involving collusion 
between an employee of the Division of Employment Security and an 
individual claiming benefits, in which 4 counts of forgery, 4 counts of 
uttering, and 1 count of larceny were brought against an employee of the 
Division of Employment Security. 

At this time, the Employment Security Division is handling 2 actions 
pending in the Massachusetts Supreme Judicial Court. De Cordova and 
Dana Museum and Park vs. Director, D.E.S. raises the question of 
whether or not the staff of the school should be included within the 
coverage of M.G.L. C.151A, (the Employment Security Law), while 
Ellen E. Keough vs. Director, D.E.S. raises the question of whether an 
individual was available for work under Section 24 (b) of M.G.L. , c. 
151A, (the Employment Security Law) and thus available for unem- 
ployment benefits. Also pending in various courts of the Common- 
wealth, including the United States District Court are the following 10 
actions brought against the Director of the Division of Employment 
Security: 

Robert Calef vs. Eileen Lovett, Review Examiner and John Crosier, 
Director 
Refer to Gerald Harrison case. 

Raymond P. Cox vs. Nancy B. Beecher, et al and John Crosier, D.E.S. 
Petitioner contends he should have been appointed manager of the 
Worcester D.E.S. office. We are awaiting hearing on a motion to dis- 
miss. 

Maria De Jesus vs. John D. Crosier, Director 
Assigned to Administrative Division. 



12 P.D. 12 

Velia T. DiCesare, et al v. John D. Crosier, et al, D.E.S. 
Assigned to Administrative Division. 

Minnie S. Green PPA , Randolph E. Green vs. Commonwealth of Mas- 
sachusetts, D.E.S. 

Petitioners contend that their unemployment benefits were terminated 
in violation of the 14th Amendment's due process clause. The Divi- 
sion responds that the interviews given the claimants in the processing 
of their claims satisfy all due process requirements. 

Gerald Harrison, et al vs. A. Buchyn, et al, D.E.S. and Richard C. Gil- 
liland, D.E.S. 

Petitioner contends that a Board of Review decision, upholding on dif- 
ferent grounds a D.E.S. decision to cut off petitioner's benefits, vio- 
lates his 14th Amendment due process right to notice. The Division 
responds that upon an appeal to the Board of Review all issues in the 
matter are open and the hearing is not limited to the issue upon which 
the matter was initially decided and of which the petitioner has been 
notified. 

Linguistic Systems, Inc. vs. Richard C. Gilliland, D.E.S . and Harold J . 
Kearns, D.E.S. and Board of Review, D.E.S. and William E. Nichol- 
son, D.E.S. 

Petitioner asks the Court to order the Director to give a copy of the 
transcript of a hearing held on June 18, 1973. We permitted them to 
make a recording of our record. No further action has been taken in 
the case which is still pending in court. 

Malinda Malone vs. Richard C. Gilliland, D.E.S. and Thalia Felton, 
D.E.S. 
Same issues involved as in Minnie S. Green case. 

Massachusetts Bar Association and Berge C. Tashjian vs. Weaver As- 
sociates, Inc. and Francis Perfetto and Richard C. Gilliland, D.E.S., 
and Mary B. Newman, Exec. Office of Manpower Affairs 
Petitioner contends that only attorneys be allowed to represent parties 
in proceedings under Ch. 151 A. The statute reads ''agent or counsel." 
The Division as yet has not determined its position. 

Cambridge and Somerville Legal Services, Inc. vs. Massachusetts Divi- 
sion of Employment Security and John Crosier, D.E.S. 
Petitioner seeks to reverse their own decision to pay contributions to 
the Division under Sec. 14A of Ch. 151A. Had they elected the alter- 
native reimbursements, they would have saved approximately $2,500. 
The Division contends that such an election may not be reversed. 

During the month of December 1975, this Division brought approxi- 
mately 55 criminal complaints against individuals found fraudulently 
collecting unemployment benefits while employed under the C.E.T.A. 
program (Comprehensive Employment Training Act), charging them 
with larceny of some $45,000. At present, trials are being held in these 
matters. 



P.D. 12 13 



Industrial Accidents Division 

The Industrial Accidents Division serves as legal counsel to the 
Commonwealth in all workmen's compensation cases involving state 
employees. Pursuant to G.L. c.l52. §69A, the Attorney General must 
approve all payments of compensation benefits and disbursements for 
related medical and hospital expenses in compensable cases. In con- 
tested cases this Division represents the Commonwealth before the In- 
dustrial Accident Board and in appellate matters before the Superior 
Court and the Supreme Judicial Court. 

There were 9,639 First Reports of Injury filed during the last fiscal 
year for state employees with the Division of Industrial Accidents, an 
increase of 149 over the previous fiscal year. Of the lost time disability 
cases, this Division reviewed and approved 1,407 new claims for com- 
pensation, and 120 claims for resumption of compensation. In addition 
to the foregoing, the Division worked on and disposed of 88 claims by 
lump sum agreements and 39 by payments without prejudice. 

This Division appeared for the Commonwealth on 610 formal assign- 
ments at the Industrial Accident Board and in the Courts on Appellate 
matters. In addition to evaluating new cases, this Division continually 
reviews the accepted cases, that is those cases which require weekly 
payments of compensation, and brings them up-to-date medically for 
further evaluation and determination before a Member of the Industrial 
Accident Board. 

Total disbursements by the Commonwealth for state employees' in- 
dustrial accident claims, including accepted cases, Board and Court de- 
cisions and lump sum settlements, for the period July 1, 1974 to June 30, 
1975, were as follows: 

General Appropriation 

(Appropriated to the Division of Industrial Accidents) 

Incapacity Compensation $2,865,176.02 

Medical Expenses 884,806.33 

Total Disbursements $3,749,982.35 

Metropolitan District Commission 

(Appropriated to M. D. C.) 

Incapacity Compensation $306,032.18 

Medical Expenses 88,288.23 

Total Disbursements $394,320.41 

In its capacity as custodian of the second injury fund under Section 65 
of Chapter 152, as most recently amended by Chapter 855 of the Acts of 
1973. the Division represents the Commonwealth before the Industrial 
Accident Board in petitions filed by insurers and self-insurers for reim- 
bursement out of this fund (now referred to as the "second injury 
fund"). 



14 P.D. 12 

In accordance with the provisions of the statute, insurers and self- 
insurers are required to make payments into this account in fatal indus- 
trial injury cases. This Division has the responsibility for enforcing this 
obligation requiring the staff to appear before the Industrial Accident 
Board in such cases, and for meeting with insurers' counsel to adjust, 
usually by negotiation, payments in cases where the issue of liability has 
been in question or compromised. 

At the end of this fiscal year the General Fund (Section 65 Fund) 
showed an unencumbered balance of $881,775.13. There were receipts 
to this fund in the amount of $165,558.51, and payments made out of the 
fund in the amount of $214,002.22. 

Pursuant to Section 11 A (Acts of 1950, C.639, as amended), the Chief 
of this Division represents the Attorney General as a sitting member of 
the Civil Defense Claims Board. This involved reviewing and acting 
upon claims awarding compensation to unpaid civil defense volunteers 
who were injured while in the course of their volunteer duties. 

This Division also represents the Industrial Accident Rehabilitation 
Board. When an insurer refuses to pay for rehabilitative training for an 
injured employee this Division presents the case to the Industrial Acci- 
dent Board on behalf of the Industrial Accident Rehabilitation Board. 



Public Charities Division 

There are four attorneys and five clerks on the staff of the Public 
Charities Division. 

During the fiscal period 1974-1975, this Division reviewed the follow- 
ing matters relating to trusts and estates in which there is either a gen- 
eral or specific charitable interest: 

Trustee Accounts 1,728 

Probate of Wills 691 

Executor Accounts 397 

Administrators and Miscellaneous 91 

Other General Petitions, Miscellaneous 658 

3,565 

There were a total of 82 estates in Public Administration matters 
which escheated a total of $198,676.46 to the Commonwealth during the 
fiscal period of July 1, 1974 through June 30, 1975. 

Annual reports under General Laws, C.12, §8F totalled 4,812 and 
were recorded and filed. Seven hundred and sixty-three organizations 
applied for Certificates of Registration to solicit funds from the public. 

The Division handled a number of petitions for reformation of or for 
instructions relating to charitable trusts under wills. Many petitions were 
generated by the Federal Tax Reform Act upon charitable foundations, 
which requires them to distribute a percentage of their investment return 
or be subject to a tax on undistributed income. In the Urann Foundation 



P.D. 12 15 



case we assented to a judgment which allowed the Foundation to dis- 
tribute shares of United Cape Cod Cranberry Co. to avoid the tax on 
undistributed income. We took the same position for the same reason in 
the reformation petitions of the Charles A. King will, the Robert Henry 
Life trust for educational benefits, and the Jennie Sears McShane trust 
tor the benefit of the residents of Barnstable. 

This Division assented to several petitions to increase the income of 
life beneficiaries under the doctrine of the Kahn decision. These cases 
included among others the Samuel A. Vanner Trust, the Trust under the 
will of Melitta Coutelle and the Trust under the will of Annie E. Hardie. 
For the Madeline Gould Boyle s trust, among others, the Attorney Gen- 
eral assented to judgments with the prior assent of the income bene- 
ficiary reforming trust instruments to create uni-trusts and annuity trusts 
to preserve intact charitable remainder deductions of Federal Estate Tax 
Returns, 

Many dissolutions of charitable corporations along with an appro- 
priate cy-pres of the charities' assets were decreed by the Supreme Judi- 
cial Court. The Cambridge Junior College was dissolved with its assets 
distributed to other educational institutions. The East Boston Unitarian 
Society was dissolved with its assets distributed to the Unitarian Uni- 
versalist Association, Wright Home for Young Women. Among other 
dissolutions were The Association for the Work of Mercy in the Diocese 
of Massachusetts and the Robinson Genealogical Society. 

In a case involving the Trust under the will of Emily Terry Mabon, 
with Smith College the income beneficiary, the Attorney General as- 
sented to a judgment whereby the entire principal of the trust was turned 
over to Smith College as an endowment fund, income to be used for 
scholarships for worthy and needy students. 

In the Charles F. Bacon case, the Attorney General successfully 
supported before the Probate and Supreme Judicial Court the Salvation 
Army's claim to the remainder of a trust. 

Torts, Claims and Collections Division 

This Division is divided into three sections: (1) Torts, (2) Collections 
and (3) Violent Crimes. 

The Torts section defends all officers and employees of the several 
state agencies against whom tort claims or actions may be brought. The 
Commonwealth is also defended in those actions involving statutory lia- 
bility. 

These tort cases involve motor vehicle accidents, road defects, assault 
and battery, false imprisonment, libel and slander, malpractice, etc. The 
number of claims or actions received for fiscal 1974-1975 are not avail- 
able in their entirety but from April, 1975 to June 30, 1975 there were 
219 tort claims received and files opened thereon. 

The amount paid to claimants on tort cases between July I. 1974 and 
June 30, 1975 was $179,329.44. 



16 P.D. 12 

The Collections section has the responsibility of collecting on behalf 
of the Commonwealth sums of money owed to the Commonwealth be- 
cause of automobile accidents, college loans, charges for care in state 
hospitals, etc. Recovery on unclaimed bank books under the provision 
of G.L. C.168, §31 also comes within the province of the Collections Di- 
vision. 

A fiscal report of the Collections Division follows. 

The number of claims under the Violent Crime Act, G.L. C.258A and 
the number of awards continue to increase. The number of claims re- 
ceived during fiscal 1974-1975 are not totally available, but from April 1, 
1975 to June 30, 1975 we received 159 claims. 

In fiscal year 1974-1975 the Treasurer received 213 awards from the 
various district courts and paid 198 of these awards which totalled 
$987,997.41. 

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







# of Claims 


Departments 


Amount Collected 


Processed 


Mental Health 


$120,443.45 


27 


Public Health 


201.834.75 


288 


Public Works 


83.124.01 


158 


Metropolitan Dist. Commission 


7,890.03 


35 


Education 


9,076.29 


145 


State College 


6.515.43 


107 


Secretary of State 


612.00 


11 


Corrections Department 


325.03 


6 


Youth Services 


168.62 


3 


Public Welfare 


71.76 


6 


Dept. of Agriculture 


1 .400.00 


1 


Administration and Finance 


7,979.53 


2 


Industrial Ace. Division 


33,555.65 


22 


Corporations and Taxation 


980.98 


2 


Treasury Department 


615.00 


3 


Retirement Board 


122.83 


1 


Natural Resources 


114.23 


4 


Public Safety 


1,713.57 


6 


State Racing Commission 


2,545.00 


1 


Massachusetts State Lottery Commission 


1,500.00 


1 


TOTALS 


$480.5«8.16 


829 



Collected Fiscal Year, July 1, 1974 to 

June 30. 1975 — Unclaimed Bank Books 

PROBATE COURT $230,824.50 



$711,412.60 



NOTE: 446 - Number of completed claims 

1,390- Number of claims referred to Collections Section by the various 

departments of the Commonwealth 
1,953 - Number of claims disposed of as being uncollectable 



P.D. 12 17 

II. CRIMINAL BUREAU 

For the first half of fiscal 1974-1975, the Criminal Division operated 
on three levels of specification: Trials, Appeals and Organized Crime. 
In January of 1975, these sections along with the Drug Abuse Division 
were re-organized into the Criminal Bureau. 

The Trial Section, whose primary function is directed towards the in- 
vestigation and prosecution of criminal activities within the Common- 
wealth, instituted a number of inquiries into matters of wide-spread con- 
cern among law enforcement authorities. In a continuing effort to com- 
bat welfare frauds, indictments were obtained for larceny against a cor- 
poration which managed nursing homes. It is alleged that this corpora- 
tion submitted false representations to the Nursing Home Rate Setting 
Commission which led to increased rates. In a related matter, investiga- 
tions by attorneys from the Bureau led to the resignations of two Rate 
Setting commissioners, in one instance, because of a conflict of interest 
and in the other, because of the lending of money at a usurious rate. Fi- 
nally, two individuals were convicted in the District Court for larceny 
from the Commonwealth totaling over forty thousand dollars. Both 
cases involved a similar scheme of double billing, i.e., to the Common- 
wealth and to patients at various nursing homes. The defendants each 
received a suspended sentence, were placed on probation, fined, and or- 
dered to pay restitution. 

As indicated by last year's report, state detectives and investigator 
units assigned to the Bureau have examined irregularities in certain 
banking institutions. As a result of this inquiry, embezzlement schemes 
have been uncovered which disclose that millions of dollars have been 
siphoned off from accounts at a Brighton Savings Bank. Various offi- 
cials of that bank have now been tried and convicted for their participa- 
tion on a scheme involving collateral loans for which there was in fact no 
collateral. In one instance a five year sentence to M.C.I. Concord was 
imposed. The cases are now on appeal. 

Also in the white collar crime area. Bureau attorneys were responsible 
for indictments against two state health inspectors for accepting bribes, 
a former employee of I.B.M. for conspiracy to violate the Massa- 
chusetts Trade Secrets Acts, and the operators of a halfway house for 
fraudulently negotiating approximately five thousand dollars of welfare 
checks for welfare recipients no longer living at their house. 

Toward the end of the fiscal year investigations were begun into al- 
leged violations of the campaign laws by various officials of the Boston 
Fire Department. A presentation to the Suffolk County Grand Jury is 
anticipated. 

The Organized Crime Section continued to be involved in the collec- 
tion and dissemination of intelligence information and in the investiga- 
tion and prosecution of criminal offenses committed by members of or- 
ganized crime. Under a federal grant, a Technical Assistance Center is 
maintained which is a central repository for highly sophisticated equip- 
ment to be used in combating organized crime. This equipment has been 



18 P.D. 12 

made available to local police departments and district attorneys for use 
in investigations. In connection with this program, the Organized Crime 
Section has conducted an Organized Crime Training Program for local 
police held at the Massachusetts State Police Academy in Framingham. 

The Appellate Section continued this year to handle the very high 
case load which has resulted from the explosion of litigation in the crim- 
inal law field. The bulk of these cases consisted of either civil rights 
suits by residents of the Commonwealth's correctional institutions or 
post-conviction claims made in state and federal courts by persons con- 
victed of criminal activity. Appellate Section attorneys also appeared in 
a number of interlocutory appeals and petitions for the exercise of the 
Supreme Judicial Court's superintendency power. 

The prison civil rights suits consisted of claims for injunctive relief 
and damages against correctional officials. Noteworthy among them was 
a suit in the United States District Court which may result in substantial 
alterations to the physical plant at the Massachusetts Correctional In- 
stitution at Bridgewater. Another suit, in the state court, may produce a 
different method of providing protective custody to those residents of 
the correctional system who are unable to associate with the general 
population. The Appellate Section continued to enjoy a high degree of 
success in defending these civil rights suits; to date, no monetary dam- 
ages have been awarded against any correctional official. The Appellate 
Section continues to advise the Department of Corrections concerning 
the requirements of decisions rendered by the United States Supreme 
Court and by the Massachusetts Supreme Judicial Court. 

The Appellate Section handles post-conviction cases which were ini- 
tially prosecuted by the several District Attorneys, as well as the Attor- 
ney General. Noteworthy among them were the so-called "small loans 
cases," which were tried in 1967-1969. A decision favorable to the 
Commonwealth has been secured in the United States Court of Appeals 
and it may be that these cases can be finally laid to rest. A major murder 
case, implicating organized crime figures, which was tried in 1968, is 
also progressing in the United States District Court, and a decision is 
expected shortly. 

The Appellate Section represented the Commonwealth before the 
United States Supreme Court in a case involving the constitutionality of 
the Massachusetts two-tier criminal trial system. Attorneys from the 
Appellate Section argued successfully that the Court did not have juris- 
diction to consider this matter. The Appellate Section also persuaded 
the Supreme Court to grant the Commonwealth's petition for certiorari 
in a case dealing with the obligations of a trial judge to inquire of poten- 
tial jurors concerning racial prejudice. The High Court's ruling in this 
matter will determine whether several defendants convicted of serious 
crimes in the Superior Court will have to be retried. The case is 
scheduled for argument in the fall. 

Appellate Section attorneys have continued to perform the many 
other duties required of them on a routine basis. For example, they ad- 



P.D. 12 19 

vise the Governor as to the adequacy of demands for the return of fugi- 
tives from justice — both those whom Massachusetts seeks to have re- 
turned from other states and those whom other states seek to have re- 
turned from Massachusetts. Appellate Section attorneys prepare for the 
use of police officers throughout the Commonwealth an annual summary 
of changes made in the criminal law. They furnish advice concerning the 
securing of arrest and search warrants, and assist in the preparation of 
various legal documents needed for these matters. 

The Drug Abuse Division has three primary functions: the operation 
of the Drug Education Seminars which are outlined below, the Drug In- 
telligence Unit for which there is a detailed description attached, and the 
speaker program which we have greatly expanded during 1975. 

The Division has several people who are available for speaking en- 
gagements. Many requests for speakers are received from various seg- 
ments of the community, i.e. civil groups, school systems, and profes- 
sional organizations. The majority of these requests entail commitments 
during the evening hours, and quite often members of the Drug Abuse 
Division spend fifteen to twenty hours a week of their own time fulfilling 
these obligations. 

The Attorney General's Drug Education Seminar is a two-week pro- 
gram. It is geared primarily for police but also serves other professionals 
working in drug-related fields. 

During 1975 the Drug Abuse Division held ten two-week seminars 
throughout the Commonwealth from which approximately three hundred 
and fifty persons graduated. These seminars were held in conjunction 
with Massachusetts State Colleges, all of whom agreed to award three 
college credits to those graduating from the course. 

We have been most fortunate in obtaining the services of experts in 
various drug-related fields. These individuals have agreed to donate 
their time to lecture and hold discussion groups on a number of topics 
relating to drug abuse. These individuals are from a wide range of agen- 
cies and institutions, including the Mayor's Office, the Treasury De- 
partment, United States Customs Bureau, the Department of Public 
Safety, the Department of Mental Health, the Drug Enforcement Ad- 
ministration, Boston Police Department, representatives from a number 
of hospitals and detoxification units, and counselors from several drug 
rehabilitation programs and halfway houses. 

These lectures and discussions cover many areas, such as the psy- 
chological, pharmocological and social aspects of drug abuse, current 
legislation affecting this area, present state and federal statutes, infor- 
mant development, search and seizure, organized crime involvement, 
local drug problems, and the treatment and rehabilitation of drug- 
dependent persons as well as different preventative techniques. 

The schools at which the Drug Abuse Division has held seminars dur- 
ing 1975 and a sample schedule of this course follows: 
Berkshire Community College 
Northeastern Essex Community College 



20 P.D. 12 



Massachusetts Maritime Academy 
Quinsigamond Community College 
Framingham State College 
Quincy Junior College 
Greenfield Community College 
Fitchburg State College 
Holyoke Community College 
Massasoit Community College 
Bunker Hill Community College 

ATTORNEY GENERAL FRANCIS X. BELLOTTI'S 
DRUG ABUSE SEMINAR 

MASSASOIT COMMUNITY COLLEGE 

IN CONJUNCTION WITH 

BROCKTON POLICE ACADEMY 

DEC. 8-19, 1975 

MONDAY, DECEMBER 8 

Welcome & Registration 

History of Drug Traffic Kevin Boyle 

Chapter 1 1 IB-New Approach to Bruce Tywon 

Public Drunkeness Assistant A.G. 

Lunch 

Alcoholism Intervention and David Mulligan, Director 

Detoxification Alcoholism Intervention Center 

Undercover Operations Andre Lavoie, Mass. State Police 

TUESDAY, DECEMBER 9 

9-12:00 Alcoholism James Logan, Director, Madeline Murphy. 

Exec. Sec. - Mayor's Trouble Employees Program 

12-1:00 Lunch 

1-4:00 Police Practices & Techniques Lt. Edward Connolly 

Boston P.D. 

WEDNESDAY, DECEMBER 10 

9-11:00 Enforcement Problems — Corpl. Francis G. Lounsbury 

Handling Informants Mass. State Police 

11-12:00 Emergency Room Procedures Dr. Stam, Head of Emergency, 

Cardinal Gushing Hospital 

12-1:00 Lunch 

1-4:00 Values Clarification — John Mahoney, Social Health 

Theory and Techniques Coord., Quincy Public Schools 

THURSDAY, DECEMBER 11 

9-12:00 Probable Cause — Search Bernard Manning 

& Seizure Assistant A.G. 

Recent Supreme Court Decisions 



9-9:30 


9:30-11:00 


11-12:00 


12:00-1:00 


1-2:30 


2:30-4:00 



P.D. 12 



21 



12-1:00 
1-4:00 

MO^'DAY, 
9-10:00 

10-12:00 

12:00-1:00 
1-4:00 



Lunch 

Controlled Substance Act 
Drug Intelligence Unit 

DECEMBER 15 

Local Drug Problems 



Brian F. Gilligan, Assistant 
A.G., Chief, Drug Abuse Division 



Sgt. John DeBassio 
Brockton P.D. 

Mental Health — Drug Abuse Dr. David Swenson 

Review & Projections Psychiatrist, Dept. of Mental Health 

Lunch 

Marijuana & Hashish: Anna Finnerty, Senior Chemist 

Identification, Sources, Use U.S. Customs 

& Qualities; Heroin 



TUESDAY, DECEMBER 16 



Anna Finnerty 



Richard Rafferty 
Assistant A.G. 



9-12:00 Amphetamines & Barbituates. LSD 

History, Effects, & Current Status 

12-1:00 Lunch 

1-2:30 Court Procedure — Presentation of 

Evidence 

2:30-4:00 Handling of Weapons In Special Agent Thomas Horan 

Relation To Drug Arrests Alcohol, Tobacco & Firearms Bur. 

WEDNESDAY, DECEMBER 17 

9-12:00 Techniques, Attitudes & Philosophy Rev. Henry Kane 

of Drug treatment Mayors Coord. Council on Drug Abuse 

12-1:00 Lunch 

1-2:30 School Drug Policy — Prevailing Attorney Ernest DeSimone 

Regulations & Attitudes Drug Abuse Division 

2:30-4:00 Drug Rehabilitation — Survival Counselor Linda Stice 

House 



Capt. James Halloran 
Mass. State Police 



THURSDAY, DECEMBER 18 

9:00-10:30 Diversion Investigation Unit 

10:30-11:00 Examination 
11:30-12:00 Critique 
12:30 Graduation 

The Drug Intelligence Unit has been in operation since April of 1975. 
However, from April through June it was not functioning fully, having 
only two officers assigned to it during that particular period. 

As of July 1, 1975 the Unit will be in complete operation with seven 
police officers assigned to it full-time. Corporal Francis Lounsbury, the 
Director of the Drug Intelligence Unit, has divided the Commonwealth 
into seven areas comprised of two hundred and three cities and towns. 
Each agent covers one designated area and makes a personal visit to 
each department in the area at least once every two weeks. 



22 P.D. 12 

The Unit has adopted a very complex filing system based on one de- 
veloped by the Michigan State Police, which is known as MIN, the 
Michigan Intelligence Network. This system includes filing of suspects 
by name, alias, associates, hang-outs, and locales. It also involves the 
filing of registration and telephone numbers, physical descriptions and 
occupations. The office staff notifies by mail all departments and agen- 
cies concerning up-to-date information in their areas. 

Since the Unit's inception the agents have contacted and/or cultivated 
many informants who have supplied them with valuable information re- 
garding both the illegal traffic of narcotics and other criminal activities. 

A toll free WATS line has been installed and is utilized by police of- 
ficers and citizens calling anonymously with information regarding nar- 
cotic traffic. 

The Drug Intelligence Unit is contacted daily by local, state and other 
enforcement agencies requesting information on suspected drug traffic 
and dealers. We also offer them aid ranging from assisting in investiga- 
tions to legal advice in the preparation of affidavits in support of search 
warrants. An average of ten to twenty of these requests are received 
daily. 

The information and assistance supplied by the field agents of the 
Drug Intelligence Unit have resulted in approximately eighty arrests and 
the confiscation of narcotics with a street value of nearly seven hundred 
thousand dollars. 

III. GOVERNMENT BUREAU 

Under the new administration, the function of several divisions were 
brought together as a new bureau, the Government Bureau. Included 
are the Administrative Division, Opinions of the Attorney General, 
By-Laws, as well as a new Affirmative Litigation Division created in the 
latter part of the fiscal year. 

The Administrative Division continues to be responsible for defending 
the Commonwealth and its various agencies in defensive litigation. State 
and Federal, involving issues of public, administrative, and constitu- 
tional law. This defensive litigation continues to increase in volume. The 
Division defended more than 700 new lawsuits during the year, a greater 
number than ever before. This litigation spans a broad range of govern- 
ment activity. For example, it included defense of (1) The Department 
of Administration and Finance, in cases challenging state fiscal and per- 
sonnel policies, (2) the Civil Service Commission in its adjudication of 
personnel disputes in state and municipal employment, (3) the Depart- 
ment of Public Utilities' rate determinations, (4) the Governor's exer- 
cises of executive authority, (5) the Department of Public Welfare, 
whose changes in policies and programs have been subjected to an un- 
precedented number of broad class action challenges during the year, (6) 
the Rate Setting Commission's rate determinations, covering public 
reimbursement for nursing homes and hospitals participating in the fed- 



P.D. 12 23 



eral Medicaid program, and (7) the Department of Corporations and 
Taxation, when its enforcement o\'^ the tax laws are subjected to chal- 
lenge by affected taxpayers. The breadth of this responsibility inevitably 
brings the Division into important areas of economic and social concern, 
with scores of cases each year raising public questions substantially af- 
fecting the state and its citizens. 

Examples of such litigation during the year include a defense of the 
state's mandatory retirement statute for uniformed State Police officers. 
This case is now before the United States Supreme Court for decision, 
and whatever its final outcome, the case will affect all mandatory re- 
tirement laws throughout the country. Defending the statute against a 
claim of age discrimination, the Division's lawyers argued that manda- 
tory retirement laws, together with their related pension provisions, are 
a rational and humane means for preserving efficiency in state employ- 
ment while at the same time rewarding those who have served the state 
for many years. 

The Division devoted substantial resources to a defense of the various 
changes in the Department of Public Welfare policy necessitated by the 
fiscal crisis that occurred during the year. Each of the spending cuts, 
whether occasioned through regulation or action by the Legislature, 
prompted a legal challenge in either federal or state court. Each of these 
challenges involved a class action, usually raising constitutional ques- 
tions of equal protection and due process. In every one of the class ac- 
tions brought, the court ultimately held in favor of the Department of 
Public Welfare, upholding the change in policy. 

The Division was also successful in defending a number of 
groundbreaking regulatory acions taken by recently appointed Commis- 
sioners of various agencies. For example, the Commissioner of Banks 
was challenged in court during the year for requiring that all major banks 
submit information that would assist in determining the extent to which 
the practice of redlining (refusing to give mortgages in disfavored geo- 
graphical areas) was occurring in various urban areas. The Division's 
lawyers successfully thwarted an attempt by the banks to enjoin this 
new directive, and ultimately the Division helped negotiate a settlement 
favorable to the Commissioner. 

The Division has continued to carry on the dual function of represent- 
ing all 26 boards of registration in various professions in court litigation, 
while at the same time advising the boards in their conduct of adjucia- 
tory proceedings for the discipline of members of the profession. Be- 
cause these boards of registration have no legal staff of their own, this 
daily process of advice and assistance consumes a significant part of the 
Division's resources. The Division is currently in the process of de- 
veloping a set of rules of procedure, so that the proceedings before all 
boards may be made uniform. This project also includes the preparation 
of an extensive manual illustrating the use of the rules, together with a 
set of model forms for use by the boards. 

During the year, the Division undertook a program of administrative 
improvement designed to modernize its operation. In addition, extensive 



24 P.D. 12 



law files and form files were established to permit lawyers to retrieve 
papers from past litigation more easily for use in current cases. Part of 
this administrative project involved liquidation of a backlog of cases, 
numbering more than a thousand, some of them dating back many years. 

An important new facet of the Division is its sponsorship of an Attor- 
ney General's Law Clinic in cooperation with Boston College Law 
School. Under this program, 15 law students receive substantial 
academic credit for participating in the litigation of the Division, super- 
vised by a member of the Boston College Law faculty and lawyers 
within the Division. This program includes a series of seminars on vari- 
ous phases of the lawyering process. 

A key effort in the Government Bureau during the year involved the 
reorganization of the process of preparing opinions of the Attorney 
General. Efforts were undertaken to eliminate the backlog of opinion 
requests, promulgate guidelines outlining the appropriate occasions for 
opinions, and shorten the period of response to new opinion requests. 
During the latter part of the fiscal year, lawyers in the Bureau suc- 
ceeded, through a crash effort, in sharply reducing the backlog of 120 
general opinion requests awaiting answer, some of them since 1970. In 
reviewing these requests, it was determined that many were sought by 
state agencies without their having first sought the assistance of lawyers 
in the executive branch. Many of the requests involved minor questions 
not requiring the formal opinion of the Attorney General. Consequently, 
all state agencies have been informed that opinion requests must raise 
significant questions of law and must be accompanied, where possible, 
by a legal memorandum outlining the views of the legal office of the 
agency making the request. It is hoped that with these efforts the 
number of opinions can be decreased, the promptness of reply thereby 
improved, and the quality of the opinions maintained at a consistently 
high level. 

During the entire fiscal year, 76 official opinions were rendered. All 
other opinion requests were either returned without answer or disposed 
of by some other means short of a formal opinion. Among the more sig- 
nificant opinions was a request by the Secretary of State concerning the 
registration of lobbyists. The opinion clarifies those persons covered by 
the new registration statute. The Attorney General also found that the 
statute did not require that voluntary associations divulge their entire 
membership lists, since such a requirement would violate both the 
United States and Massachusetts Constitutions. 

An opinion was rendered to the Director of Campaign and Political 
Finance dealing with the question of whether the release of the names of 
persons who had failed to file campaign reports would be lawful. This 
opinion required a balancing of the privacy rights of individuals with the 
public's right to such information. The Attorney General determined 
that the release of these names would not violate principles of funda- 
mental fairness to the named individuals. 



P.D. 12 25 

Another opinion involved an issue of impoundment of state funds. 
The Attorney General responded to a request by the House of Rep- 
resentatives, concluding that the Secretary of Manpower Affairs could 
not refuse to expend funds which had been appropriated by the General 
Court for the express purpose of prompting tourism. This opinion un- 
derscores the importance of the separation of powers between the ex- 
ecutive and legislative branches. 

The Bureau devoted substantial resources to a zone of activities fal- 
ling between litigation and formal opinion writing. This involves day to 
day advice to various state agencies and public officials with the objec- 
tive of resolving legal problems before they reach the stage of a formal 
controversy requiring either litigation or an Attorney General's opinion. 
In this regard, the lawyers in the Bureau have spent a substantial 
amount of time with the Departments of Public Welfare and Mental 
Health. The Welfare Department is responsible for the largest single 
part of the state budget, and the Mental Health Department is the single 
largest state employer and is responsible as well for maintenance of a 
number of public hospital facilities. 

The By-Laws Division is responsible for reviewing all newly-enacted 
municipal by-laws to determine whether they conform with statutory 
and constitutional limitations. During the year approximately 1,800 by- 
law submissions were reviewed, with a roughly equal division in number 
between general by-laws and zoning by-laws. In each of these two 
categories about five percent of the submissions were disapproved for 
non-conformance with various legal requirements, the primary defect 
being a failure to follow statutorily mandated procedures in the adoption 
of the by-law. Another five percent of the submissions were disapproved 
in part. In this situation the objectionable language in the by-law is de- 
leted, and the remaining part of the by-law approved. The topics that 
consistently raised difficult questions of law during the year were (1) 
building moratoriums on multi-family housing, (2) dog leash laws, and 
(3) by-laws prohibiting consumption of alcoholic beverages in public. 

The Affirmative Litigation Division was created in an effort to assure 
that substantial resources were allocated to initiating litigation raising 
social and fiscal issues important to the Commonwealth. The first such 
lawsuit challenged the imposition of massive license fees by the Presi- 
dent on imported oil. These fees affected Massachusetts and other 
Northeastern states far more than any other area in the country. The 
Attorney General prevailed before the District of Columbia Circuit 
Court of Appeals in its argument that the President lacked authority to 
impose these license fees, and the case is currently before the United 
States Supreme Court. The outcome of this case will ultimately involve 
billions of dollars that have been collected by the federal government 
through the license fee system. 

Other litigation initiated by the Affirmative Litigation Division in- 
cludes an original action in the United States Supreme Court, together 
with the States of Maine and Vermont, seeking a return of income taxes 
collected by New Hampshire under a statute declared unconstitutional 



26 P.D. 12 

by the United States Supreme Court in March of 1975. Because Mas- 
sachusetts provided a tax credit to its citizens who had paid the New 
Hampshire tax, the Commonwealth argued to the Supreme Court that 
New Hampshire should return to Massachusetts all taxes improperly 
collected from Massachusetts residents working in New Hampshire. 

IV. PUBLIC PROTECTION BUREAU 

The Public Protection Bureau was one of four Bureaus established 
within the Department of the Attorney General on January 15, 1975. 
The Public Protection Bureau includes the Environmental Protection, 
the Consumer Protection and the Civil Rights Divisions. In the past, 
each of these Divisions had operated autonomously. By including these 
particular Divisions in one Bureau, the Attorney General made a sub- 
stantial commitment to these areas, ensured, to the extent possible, that 
their efforts were coordinated, and that each was an integral part of the 
affirmative litigation program of the Attorney General. 

In large measure, this Bureau is unique and experimental since it is 
designed to function as a public interest law firm on behalf of the citi- 
zens of the Commonwealth and is the only Bureau or effort of its kind in 
any Attorney General's office in this country. 

The activities of the Divisions within the Bureau are set forth 
hereinafter. 

Civil Rights Division 
JANUARY 15 - JULY 30, 1975 

Since January 15, the Civil Rights Division has been engaged in an 
attempt to broaden, restructure and define its scope and functions. As 
part of the Public Protection Bureau, the Division has engaged in three 
major kinds of activities in approximately ten substantive areas. In addi- 
tion to litigation, the Division has been involved in substantial non- 
litigation activity such as coordinating the law enforcement effort in 
Phase II of the Boston School Desegregation case and major administra- 
tive and legislative privacy initiatives. 

In general, the Civil Rights Division provides representation to state 
agencies in enforcement and affirmative action proceedings, and engages 
in independent activity in civil rights areas including education, privacy, 
employment, women's rights, health, voting, housing, public accommo- 
dations and criminal justice. The Division also has affiliations at the 
staff level with the Criminal History Systems Board, the Security and 
Privacy Council and the Governor's Commission on the Civil Rights of 
the Developmentally Disabled. 

The staff of the Division consists of a Division Chief and three staff 
attorneys, one of whom specializes in privacy matters and one of whom 
specializes in Women's Rights. This staff was not fully in place until 
April 1. 



P.D. 12 27 

The activities of the Division are set forth in detail in the liting which 
follows as Appendix A. In this narrative, the object will merely be to 
summarize and highlight some of the more important or illustrative as- 
pects of those activities. 

The Division presently has 44 cases in litigation. The majority of 
these are cases referred by the Massachusetts Commission Against Dis- 
crimination for enforcement, or involve representation of a state agency 
such as the Department of Education. They include important and sig- 
nificant cases such as the following: 

Representing the Board of Education in the remedial phase of the 
Boston School Desegregation case. 

Representing the Board of Education in further enforcement pro- 
ceedings in the Springfield Racial Imbalance case. 
Representing the Civil Service Commission in the remedial phase of 
the so-called police and firefighters' employment discrimination 
suits. 

Initiating the tlrst suit addressing the visitation rights of juvenile 
migrant workers in work camps. 

Representing two state agencies — the Department of Mental 
Health and the Department of Youth Services — faced with major 
"conditions" suits. 

Representing the MCAD in several cases raising novel and impor- 
tant procedural issues relative to its operations. 

Of 43 cases in active litigation as of July 30, 1975, the topical break- 
down was as follows: 



Education 
Women's Rights 


8 
10 


Migrant Workers 
Corrections 


1 

1 


Employment 
Housing 


10 
6 


Health 
Miscellaneous 


1 

5 


Privacy 


1 







In terms of non-litigation activity, the Division has been involved in 
the following kinds of matters: 

overseeing the law enforcement and prosecutorial functions in 
Phase Two of the Boston School Case. 

establishing a Women's Rights Office and developing liaisons with 
public and private groups. 

developing an affirmative action plan for the Department and re- 
viewing the civil rights aspects of cases in which other parts of the 
Department are involved. 

regulating the collection of personal information by the public and 
private sectors on individual citizens through legislation, opinions, 
testimony and advisory critiques prepared by this Division for the 
Attorney General. 

Finally, the Division has. in a short period of time, made substantial 
efforts to explore areas in which affirmative action — litigation or 
otherwise — by the Attorney General would be most appropriate and 



28 



P.D. 12 



have the most impact. Some of the areas being studied, investigated or 

acted upon include the following: 

employment practices regarding women of insurance and publishing 
companies. 

compliance by employers with state laws limiting requests for crim- 
inal history information on application forms. 

possible abuses or civil rights violations in human experimentation 
and drug research programs. 

the provision of service, credit or loan practices of several major 
companies or institutions to determine if there are "red-line" pat- 
terns or practices. 

the role of the Attorney General in criminal justice systems reform 
efforts. 



CIVIL RIGHTS DIVISION 

APPENDIX 

LIST OF ACTIVITIES 
JANUARY 15 - JULY 30, 1975 



I. LITIGATION 



EDUCATION 

Board of Education 

v. Springfield 
Morgan v. Kerrigan 
O'Dea V. Board of Education 
Kelley v. Board of Education 
Francis Chaisson v. 

School Committee 
Rosalie Chaisson v. 

School Committee 
Operation Exodus 
Clooney v. MCAD 

WOMEN'S RIGHTS 
Brief Originals v. MCAD 
Wheelock College v. MCAD 
Mass. Gas & Elec. v. MCAD 
Putnam v. Boston 
Beth Israel v. MCAD 
Pentucket v. MCAD 
Smith College v. MCAD 
LEE v. MCAD 
Flanagan v. Department of 

Corrections 
Grass Instruments v. MCAD 
N.E. National Bank v. MCAD 



Litigation 



SJC 



Enforcement 


Fed. Dist. Ct 


On Appeal 


First Circuit 


In Litigation 


Fed. Dist. Ct 


In Litigation 


Fed. Dist. Ct 


In Litigation 


Fed. Dist. Ct 


" (Spec. AAG) 


Suffolk 




Middlesex 


On Appeal 


SJC 


In Litigation 


Suffolk 


Consent Degree 


" 


Stipulation 


" 


In Litigation 


Essex 


Stipulation 


Hampshire 


" 


Middlesex 


In Ligitation 


Plymouth 


(Gov. Bur.) 




Stipulation 


Suffolk 


In Ligitation 


Suffolk 



P.D. 12 



29 



EMPLOYMENT 
NAACP V. Beecher 
Castro V. Beecher 
Scherer v. Boston 
DeJesus v. Crozier 
Jackson v. Sargent 
Electric Corp. of America 

V. MCAD 
Essex County Newspapers v. 

MCAD 
Construction Industries v. 



Consent Decree 



In Litigation 



Fed. Dist. Ct. 
Suffolk 

Middlesex 

Essex 



Salvucci 


" " 




Suffolk 


Liberty Mutual v. Stone 


" (Gov. 


Bur.) 


SJC 


DOC V. Waltham 


Administrative 
Proceeding 




MCAD 


HOUSING 








220 Beacon Realty v. MCAD 


In Litigation 




Suffolk 


Keating v. MCAD 


Awaiting Execution 


Norfolk 


Benedetti v. MCAD 


In Litigation 




Hampden 


Meyers v. MCAD 


" " 




Suffolk 


Camb. Housing Authority 


" " 




Middlesex 


V. MCAD 








E.T.C. V. Parker 


" " 




Housing 



PRIVACY 

DiGrazia v. Tucker J. 

MIGRANT WORKERS 

Consolidated Cigar v. Dept. 
of Public Health 



On Appeal 



In Litigation 



SJC 



Hampden 



CORRECTIONS 
Inmates v. Dukakis 
Rogers v. Macht 



In Litigation 



MISCELLANEOUS 

Liberty Mutual v. MCAD On Appeal 

Holden v. MCAD In Litigation 

MCAD V. MBTA Stipulation 

Rousseau v. Commonwealth Dismissed 

Rousseau v. Commonwealth On Appeal 

King V. Commonwealth In Litigation 



Fed. Dist. Ct. 



Ct. of Appeals 
Fed. Dist. Ct. 
Suffolk 

Fed. Dist. Ct. 
Appeals Ct. 
Fed. Dist. Ct. 



IIL NON-LITIGATION ACTIVITIES 
EDUCATION 
Phase II — Operation Safety 
— Oversee all law enforcement and prosecutorial functions involved in 
Phase II. 



30 P.D. 12 

WOMEN'S RIGHTS 

— Approximately 75 women's interest groups were notified of our 
office's existence. 

— Liaison with several individuals involved in RAPE. 

— Organizational meetings of the ERA coalition. 

— Working with Secretary of State and CLUM relative to joint com- 
muniques to city and town clerks on change of name related prob- 
lems. 

Women in criminal justice system — grant proposal for pre-trial de- 
tention; planning panel for conference for employers relative to 
female ex-offenders. 

Established review cycle on legislation with CLUM Subcommittee. 
B. Rouse appointed to Governor's Commission on EPA 
Participation in hearings on 622 Regulations and recommendations 
to Department of Education 



EMPLOYMENT 

Development of affirmative action plan in and for the Department 
of the Attorney General. 
Advisory Opinions on 

Treatment of minorities during civil service layoffs. 
Affirmative Action requirement in school construction contracts. 



PRIVACY 

Attorney General's testimony on Fair Information Practices Legis- 
lation 

Assisting in developing Fair Information Practices Regulations 

Attorney General's letter opposing confidentiality provisions of 

Title XX 

Promotion of Criminal Justice Information System and working out 

agreement with the Board and courts. 
Advisory Opinions on 

Non-requirement of social security number for CETA applicants; 

permissibility of Manpower Affairs seeing Welfare and DES 

records. 

Propriety of DYS loaning historical records to Harvard. 

Making public compliance with election expenditure reporting 

Whether clerk of court records are CORI. 

Whether Massachusetts Rehabilitation Commission records are 

available to recipients. 
Participation on the Boards of: 

Records Conservation Board 

Security and Privacy Council 

Criminal History Systems Board 



P.D. 12 31 



111. AFFIRMATIVE ACTION ACTIVITIES 
EDUCATION 

Study of Truancy Law and meetings with Commissioner of Educa- 
tion relating to Phase II. 

Research and investigation of private academies relating to Phase 
II. 
WOMEN'S RIGHTS 

Liberty Mutual Insurance v. Wetzel — Amicus Brief in U.S. Su- 
preme Court with seven states joining us to favor inclusion of 
pregnancy-related disabilities in income protection plans. 
Pursuing admission of women to Mass. Maritime Academy. 
Publishing/Insurance/Banks — Investigating and drafting com- 
plaints. 

EMPLOYMENT 

Developed and distributed model application forms for compliance 
with C. 15 IB s. 4(9) and 15 IC s. 2(f) which limit criminal history 
information requests. 

CORRECTIONS 

Investigated of certain DYS Treatment Programs regarding alleged 
violation of civil rights of children placed there. 

PRIVACY 

Letter to Governor informing him that Privacy Act of 1974 pre- 
cluded mandatory collection of Social Security Number. Registrar 
of Motor Vehicles has changed policy and has issued public notices. 
Legislation 

Fair Information Practices — for Legislative Privacy Commis- 
sion 

Revisions for Privacy Law 

CORI Revisions for Security and Privacy Council 

Child Abuse Amendments — for Department of Public Health — 

Enacted as St. 1975, c. 528 

Amendments to Ch. 278 — part enacted 

Bank and Telephone Records 

Credit Amendments 

School Records Amendments 

Federal Criminal Records Legislation 
Fair Credit Reporting Act — Working with Consumer — 93A letter 
to Filene's to the effect that shoplifting reports from Protection 
Services, Inc. cannot be used without notice. 

PUBLIC ACCOMMODATIONS 

Ci .E. Redlining — Worked with Consumer Division to draft a com- 
plaint; GE acknowledged it did not service in the redlined area; 
consent decree is being drafted. 
MCAD V. Private Club — Suspension of liquor license being sought 



32 P.D. 12 

HEALTH 

Schools & Drugs — Reviewed law, met with Department of Public 
Health; met with Springfield people; plan redraft of regulations. 
Experimentation — Reviewed law, investigated XYZ Project; 
PLAN TASK FORCE. 

Psychosurgery Regulations — Testified at Department of Mental 
Health on regulations. 

DEVELOPMENTALLY DISABLED 

— Representative Payee System studied, met with Health, Education 

and Welfare; interviewed potential plaintiffs. 
— Zoning — searching for means to overcome zoning prohibition to 

new residences. 

Consumer Protection Division 

During the past six months, the direction of the Consumer Protection 
Division of the Department of the Attorney General has been redefined 
to reflect the philosophy that the limited resources of this office should 
be used for the maximum impact state- wide. Our efforts have involved 
and will continue to focus on bringing significant cases affecting large 
numbers of consumers statewide. In order to implement this philosophy, 
we have reorganized both our complaint handling and litigation sections. 
With regard to litigation, the major task has been establishing an or- 
ganized and systematic approach to enforcing the consumer laws of the 
Commonwealth. 

We started by hiring 13 full time lawyers, whose sole responsibility is 
the maintenance of consumer protection litigation. We have worked with 
local groups to assist them in resolving complaints of residents. This has 
allowed us to reduce the amount of time we spend directly in complaint 
resolution. 

In implementing our systematic approach to consumer problems, we 
have identified major areas of consumer problems and developed an on- 
going program in each of them. To date, we have taken legal action in 
over eighty (80) matters. All of these actions deal with patterns and 
practices which affect a significant number of consumers. 

A list of all legal actions taken by the Consumer Protection Division 
since January 22nd follows. As well as the matters listed on the attached 
list, we have engaged in the following activities: 

Lead Paint Poisoning — Sponsored a conference and established a 
continuing program in this area — working with state and federally 
funded programs. 

Food — Surveyed major food chains in the Greater Boston area in 
regard to compliance with unit pricing, availability of advertised specials 
and pricing of items. Subpoenaed records of two food industries. 

Trailer Parks — Reviewed rules and regulations of 197 trailer parks in 
the Commonwealth. 



P.D. 12 33 



Unfair and Deceptive Advertisini^ — Established a procedure for 
monitoring most of the major newspapers in the Commonwealth for de- 
ceptive advertising. Initiated proceedings to eliminate deceptive use of 
list prices in selected areas and the misuse of the term "wholesale" to 
describe retail prices and the fraudulent use of "close out" sales — es- 
tablishment of a continuing survey of major discount and department 
stores to check whether advertised specials are available in adequate 
quantity. 

Consumer Complaint Handlini^ — Sponsored a conference, estab- 
lished relationships with 12 consumer groups throughout the state. Vis- 
ited communities to encourage establishment of new groups (several of 
these will be getting off the ground soon). Established practice of hold- 
ing monthly meetings for the groups. 

CONSUMER COMPLAINT HANDLING 

In keeping with this Department's philosophy that this office is most 
effective when it files lawsuits which have widespread impact, neighbor- 
hood offices have been closed and we have devised a complaint handling 
system which utilizes a minimum of paid staff. We rely upon volunteers 
and local community groups. We have visited various parts of the state 
to encourage local groups to handle consumer complaints and are hope- 
ful that eventually every part of the state will be covered in this manner. 
We offer these groups education, training, and back-up litigation. Until 
every part of the state is covered, we will continue to handle complaints 
in those areas where groups are not in existence. 

COMPLAINTS HANDLED BY 
THE ATTORNEY GENERAL'S OFFICE 

Volume — Since January 15, 1975, we have logged in approximately 
6,500 consumer complaints. Approximately 70% of all valid complaints 
are closed out to the consumers' satisfaction. 

Staffing — Since January, the complaints have been handled by a 
total of eighty (80) volunteers and students. The program is administered 
by two full time staff members. 

System — After it has been determined that a complaint will be han- 
dled by this office, it is logged in. The consumer is notified within 2-3 
days that we have received the complaint. About 15% of the complaints 
are part of a continuing investigation. The other 85% are assigned to a 
volunteer within 3-4 weeks. This waiting period has been cut from 9-10 
weeks. 

CONSUMER PROTECTION DIVISION 
SUITS FILED BY CONSUMER PROTECTION 
SUBSEQUENT TO FEBRUARY 1, 1975 
LEAD PAINT 

H & F Realty Consent Judgment Bristol 

Maurice Feldman 
Leonard Harrington 

Gloucester Dispatch Inc. Consent Judgment Essex 

James V. Montagnio 



34 



P.D. 12 



TICKET AGENCIES 

Sheldon Cohen d/b/a 
Out of Town Ticket Agency 
Out of Town Newspaper. Inc. 
d/b/a Out of Town Ticket Agency 



Consent Judgment 



Suffolk 



Alfred Valenti 


Consent Judgment 


Suffolk 


d/b/a Valenti Ticket Agency 






Seven's Inc. 


Consent Judgment 


Suffolk 


Hub Ticket Agency 






Tyson Ticket Agency Inc. 


Consent Judgment 


Suffolk 


APARTMENT RENTAL SERVICES 




Apex Apartment Rentals 


Consent Judgment 


Suffolk 


Mass. Rentals, Inc. d/b/a 


In Litigation 


Suffolk 


Citywide 






City R.E. 






E-Z Rentals 






AUTO 






Dante Gregorie d/b/a 


In Litigation 


Suffolk 


United Auto Buyers 






Bob Brest Buick 


In Litigation 


Essex 


Joseph Fiori's 


Final Judgment 


Essex 


d/b/a Joe Fiori's 






Auto Sales 







SCHOOLS 

New England School of 
Culinary Arts and 
Career Training, Inc. 
Marie Bonello individually 
and as officer of Corp. 
Fashion Signatures 
Framingham Civil Service 
School, Inc. 
Career Academy 
E. C.P.I. 

LaSalle Extension Univ. 

MOBILE HOMES 

Irene MacDonald 

Glen Mobile Home Park 

Melvin LaVallee 

Alma Mobile Home Park 

Stanley Trzcinski 

Kitchen Brook Mobile 

Home Park 

Milton Spencer 

Chieftain Mobile Home 

Park 



Consent Judgment 



Middlesex 



In Litigation Norfolk 

Consent Judgment Middlesex 
After Contempt Trial 

In Litigation Suffolk 

In Litigation/Petition Worcester 
for intervention before FTC 

Consent Judgment Suffolk 



In Litigation 
In Litigation 
In Litigation 

In Litigation 



Hampden 
Berkshire 

Berkshire 



P.D. 12 



35 



Ronald C. Filkins 
Ted's Mobile Home Park 
Court Realty, Inc. 
Beacon Trailer Sales 
Allyn & Grace Ayotte 
White House Mobile Home 

REAL ESTATE 

R. MacDonald & Co.. Inc. 

d/b/a Macondonald Real Estate 

Murphy & Murphy 

Drive In Real Estate 

Coordinator, inc. 

d/b/a Co-Ree Real Estate 

Woods Real Estate 

A. Simeone, Inc. Realtors 

Delta Realty Co., Inc. 

John L. Feodoroff d/b/a 

Feodoroff Agency 

Anthony M. Ozella, Inc. 

Louis Consigli 

d/b/a Countryside Realty 

John Harcovitz 

d/b/a John Harkey, Realtor 

Gei-Ger Real Estate Inc. 

d/b/a Cape Real Estate 

Parkwood Estate Realty 

Nathan Gass d/b/a 

Allen Realty 

Vazza Properties 

John W. Keith Builder 

Andrew J. Lane 

Marshfield Real-Estate 

HEALTH SPAS 
Allen Keene 
International Health Spa 

MISC. 

Edward R. Lamusta 

LaMusta's Auto Service 

Daylight Dairy Products 

Paul Bunyan Fences 

H. Hill & Sons, Inc. 

J-Z Enterprises 

Jack's Radio & T.V. 

Kenneth Ryan d/b/a 

Mass. Business & Professional 

Directory 



In Litigation 

Stipulation of 
Dismissal 

Dismissed Without Prejudice 

Consent Judgment 
Consent Judgment 
Consent Judgment 

Consent Judgment 



In S.J.C. 



Consent Judgment 
Consent Judgment 
Contempt Petition 
In Litigation 
In Litigation 
In Litigation 
Consent Judgment 



Berkshire 
Plymouth 
Worcester 

Middlesex 

Middlesex/Cambridg 

Middlesex 

Norfolk 
Middlesex 
Middlesex 
Suffolk 



" 


Norfolk 


" 


Middlesex 


" 


Suffolk 


" 


Suffolk 


In Litigation 




Consent Judgment 


Suffolk 


Consent Judgment 


Middlesex 


" 


Suffolk 



Suffolk 



Worcester 

Hampden 

Middlesex 

Worcester 

Worcester 

Essex 

Plymouth 



36 



P.D. 12 



Sell Enterprises, Inc. 


In Litigation 


Suffolk 


John Williamson 






Robert Bondy 






SUITS FILED PREVIOUSLY 


- STILL IN LITIGATION 




POOLS 






Associated Pools 


In Litigation 


Norfolk 


Apex Pools or Glamour 


Motion for Speedy 


Suffolk 


Pools or Venetian Pools 


Trial 




(Edward Kerker) 






Paul J. Woods Pools 


In Litigation 


Norfolk 


William J. Dineen 


In Litigation 


Plymouth 


All Seasons Recreational 


In Litigation 


Norfolk 


Pools 







ADMINISTRATIVE ACTION 

Federal Communications Commission — Petition to ban drug adver- 
tising on television before 9:00 P.M. The petition was filed with 17 other 
states. 

Division of Occupational Education — Opposition to licensing to 
New England Tractor Trailer. 

Board of Registration of Real Estate Brokers — Proceeding to revoke 
license of principals in Mass. Rentals. 

Board of Registration of Employment Agencies — Opposition to 
licensing of Casseopeio Modeling Agency. 

Federal Trade Commission — Motions to intervene in Proceedings 
involving New England Tractor Trailer and ECPI. 

BANKRUPTCY 

Land Auction Bureau — Appearances in Chapter 1 1 proceedings. 

UTILITY CASES 

A. Rate Cases — Entered and Completed 

Boston Edison Interim $47 Million 

Boston Edison $70 Million 

Boston Gas Interim Case $2,653,799 

Western Mass. Interim $11,000,000 

Haverhill Interim $796,000 

Haverhill Case — Discovery Completed $1,317,799 

New Bedford $13,394,000 

New England Telephone $210 Million 

Cambridge Electric $3,767,000 

Mass. Electric — Cross examination completed $22,800,000 
Cases Entered: 

Baystate Gas — Discovery completed $6,350,000 

Boston Gas $16,700,000 

Western Mass Electric $17,501,000 
Monthly Fuel adjustment hearings 



P.D. 12 37 

B. Affirmative Actions 

Application to Recover $700,000.00 in rebates from the Brockton 
Edison Company 

Preparing Telephone Regulations and hearing regarding these Regu- 
lations. No regulations now exist for the telephone industry. 
Petition to amend Procedural Rules of the DPU, which primarily 
concerns the filing of the prepared testimony with the rate filing. 
Establishing a new Standard Fuel Clause. 
Representing Attorney General — Rate Structure Case 
Petition to amend Billing and Termination Regulations of DPU to 
include municipals. 

Petition to audit Lowell Gas Co.'s transactions with its affiliates. 
The first appearance by Attorney General before the Insurance 
Commission (Thus far, automobile rate case) $400 Million 
Writing regulations for the Plant Siting Commission 
Hearings on whether companies overcharge consumers through the 
fuel clause. 



Environmental Protection Division 

I. DESCRIPTION OF CASES BY CATEGORIES 
AND SUMMARY OF DISPOSITION 

A. CASES BY CATEGORY 

1. AIR POLLUTION 

These cases are referred from the Department of Environmental 
Quality Engineering for violation of the State Air Pollution Regula- 
tions. The most frequent violations of the Regulations at the present 
time seem to be incinerators. The statutory authority is M.G.L. 
c.lll, §42. 

2. WATER POLLUTION 

These cases are generally either for violation of discharge permits 
issued jointly by the State Division of Water Pollution Control and 
the United States Environmental Protection Agency, or for recover- 
ing the costs of cleaning up oil spills. The statutory authority is 
M.G.L. C.21, §§26-53 ("Clean Waters Act"). 

3. WETLANDS PROTECTION 

These fall into two categories ( 1 ) cases involving the permit program 
for altering of wetlands under M.G.L. c.l31, §40 and (2) cases chal- 
lenging the development restrictions which the State is authorized to 
impose on inland and coastal wetlands pursuant to M.G.L. c.l31, 
§40A and M.G.L. c.l30, §150. They are referred from the Wetlands 
Section of the Department of Environmental Quality Engineering or 
generated by us from citizen complaints. 



38 P.D. 12 

4. SOLID WASTE 

These cases derive from M.G.L. c.lll, §150A which regulates the 
manner in which refuse may be disposed of, and the sanitary landfill 
regulations promulgated thereunder. They come from the Depart- 
ment of Environmental Quality Engineering, Bureau of Community 
Sanitation. 

5. BILLBOARDS 

These cases come under M.G.L. c.93, §§29-33, which regulates and 
restricts outdoor advertising and authorizes a permit program. Most 
of these are defenses to petitions for judicial review from decisions of 
the Outdoor Advertising Board. 

B. DISPOSITION OF EPD CASES IN FY 75 
(January 1, 1975 thru June 30, 1975) 

Between January 1st and June 30th this Division closed the following 
number of cases in each category: 

Air 30 

Water 42 

Wetlands 26 

Solid Waste 7 

Billboard 1 

Miscellaneous 

TOTAL 106 

As of June 30th, the following number of cases remained active in this 
office in each category: 

Air 36 

Water 30 

Wetlands 88 

Solid Waste 21 

Billboard 33 

Miscellaneous 

TOTAL 208 

II. EPD CASES OF PARTICULAR IMPORTANCE 

A. AIR 

Bicknell vs. City of Boston 

This Division is presently preparing for the first air pollution case to 
be litigated in the Commonwealth. The Defendant's incinerator has 
been one of the largest uncontrolled sources of air contaminants in 
the State for a number of years. 

B. WATER 

Attorney General vs. U .S. Environmental Protection Agency 
This suit has been brought in the Court of Appeals to challenge the 
EPA permit issued to the MDC for its discharge into the Charles 
River and the Boston Harbor. If we are successful in our efforts, the 



P.D. 12 39 



result could mean cleaner water for the Charles River and Boston 
Harbor by 1984. which is some thirty years in advance of the date 
presently planned by the MDC. 

C. OIL SPILLS 

In FY75 (January 1, 1975 thru June 30, 1975) this Division was able to 
recover fifty-one thousand seven hundred sixty-eight dollars and 
fifty-three cents ($51,768.53) by way of settlement. This figure rep- 
resents one hundred percent recovery of money actually expended 
by and owed to the State for its efforts in cleaning up oil spills in prior 
years. 

D. WETLANDS 

Commonwealth vs. Cumberland Farms, Inc. 
In this case the Division obtained preliminary relief enjoining Cum- 
berland Farms, Inc. from draining and filling a two thousand acre 
wetland in the Towns of Middleboro, Halifax and Plympton in 
Plymouth County, known as Great Cedar Swamp. In order to reach 
that result we gained an important, narrowing, interpretation of the 
"agricultural exemption" to the Wetlands Protection Act. 

E. SOLID WASTE 

Bicknell vs. Town of Bridgewater 

In what we believe was the first Summary Judgment granted in an 
enforcement action by a State Agency, this Division closed down a 
dump that had been a thorn in the State's side for more than five (5) 
years. That particular landfill had been covered by various news 
media as a symbol of local intransigence and the result was a substan- 
tial boost to the regulatory program state-wide. 

F. NON-CATEGORICAL CASES 

Nuclear Power 

Boston Edison et al, Pilgrim Nuclear Generating 
Station - Unit #2 
This Division got the Board of the Nuclear Regulatory Commission 
to order a total rewriting of the Environmental Impact Statement, 
especially on the need for power, after application for Unit #3 of this 
project was withdrawn. This Division also presented expert tes- 
timony on ( 1 ) the need for power, (2) energy conservation potentials, 
(3) coal as an alternative to nuclear power, (4) garbage recycling as an 
alternative to nuclear power, and (5) the impact of theft of nuclear 
materials and sabotage of plants. 

As a result of the active presence of this Division, the applicants 
are required to do a decent study of the need for power in this region, 
which shows substantially less growth than Edison had projected and 
continues to project. 

Montague Nuclear Power Plant (proposed) 

We appear in this case before the Nuclear Regulatory Commission 
and have prepared a motion to continue the hearing for several years, 
based upon a postponement of the project by the company. 



40 P.D. 12 



Federal Power CommissionlConnecticut River Case 
This Division plans to represent the fishery agencies of all the states 
in the Connecticut River Basin in proceedings before the Federal 
Power Commission. It is noteworthy that the case has been pending 
since 1969 and was brought out of the closet and into trial by this 
Division. If this Division succeeds in restoring the Atlantic Salmon 
and American Shad to the Connecticut River, the River Basin States 
will have an increase of revenue of approximately five million dollars 
annually. Formal proceedings should take place sometime in the fall. 



Number 1. July 2, 1974 

Honorable Gregory R. Anrig 

Commissioner of Education 

182 Tremont Street 

Boston, Massachusetts 02111 

Dear Commissioner Anrig: 

You have asked for my opinion concerning the power of the Mas- 
sachusetts Board of Education to issue regulations under a statute con- 
cerning public education when that law does not specifically authorize 
the Board to issue regulations. 

In particular you have focused on the question of issuing regulations 
or guidelines under St. 1971, c. 622, G. L. c. 76, § 5 and § 16, which 
reads as follows: 

§ 5. Place of Attendance; discrimination 

''Every child shall have a right to attend the public schools 
of the town where he actually resides, subject to the following 
section. No child shall be excluded from or discrminated 
against in admission to a public school of any town, or in ob- 
taining the advantages, privileges and courses of study of 
such public school on account of race, color, sex, religion or 
national origin." 
and 

§ 16. Children Excluded from School; remedies 

"The parent, guardian or custodian of a child refused ad- 
mission to or excluded from the public schools or from the 
advantages, privileges and courses of study of such public 
schools shall on application be furnished by the school com- 
mittee with a written statement of the reasons therefor, and 
thereafter, if the refusal to admit or exclusion was unlawful, 
such child may recover from the town in tort, and may ex- 
amine any member of the committee or any other officer of 
the town, upon interrogatories." 

In deciding whether regulations may be promulgated under the anti- 
discrimination law. G. L. c. 76, §§ 5 and 16. it must be noted that 
neither section explicitly authorizes the Board to issue regulations nor 



P.D. 12 41 

do they explicitly grant the Board the power to enforce the sections. 
Under these circumstances, then, may the Board issue regulations pro- 
viding tor the implementation of Chapter 622? 

The answer to this question preliminarily depends on an analysis of 
the scope of the Board's powers and duties under the law. Under G. L. 
c. 15, § IG, the Board is empowered to "support, serve and plan general 
education in the public schools" (par. 1); to provide "centralized, state 
wide, long-range planning" (par. 4) and a "center for the development, 
evaluation, and adaptation of educational innovations" in public schools 
(par. 5); and to "establish minimum educational standards" for required 
public school courses (par. 14). Under G. L. c. 15, § IF, the Board is 
empowered to appoint the Commissioner of Education, who is the 
"chief state school officer for elementary and secondary education", 
and to establish divisions in the areas of curriculum and instruction, ad- 
ministration and personnel, research and development, school facilities, 
and others. 

In addition to the assignment of functions and duties to the Board out- 
lined above, the Board is authorized to collect and maintain information 
relevant to its work. G. L. c. 15, § IG. The many other delegations of 
power to the Board need not be discussed here, other than to point to 
two highly pertinent provisions. General Laws, c. 15, § IG specifically 
charges the Board with the duty of seeing that school committees com- 
ply with the laws concerning public schools: 

"The board shall see to it that all school committees com- 
ply with all laws relating to the operation of the public 
schools and in the event of noncompliance the commissioner 
of education shall refer all such cases to the attorney general 
of the commonwealth for appropriate action to obtain com- 
pliance." (Par. 20). 
and: 

"The board may withhold state and federal funds from 
school committees which fail to comply with the provisions of 
law relative to the operation of the public schools or any regu- 
lation of said board authorized in this section." (Par. 18). 

In light of the functions, powers and duties of the Board as set forth 
above, may the Board issue regulations providing for the implementation 
of Chapter 622? 

It has long been the law in this Commonwealth that: 

"Where a grant of power is expressly conferred by statute 
upon an administrative officer or board or where a specific 
duty is imposed upon them, they in the absence of some 
statutory limitation have authority to employ all ordinary 
means reasonably necessary for the full exercise of the power 
and for the faithful performance of the duty. Fliict v. 
McCahe, 299 Mass. 173. George A. Fuller Co. v. 
Commonwealth, 303 Mass. 216. Attorney General v. 
Trustees of Boston Elevated Railway, 319 Mass. 642, 655. 



42 P.D. 12 

Scannell v. State Ballot Law Commission, 324 Mass. 494. 
But an administrative board or officer has no authority to 
promulgate rules and regulations which are in conflict with 
the statutes or exceed the authority conferred by the statutes 
by which such board or office was created. . . ."' Bureau of 
Old Age Assistance of N a tick v. Commissioner of Public 
Welfare, 326 Mass. 121, 124 (1950). 

Even prior to the adoption of the State Administrative Procedure Act, 
G. L. c. 30A, it was recognized that 

''The well established general rule is that when a general 
power is given or duty enjoined, every particular power, 
necessary for the exercise of the one, or the performance of 
the other, is given by implication." Fluet v. McCabe, 299 
Mass. 173, 178 (1938). 

Thus, in Lynch v. Commissioner of Education, 317 Mass. 73 (1944), 
the Court upheld a Department of Education rule charging tuition at 
state teachers colleges although there was no statute specifically au- 
thorizing the charging of tuition. The Lynch court noted that: 

"it is well established that when a general power is given 
all authority necessarily incidental to carry out the power is 
given by implication." 317 Mass. at 79. 
The court found that the Department was authorized to charge tuition 
by a statutory scheme giving it "general management" of state teachers 
colleges. 

The breadth of incidental administrative authority to perform a statu- 
tory duty is indicated by language in later cases. In Scannell v. State 
Ballot Law Commission, 324 Mass. 494, 501 (1949), the Court stated: 
"A statutory grant of power may be general or particular. 
An express grant carries with it by implication all incidental 
authority required for the full and efficient exercise of the 
power conferred. The Legislature need not enumerate nor 
specify, definitely and precisely, each and every ancillary act 
that may be involved in the discharge of an official duty. It is 
enough for the Legislature to impose the duty to be per- 
formed within a prescribed field for a designated end, leaving 
to the board's discretion the selection of the appropriate 
methods and means and the other administrative details to be 
employed in accomplishing the statutory purpose." 
Thus, the law of this Commonwealth recognizes that "[w]hen a general 
power is given, all authority necessary to carry it out is inferred by im- 
plication." Multi-Line Insurance Rating Bureau v. Commissioner of 
Insurance, 357 Mass. 19, 22 (1970). 

In addition to this rationale for incidental administrative authority, 
which would, of course, include power to promulgate regulations, the 
law has pointed to another rationale. Administrative regulations provide 
an interpretation of the meaning of statutes which is given significance 
by the courts. As was said in Clearx v. Cardullo's, Inc., 347 Mass. 337, 
343-44(1964): 



P.D. 12 43 



"The duty of statutory interpretation is for the courts. 
Nevertheless, particularly under an ambiguous statute . . . 
the details of legislative policy, not spelt out in the statute, 
may appropriately be determined, at least in the first in- 
stance, by an agency charged with administration of the stat- 
ute." 



and 



"The best proof, of course, of a consistent administrative 
interpretation is the administrative body's regulations, or its 
published written decisions or interpretations." 

See also. Board of Assessors of Holyoke v. State Tax Commission. 355 

Mass. 223, 243-44(1969). 

Both of these rationales have been used to justify administrative au- 
thority in the Commissioner and the Board of Education where the stat- 
utes did not specifically provide that authority. In School Committee of 
\ew Bedford v. Commissioner of Education, 349 Mass. 410 (1965), the 
school committee of New Bedford sought a declaratory judgment that it 
was not required to take a racial census as the Commissioner directed it 
to do. The Court upheld the Commissioner's exercise of administrative 
authority, saying, at 349 Mass. at 414, that: 

"The enumeration and grant of the commissioner's powers 
and duties in G. L. c. 69 by implication give to him a substan- 
tial range of incidental authority to do in an ordinary and 
reasonable manner those things required for the efficient ex- 
ercise of the powers and the satisfactory performance of the 
duties. See Lynch v. Commissioner of Education, 317 Mass. 
73, 79-80; Scanned v. State Ballot Law Commission, 324 
Mass. 494, 501-502; Bureau of Old Age Assistance v. 
Commissioner of Public Welfare, 326 Mass. 121, 124." 

In School Committee of City of Springjleld v. Board of Education, 
Adv. Sh. 1543, 1564 (1972), the Court suggested to the Board that it 
promulgate regulations under the Racial Imbalance Law, which statute 
does not expressly provide for regulations, as an aid in interpretation: 
"While the board must make its own independent determi- 
nation whether a plan satisfied c. 71, § 37D, we suggest for 
the guidance of school committees that the board set forth be- 
forehand how it interprets, and intends to apply, the require- 
ments of the statute. The means of accomplishing this object 
are found in G. L. c. 30A, §§ 1(2), (5), 2, 3, which establish 
rule-making procedures applicable to all but a few of the ad- 
ministrative agencies of State government. See also G. L. c. 
30A, § 8 (advisory rulings). Although the usefulness of regu- 
lations should not be overrated, their importance is never 
greater than where, as here, an agency must interpret a legis- 
lative policy which is only broadly set out in the governing 
statute. See Cleary v. Cardullo's, Inc., 347 Mass. 337, 
343-344. See also Environmental Defense Fund Inc. v. 
Ruckelshaus, 439 F.2d 584, 596-598 (D.C. Cir.)." 



44 P.D. 12 

The legislative policy against discrimination in public schools is 
broadly set forth in Chapter 622 and it is reasonable to think that an ad- 
ministrative interpretation of that policy might be useful. Further, is- 
suance of regulations or recommendations under Chapter 622 would be 
an ordinary and reasonable manner of exercising the Board's duties 
under G. L. c. 15, § IG, of seeing that all school committees comply 
with laws pertaining to the operation of public schools. Of course, such 
regulations or recommendations would be subject to the promulgation 
requirements of G. L. c. 30A. 

This opinion does not pass upon the validity of any particular regula- 
tion the Board may wish to draw up, for 

". . . it is not the function of this office to draft and pass 
upon regulations of this kind in advance of actual rights in- 
volved thereunder." 1962 Op. Atty. Gen. 115, 116. 
Nor does this opinion purport to pass upon the power of the Board to 
promulgate regulations under other statutes. 

This opinion does set forth some criteria found in the law governing 
this subject. The mere fact that a statute does not expressly authorize 
issuance of regulations does not necessarily bar such regulations. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 2. July 16, 1974 

Honorable David J. Lucey 

Registrar of Motor Vehicles 

100 Nashua Street 

Boston, Massachusetts 02114 

Dear Mr. Lucey: 

You have requested my opinion upon several questions arising as a 
result of the recent decision of a single judge of the United States Dis- 
trict Court for the District of Massachusetts in Cicchetti, et al. v. 
Lucey, Civil Action No. 73-3185-F, opinion entered May 21, 1974. 
There the court declared that Massachusetts General Laws, c. 90C, § 4, 
being violative of certain due process rights guaranteed by the Four- 
teenth Amendment to the United States Constitution, is unconstitutional 
on its face. Specifically, you inquire: 

(1) Whether you are correct in refusing to suspend an 
operator's license pursuant to G. L. c. 90C, § 4; 

(2) Whether you should take immediate steps to reinstate all 
licenses to operate currently under suspension pursuant to 
the provisions of c. 90C, § 4; and 

(3) What effect the declaration of unconstitutionality has upon 
your actions in suspending licenses pursuant to the provi- 
sions of c. 90, §§ 20A and 20C. 



P.D. 12 45 



Inasmuch as a Notice of Appeal to the United States Court of Ap- 
peals for the First Circuit has been filed in Cicchetti, the issues pre- 
sented therein have not been determined with a finality which would 
warrant addressing the questions which you pose. Accordingly, 1 re- 
spectfully decline to render a formal opinion at this time. Of course, 
members of my staff are available to confer with you and advise you in- 
formally of the steps to be taken pending resolution of the appeal. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 3. July 22, 1974 

Honorable Crocker Snow 

Director of Aeronautics 

Logan Airport 

East Boston, Massachusetts 02128 

Dear Mr. Snow: 

With respect to your duties as Executive Director of the Mas- 
sachusetts Aeronautics Commission, you have requested my opinion 
whether vessels come within the definition of structures under St. 1951, 
c. 799, § 1. The vessels in question are those which have masts or super- 
structures over a certain length and which pass the approach end of 
runway 4-R at General Edward Lawrence Logan International Airport 
(Logan Airport). The height of these vessels is such as to extend into 
airport approach zones established pursuant to St. 1951, c. 799. You 
state that if these vessels were restricted from passing within that run- 
way during times of low visibility, a significant increase in the usable 
length of the runway would be provided. I do not reach the merits of this 
issue because it is my opinion that St. 1956, c. 465, which created the 
Massachusetts Port Authority and defined its powers and duties, re- 
pealed St. 1951, c. 799 by implication. 

The Massachusetts Aeronautics Commission has general regulatory 
authority over airports in the Commonwealth. G. L. c. 90, §§ 35-52. The 
particular provision relating to structures within airport approaches 
specifically provides that ''[t]he provisions of this section shall not apply 
... to air approaches to the General Edward Lawrence Logan Interna- 
tional Airport." G. L. c. 90, § 35B, as inserted by St. 1960, c. 756, § 1. 
Any authority which the Commission might have with respect to Logan 
Airport derives from St. 1951, c. 799, §§ 1-11, entitled, ''An Act Estab- 
lishing Airport Approach Zones for the General Edward Lawrence 
Logan Airport." Section 3 of c. 799 provides for the establishment of 
airport approach zones as shown on a map filed in the office of the State 
Secretary. "[A]ny structure or tree which extends into any airport ap- 
proach zone" is defined by § 1 as an "[ajirport hazard." Under § 4 the 
Commission may "take by eminent domain, or acquire by purchase or 
otherwise, any airport hazard or the land on which it stands, or both." 



46 P.D. 12 



In 1956 the Legislature established the Massachusetts Port Authority 
to take over the management, control and operation of Logan Airport. 
St. 1956, c. 465, §§ 1-35. The Authority was authorized under § 4 to ac- 
quire by purchase or to take by eminent domain property which it 
deemed essential for its operation. In particular, it was authorized to 
"order the removal or relocation of any surface tracks, and the removal 
or relocation of any conduits, pipes, wires, poles or other property lo- 
cated in public ways or places, or in or upon private lands, which it 
deems to interfere with the laying out, construction or operation of any 
project, and the proper authorities shall grant new locations for any such 
structure so removed or relocated, and the owner thereof shall be reim- 
bursed by the Authority for the reasonable cost of such removal or relo- 
cation.'' (Emphasis supplied.) 

The Authority is also authorized to apply for and receive federal 
grants for the planning, construction or financing of airport facilities. St. 
1956, c. 465, § 3(n). One of the conditions to the receipt of such funds 
under federal law is that the local authority ensure the removal of struc- 
tures that might constitute airport hazards. 49 U.S.C. § 1718(3); 
Jankovich v. Indiana Toll Road Commission, 379 U.S. 487 (1965). The 
establishment of airport approach zones by the Authority would thus 
also be authorized by that provision which authorizes "all acts and 
things necessary or convenient to carry out the powers expressly 
granted in this act." St. 1956, c. 465, § 3(p). 

The authority to establish clear zones,' which is impHcit in St. 1956, c. 
465, was made explicit by St. 1963, c. 410, which prohibited the Author- 
ity from acquiring, by the exercise of eminent domain, certain land in a 
westerly direction "except for the purpose of protecting the aerial ap- 
proaches to runways in accordance with applicable federal standards 
[and/or] meeting runway clear zone requirements of the federal 
government."^ See Loschi v. Massachusetts Port Authority, 354 Mass. 
53 (1968); City of Boston v. Massachusetts Port Authority, 356 Mass. 
741 (1970) (rescript). 

The present situation is that both the Massachusetts Aeronautics 
Commission and the Massachusetts Port Authority are authorized to es- 
tablish and maintain clear zones for aircraft landings and takeoffs at 
Logan Airport. The issue is whether the later enactment, St. 1956, c. 
465, has repealed St. 1951, c. 799 by implication. 

"Ahhough the principle is one which the court, in defer- 
ence to the Legislature, does not regard with favor and ap- 
plies with caution, it has its proper place injudicial construc- 
tion of legislative enactments. It derives from the basic con- 
cept that it is the duty of the court to ascertain the legislative 



'"A clear zone is an area at the end ofa runway from which buildings may he excluded or within which their height may 
be limited in order to permit safe landings and takeoffs." Mayer v. Boston Meliopolitaii Airport. Inc.. 355 Mass. 344, 
347 n. 4 (1969). 

=The Federal Aviation Administration is authorized, under 49 U.S.C. § 1501. to promulgate rules and regulations con- 
cerning structures which are considered to be hazards to air commerce. The rules and regulations which have been 
enacted. 14 C.F.R.. §§ 77.1-77.75. provide a procedure whereby the Federal Aviation Administration issues an advis- 
ory opinion as to whether a particular structure, such as a vessel which traverses a waterway (14 C.F.R. § 77.23(b)). 
constitutes an airport hazard. Illinoi.s Citizens Com. for BroaJiiislinn v. h'.C.C. 467 F.2d 1397. 1401 (7th Cir. 1972). 



P.D. 12 47 

intent and to effectuate it. The test of the applicabihty of the 
principle of implied repeal is whether the prior statute is so 
repugnant to and inconsistent with the later enactment cover- 
ing the subject matter that both cannot stand." Dohcrty v. 
Commissioner of Administration, 349 Mass. 687, 690 (1965). 
There are numerous indications that the legislative intent of St. 1956, 
c. 465 was to repeal St. 1951. c. 799. The provisions of St. 1956, c. 465 
are to be liberally construed to effectuate the purposes of the Act. St. 
1956, c. 465, § 27; Massachusetts Port Authority v. Clerk of the East 
Boston District Court, 350 Mass. 195, 202 (1966). Section 2 provides 
that the Authority is not "subject to the supervision or regulation ... of 
any . . . commission . . . of the commonwealth except to the extent and 
in the manner provided in this act." In this regard there is no provision 
for regulation of airport hazards by the Aeronautics Commission. The 
absence of such regulatory authority is in line with the general legislative 
concern that, in order to meet business competition from other airports, 
the Authority was to function as a business without "inflexible and 
rigid" government control. Report of the Special Commission on the 
Massachusetts Port Authority, 1956 House Doc. No. 2575, p. 10; see 
City of Boston v. Massachusetts Port Authority, Mass. Adv. Sh. (1974) 
187. Furthermore, § 29 provides: "All other general or special laws, or 
parts thereof, inconsistent herewith are hereby declared to be inapplica- 
ble to the provisions of this act . . ." 

In this legislative context, it is manifest that St. 1951, c. 799. is so in- 
consistent with St. 1956, c. 465 that both cannot stand and that the later 
enactment must apply. A sharing of joint responsibility with respect to 
the establishment of clear zones would diffuse rather than clarify this 
important responsibility. In fact, St. 1951, c. 799 was enacted subse- 
quently to the issuance of an opinion by one of my predecessors to the 
effect that the regulation of airport hazards at Logan Airport was the 
joint responsibility of the Aeronautics Commission and the Airport 
Management Board. 1949 Op. Atty. Gen. 33 (October 8, 1948). The 
legislative response indicated that only one entity should be directly re- 
sponsible for such matters. By enactment of St. 1956, c. 465, the Legis- 
lature has squarely placed that authority and responsibility in the Mas- 
sachusetts Port Authority. 

In conclusion, it is my opinion that St. 1951, c. 799 has been repealed, 
thus making any substantive determination as to the interpretation of 
any particular provision unnecessary. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



48 P.D. 12 

Number 4. September 16, 1974 

Honorable Robert L. Meade, Chairman 

Department of Public Utilities 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Chairman Meade: 

You have requested my opinion regarding the interrelationship be- 
tween St. 1973, c. 426, §§ 36 and 48. Section 36 amends G. L. c. 25, § 2 
by increasing the salaries of the Commissioners of Public Utilities. 
However, section 48 later provides, "Notwithstanding any provisions of 
this act to the contrary, the provisions of . . . section two of chapter 
twenty five ... of the General Laws ... in effect immediately prior to 
the effective date of this act, shall remain in effect and apply to ap- 
pointments to the offices referred to therein which are made on or after 
said effective date." 

Reading the two sections together, you have observed that they result 
in a situation where newly appointed commissioners receive a lesser sal- 
ary than commissioners appointed prior to the act and newly reap- 
pointed commissioners receive a decrease in salary. I believe that your 
observation is an accurate one. It would seem that the intent of the 
General Court in enacting the two sections was to maintain the salaries 
of incumbent commissioners at their existing level in terms of real dol- 
lars, but to bring about a real decrease in the salaries of future commis- 
sioners. While, for a time, some commissioners might find themselves 
receiving a lesser salary than others, such a situation is not as inequita- 
ble as might first appear, since the effect of the statute is that none will 
be receiving a salary which is less in terms of real dollars than that 
which he was offered at the time he assumed office. As the terms of 
commissioners expire, there will eventually have been effected a real 
decrease in the salary of all of the commissioners although the face 
amount of the salary will remain constant. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 5. September 16, 1974 

Ms. Regina Healy, Commissioner 
Massachusetts Commission Against 

Discrimination 
120 Tremont Street 
Boston, Massachusetts 02108 

Dear Commissioner Healy: 

With regard to the issue of whether a creditor might properly condi- 
tion the granting of credit upon a woman's use of her husband's sur- 
name, you have asked my opinion on the following question: 



P.D. i: 49 

"Whether, upon marriage, a woman must abandon her sur- 
name and assume the surname of her husband without an ex- 
press intent to do so." 

The short answer to your question is "No."" A person is free to as- 
sume any name that he or she chooses so long as he or she does so for 
non-faudulent purposes. Buyarsky, Petitioner, "^ll Mass. 335 (1948). 
The law will regard a person as assuming the name which he or she 
takes for his or her own use. See generally, Merolevitz. Petitioner. 320 
Mass. 448, 450; Op. Atty. Gen., 73/74-29. 

No Massachusetts statute compels a woman to adopt her husband's 
surname. Certain statutes were apparently written upon the assumption 
that a woman will change her surname upon her marriage, e.g.. G. L. c. 
208. § 23. but this type of legislation is not inconsistent with the view 
that the name change is not compelled, since it has been the prevailing 
custom, for at least the last two centuries, for a woman to change her 
surname upon her marriage. 

The status of the common law of Massachusetts is less clear. The 
Supreme Judicial Court has not had occasion to rule on this precise 
question. In 1926. the Court adopted, without discussion, the New York 
view of the common law, that a married woman who has made use of 
her husband's surname assumes his surname as her legal name. Bacon 
V. Boston Elevated Railway, 256 Mass. 30 (1926); Chapman v. Phoenix 
National Bank, 85 N.Y. 437 (1881). The Bacon case, and certain cases 
restating the law as espoused in Bacon, e.g. Koley v. Williams, 256 
Mass. 601 ( 1929), are of doubtful value as precedent even for the limited 
proposition that a married woman who makes use of her husband's sur- 
name assumes his surname as her own. These cases involved the issue 
of proper automobile registration and the application of the now defunct 
"trespasser upon the highway doctrine."" (See G. L. c. 90, § 9, as 
amended by St. 1959, c. 259.) The decisions do not control the case of a 
woman who has retained the use of her maiden name after her marriage. 

The Supreme Judicial Court recently decided a case in which the 
principal issue involved an application of the common law rule that the 
domicile of a wife automatically follows that of her husband. The Court 
ruled against the Commonwealth and held that a married woman might 
have a domicile apart from that of her husband. The remarks of Mr. Jus- 
tice Braucher who authored the Court's opinion are instructive: 

"As we have recognized, important changes in popular and 

legal thinking suggest that 'ancient canards about the proper 

role of women" have no place in the law. See Surahain v. 

Surahain. Mass. . n. 7 (1972) Mass. Adv. Sh. 

(1972) 1461. 1466, n. 7, quoting Phillips v. Martin Morutta 

Corp.. 400 U.S. 542, 544-545 (1971)." Green v. 

Commissioner of Corporations and Taxation, December 13. 

1973. Mass. Adv. Sh. 1549 at 1554. 

Finally, the notion that the general "common law" requires that a 
woman assume the surname of her husband upon her marriage has been 
significantly deflated by recent scholarly and judicial research on the 



50 P.D. 12 



subject. There is no universal requirement of the "common law," either 
in England or in the United States, which compels a woman to change 
her name upon marriage. See Stuart v. Board of Supervisors of 
Elections, 266 Md. 440, 295 A. 2d 223 (1972), and authorities cited; 
MacDougall, "Married Women's Common Law Right to Their Own 
Surnames," Women's Rights Law Reporter, Vol. 1, No. 3, 1972/73, p. 
2; see generally. Opinion of the Attorney General, 73/74-29. 

In summary, a woman who has retained the use of her maiden name 
after her marriage is not compelled by Massachusetts law to assume her 
husband's surname for any purpose. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 6. September 27, 1974 

Richard Gary Paull, Esquire 
First Assistant District Attorney 

Southern District 
Superior Court House 
New Bedford, Massachusetts 

Dear Mr. Paull: 

You have requested my opinion relative to whether a judge or clerk in 
a district court of the Commonwealth may issue a search warrant to 
search a house in a district other than that in which the court is situated. 
I am of the view that he may. 

General Laws, c. 276, § 1 provides, in relevant part: 

"A court or justice authorized to issue warrants in criminal 
cases may, upon complaint on oath that the complainant be- 
lieves that any of the property or articles hereinafter named 
are concealed in a house, place, vessel or vehicle or in the 
possession of a person anywhere within the commonwealth 
and territorial waters thereof, if satisfied that there is proba- 
ble cause for such belief, issue a warrant identifying the prop- 
erty and naming or describing the person or place to be 
searched and commanding the person seeking such warrant to 
search for [specified articles.]." (Emphasis supplied.) 

Thus, a court or justice authorized to issue a search warrant in criminal 
cases may issue a warrant to search premises located anywhere in the 
Commonwealth, be they within or without the judicial district served by 
that court. The word "court," as used in the section, includes "clerks." 
Commonwealth v. Penta, 352 Mass. 271, 273 (1967). 

The authority to issue search warrants is clearly granted to district 
court judges through G. L. c. 218, § 35. The same authority is granted to 
their clerks through G. L. c. 218, § 33. Penta, supra at 273. 



P.D. 12 51 

Reading the three sections together, then, the conclusion is compelled 
that, being authorized to issue search warrants, district court judges and 
clerks may issue warrants to search premises anywhere in the Com- 
monwealth. Accordingly. I answer your question in the affirmative. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 7. October 2, 1974 

Honorable John F. Kehoe, Jr. 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston. Massachusetts 02215 

Dear Mr. Kehoe: 

I have your inquiry concerning a truck washing business conducted on 
Sunday. You request an opinion as to whether the business is exempt 
from the Sunday law by virtue of § 6(44) of G. L. c. 136. Section 6 of c. 
136 exempts from the operation of the Sunday law various businesses 
and activities including the following: 

"(44) The operation of a car-washing business between 
eight o'clock in the forenoon and one o'clock in the after- 
noon, provided that such business may be carried on at any 
time if not more than a total of two persons are employed 
therein at any one time on Sunday and throughout the week." 

I understand that the basic factual situation is as follows. Because 
trucks cannot be involved in transportation on Sunday except between 
stated hours, they stay over at particular terminals in the Common- 
wealth. The operation of their trucks during the week precludes them 
from having the trucks cleaned. The problem has been solved by the in- 
stitution of a mobile truck washing business in which a truck, equipped 
with a compressor, heating oils and tools affixed to its body and used 
solely for the purpose of washing trucks is dispatched to one or more 
terminals during the day on Sunday and engages in the business of wash- 
ing trucks at these terminals. 

From the foregoing, I conclude that a car washing business is in- 
volved, within the meaning of § 6(44), and that if it complies with § 
6(44), it will be exempt from the operation of the Sunday law. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



52 P.D. 12 



Number 8. October 2. 1974 

Dr. William G. Dwyer, President 

Board of Regional Community Colleges 

Custom House Plaza 

177 Milk Street 

Boston, Massachusetts 02109 

Dear Dr. Dwyer: 

I have your request for an opinion as to whether St. 1973, c. 1189, § 1. 
which amended G. L. c. 15, § 39, must be implemented in the coming 
fall semester. 

General Laws, c. 15, § 39 was added by St. 1964, c. 737, § 1, and prior 
to the enactment of c. 1 189, provided as follows: 

"Each regional community college may conduct summer 
sessions, provided such sessions are operated at no expense 
to the commonwealth. Each regional community college may 
conduct evening classes, provided such classes are operated 
at no expense to the commonwealth." 

The Legislature then enacted St. 1966, c. 601, which, as amended by 
St. 1968, c. 480, authorized the Department of Education to issue a cer- 
tificate of exemption from tuition at any state institution of higher educa- 
tion to Vietnam veterans, under the conditions therein set forth. The 
apparent conflict between these two statutes was resolved by an opinion 
of my predecessor that a regional community college could not admit a 
Vietnam veteran on a tuition-free basis if to do so required the operation 
of the summer session or evening classes in such manner as to incur ex- 
pense to the Commonwealth. That opinion stated, however, that Viet- 
nam veterans could be enrolled in such courses if a sufficient number of 
tuition-paying students were enrolled therein so that the cost of opera- 
tion would not be borne by the Commonwealth. 1967 Op. Atty. Gen. p. 
174. It is clear that the Legislature intended to remove this limitation on 
enrollment of Vietnam veterans in such courses by enacting c. 1 189, § 1, 
which added the following two sentences to G. L. c. 15, § 39: 

"Vietnam veterans whose service was credited to the 
commonwealth may attend such summer sessions and eve- 
ning classes tuition free, if academically qualified. The cost of 
instruction for each Vietnam veteran who attends such ses- 
sions and classes shall be borne by the commonwealth." 
(Emphasis supplied.) 

The underlined provision unequivocally states that the source for tuition 
expenses for Vietnam veterans is the Commonwealth (subject to reim- 
bursement by the veteran if he is eligible for federal funds as reimburse- 
ment, St. 1973, c. 1189, § 3). General Laws, c. 15, § 32 provides that 
"the general court shall annually appropriate such sums as it deems 
necessary for the maintenance, operation and support of each regional 
community college . . ." By enacting c. 1189, the Legislature has obvi- 
ously declared such Vietnam veterans' tuition expenses to be "neces- 



P.D. 12 53 



sary" and, accordingly, recourse must be had to the Legislature for ap- 
propriation of the necessary funds. If insufficient funds are appro- 
priated, then expenditures from existing appropriations must be made in 
the manner provided in G. L. c. 15, § 32. 

It follows that St. 1973, c. 1189 must be implemented in the coming 
fall semester. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 9. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By a letter dated September 9, 1974, you have asked me whether the 
following question (or questions identical in all material aspects) is one 
of public policy in accordance with section 19 of Chapter 53 of the Mas- 
sachusetts General Laws: 

"Shall the Senator from this District be instructed to vote 
to approve a resolution memorializing the Congress of the 
United States in favor of Amnesty for all those who resisted 
the Vietnam War?" 
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 Op. Atty. Gen., pp. 99-100; 1955 Op. 
Atty. Gen., pp. 51-52. See also, 8 Op. Atty. Gen. (1928), pp. 490, 
491-492; 1965 Op. Atty. Gen., pp. 92-93. Consequently, the question 
may properly be included on the election ballot in the four Senatorial 
Districts which you have mentioned, namely: Plymouth-Norfolk; Suf- 
folk and Middlesex; 4th Middlesex; 5th 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 



54 P.D. 12 

Number 10. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By letter dated September 9, 1974, 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 bill which would prohibit 
telephone companies from charging long distance rates for 
telephone calls made within a community?'' 

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 Op. Atty. Gen., pp. 99-100; 1955 Op. 
Atty. Gen., pp. 51-52. See also, 8 Op. Atty. Gen. (1928), pp. 490, 
491-492; 1965 Op. Atty. Gen., 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 5th Plymouth Representative District, that 1 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 Op. 
Atty. Gen., p. 93. 



Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 11. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

In a letter dated September 9, 1974, you have asked me whether the 
following question is one of public policy in accordance with G. L. c. 
53, § 19: 

"Should the Massachusetts Bay Transportation Authority 
(MBTA) construct a Rapid Transit station in South 
Quincy?" 



P.D. 12 55 

While the proposal involved in the question encompasses a small area 
geographically, the problem of public transportation is one of great con- 
cern to the Commonwealth in general. Therefore, keeping in mind the 
fact that the term "public policy" should be construed broadly, 8 Op. 
Atty. Gen., p. 490, 493, I conclude that the question satisfies the re- 
quirements of G. L. c. 53, § 19, see also 1969 Op. Atty. Gen., p. 37, 
1955 Op. Atty. Gen., p. 51. Consequently, the question may properly be 
included on the election ballot in the Represenatative District which you 
have mentioned, namely, the 1st Norfolk. 

You have further requested 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 following 
form: 

"Shall the Representative from this District be instructed 
to vote in favor of the passage of a bill requiring the Mas- 
sachusetts Bay Transportation Authority (MBTA) to con- 
struct a rapid transit station in South Quincy?" 



Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 12. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By a letter dated September 9, 1974, 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 
which would 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 is therefore a question of "public policy" within the mean- 
ing of G. L. c. 53, § 19. See 1939 Op. Atty. Gen., pp. 99-100; 1955 Op. 
Atty. Gen., pp. 51-52; Op. Atty. Gen., 1970/1971-10. See also, 8 Op. 
Atty. Gen. (1928), pp. 490, 491-92; 1965 Op. Atty. Gen., 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 5th Plymouth Representative District, that I supply 
your office with a suitable statement of the question for presentation 



56 P.D. 12 



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 Op. Atty. 
Gen., 1970/1971-10. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 13. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By letter dated September 9, 1974, 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 spon- 
sor and support a resolution calling for the closing and dis- 
mantling of nuclear power plants in Rowe, Massachusetts, 
and Vernon, Vermont?" 

Although the question presented is one of particular interest geo- 
graphically, it is my opinion that the question is also an "important pub- 
lic question" since it concerns itself with important environmental issues 
in which "every citizen of the Commonwealth has an interest," and it is 
therefore a question of "public policy" within the meaning of G. L. c. 
53, § 19. See 1939 Op. Atty. Gen., pp. 99-100; 1955 Op. Atty. Gen., pp. 
51-52; 1969 Op. Atty. Gen., pp. 37-38. See also, 8 Op. Atty. Gen. 
(1928), pp. 490, 491-92; 1965 Op. Atty. Gen., pp. 92-93. Consequently, 
the question may properly be included on the election ballot in the 
Senatorial District which you have mentioned, namely: Franklin- 
Hampshire-Hampden. 

You have further requested 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 14. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By letter dated September 9, 1974, you have asked me whether the 



P.D. 12 57 

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 a resolution memorializing the Congress of 
the United States in favor of federal land use controls as 
proposed by the Nantucket Sound Islands Trust Bill?" 

Although the question presented is one of particular interest geo- 
graphically, it is my opinion that the question is also an "important pub- 
lic question," since it concerns itself with important environmental is- 
sues in which "every citizen of the Commonwealth has an interest," 
and it is therefore a question of "public policy" within the meaning of 
G. L. c. 53. § 19. Sec 1939 Op. Atty. Gen., pp. 99-100; 1955 Op. Atty. 
Gen., pp. 51-52; 1969 Op. Atty. Gen., pp. 37-38. See also, 8 Op. Atty. 
Gen. (1928), pp. 490, 491-92; 1965 Op. Atty. Gen., pp. 92-93. Conse- 
quently, the question may properly be included on the election ballot in 
the Representative District which you have mentioned, namely: Nan- 
tucket Representative. 

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 15. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By a letter dated September 9. 1974, 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 bill which would extend 
the Rent Control Enabling Act indefinitely without limit in 
time?" 

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 Op. Atty. Gen., pp. 99-100; 1955 Op. 
Atty. Gen., pp. 51-52. See also 8 Op. Atty. Gen. (1928), 490, 491,94; 
1965 Op. Atty. Gen., pp. 92-93. Consequently, the question may prop- 
erly be included on the election ballot in the Representative District 
which you have mentioned, namely: 4th Middlesex. 



58 P.D. 12 

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 16. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

In a letter dated September 9, 1974, you have asked me whether the 
following question is one of public policy in accordance with G. L. c. 
53, § 19: 

"Shall your Representative be instructed to vote for the 
passage of a bill which would prohibit smoking in public 
places except in designated areas specifically set aside for 
smokers?" 

It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G. L. c. 
53, § 19, see Op. Atty. Gen. 1970/71-9; see also 1939 Op. Atty. Gen., p. 
99, 1955 Op. Atty. Gen., p. 51. Consequently, the question may prop- 
erly be included on the election ballot in the Representative Districts 
which you have mentioned, namely, the 19th Middlesex and the 29th 
Suffolk. 

You have requested further that I supply your office with a suitable 
statement of the question for presentation on the ballot. It is my opinion 
that the question should be printed on the ballot in the following form: 
"Shall the Representative from this District be instructed 
to vote for the passage of a bill which would prohibit smoking 
in public places within the Commonwealth except in desig- 
nated areas specifically set aside for smokers?" 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 17. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

In a letter dated September 9, 1974, you have asked me whether the 



P.D. 12 59 

following question is one of public policy in accordance with G. L. c. 

53. § 19: 

"Shall the Representative from this district be instructed to 
vote for the passage of a comprehensive land use planning bill 
in order to protect areas of critical environmental concern?" 

It is my opinion that the question is an "important public question'" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G. L. c. 
53, § 19. see Op. Atty. Gen. 1970/71-9; see also 1939 Op. Atty. Gen., p. 
99, 1955 Op. Atty. Gen., p. 51. Consequently, the question may prop- 
erly be included on the election ballot in the Representative District 
which you have mentioned, namely, the 15th 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 following 
form: 

"Shall the Representative from this District be instructed to vote 
for the passage of a comprehensive land use planning bill in order 
to protect areas of critical environmental concern within the Com- 
monwealth?" 

Very truly yours, 
ROBERT H. QUINN 

Attornev General 



Number 18. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston. Massachusetts 02133 

Dear Secretary Davoren: 

In a letter dated September 9, 1974, you have asked me whether the 
following question is one of public policy in accordance with G. L. c. 
53, § 19: 

"Shall the Senator from this District be instructed to vote 
for the passage of a bill which would prohibit the private 
ownership of handguns except for collectors, licensed pistol 
clubs, and security personnel?" 

It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G. L. c. 
53, § 19, see Op. Atty. Gen. 1970/71-9; see also 1939 Op. Atty. Gen., p. 
99. 1955 Op. Atty. Gen., p. 51. Consequently, the question may prop- 
erly be included on the election ballot in the Senatorial District which 
you have mentioned, namely, the 3rd Middlesex and Norfolk. 



60 P.D. 12 



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 following 
form: 

"Shall the Senator from this District be instructed to vote 
for the passage of a bill which would prohibit the private 
ownership of handguns within the Commonwealth except for 
collectors, licensed pistol clubs, and security personnel?" 



Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 18A. October 23, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

Due to a clerical error, this Department inadvertently failed to con- 
sider a word contained in the ballot question which was certified in Op. 
Att'y Gen'l 74/75-18. As submitted, the question read: 

"Shall the Senator from this District be instructed to vote 
for the passage of a bill which would prohibit the private 
ownership of handguns except for collectors, licensed pistol 
clubs, police and security personnel?" 

The question should appear on the ballot in the following form: 
"Shall the Senator from this District be instructed to vote 
for the passage of a bill which would prohibit the private 
ownership of handguns within the Commonwealth except for 
collectors, licensed pistol clubs, police and security person- 
nel?" 

Very truly yours, 
WALTER H. MAYO, HI 

Assistant Attorney General 
Chief, Administrative Division 



P.D. 12 61 



Number 19. October 4, 1974 

Honorable John F. X. Davoren 

Secretdiy of the Commonwealth 

State House 

Boston. Massachusetts 02133 

Dear Secretary Davoren: 

in a letter dated September 9, 1974, you have asked me whether the 
following question is one of public policy in accordance with G. L. c. 
53, § 19: 

**Shall the Representative from this District be instructed 
to vote to approve the passage of a bill which would permit a 
two thirds vote of a city council or town meeting to override a 
school budget?" 

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 Op. Atty. Gen. 1970/1971-9; see also 1939 
Op. Atty. Gen., p. 99, 1955 Op. Atty. Gen., p. 51. Consequently, the 
question may properly be included on the election ballot in the Rep- 
resentative District which you have mentioned, namely, the 5th 
Plymouth. 

You have further requested 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 in the following form: 

"Shall the Representative from this District be instructed 
to vote to approve the passage of a bill which would permit a 
two-thirds vote of a city council, board of aldermen, town 
meeting or similar municipal governing body to override the 
budget submitted by a municipal school committee?" 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 20. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

In a letter dated September 9, 1974, you have asked me whether the 
following question is one of public policy in accordance with G. L. c. 
53, § 19: 



62 P.D. 12 

''Shall the Representative from this District be instructed 
to vote for the passage of a bill which would prohibit the pri- 
vate ownership of handguns except for collectors, licensed 
pistol clubs, police and security personnel?" 

It is my opinion that the question is an "important public question" in 
which "every citizen of the Commonwealth has an interest" and is 
therefore a question of "public policy" within the meaning of G. L. c. 
53, § 19, see Op. Atty. Gen. 1970/71-9; see also 1939 Op. Atty. Gen., p. 
99, 1955 Op. Atty. Gen., p. 51. Consequently, the question may prop- 
erly be included on the election ballot in the Representative Districts 
which you have mentioned, namely, the 15th Norfolk and 30th 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 following 
form: 

"Shall the Representative from this District be instructed 
to vote for the passage of a bill which would prohibit the pri- 
vate ownership of handguns within the Commonwealth ex- 
cept for collectors, licensed pistol clubs, police and security 
personnel?" 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 21. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

By letter dated September 9, 1974, 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 op- 
pose the building of nuclear power plants in Montague, 
Massachusetts?" 

Although the question presented is one of particular interest geo- 
graphically, it is my opinion that the question is also an "important pub- 
lic question," since it concerns itself with important environmental is- 
sues in which "every citizen of the Commonwealth has an interest," 
and it is therefore a question of "public policy" within the meaning of 
G. L. c. 53, § 19. See 1939 Op. Atty. Gen., pp. 99-100; 1955 Op. Atty. 
Gen., pp. 51-52; 1969 Op. Atty. Gen., pp. 37-38. See also, 8 Op. Atty. 
Gen. (1928), pp. 490, 491-492; 1965 Op. Atty. Gen., pp. 92-93. Conse- 



P.D. 12 63 

quently, the question may properly be included on the election ballot in 
the Senatorial District which you have mentioned, namely: Franklin - 
Hampshire - Hampden. 

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 22. October 4, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Davoren: 

In a letter dated September 9, 1974, you have asked me whether the 
following question is one of public policy in accordance with G. L. c. 
53, § 19: 

"Do you favor returning streetcars to the Park 
St.-Watertown line?" 

While the proposal involved in the question encompasses a small area 
geographically, the problem of public transportation is one of great con- 
cern to the Commonwealth in general. Therefore, keeping in mind the 
fact that the term "public policy" should be construed broadly, 8 Op. 
Atty. Gen., p. 490, 493, I conclude that the question satisfies the re- 
quirements of G. L. c. 53, § 19, see also 1969 Op. Atty. Gen., p. 37, 
1955 Op. Atty. Gen., p. 51. Consequently, the question may properly be 
included on the election ballot in the Representative District which you 
have mentioned, namely, the 26th Suffolk. 

You have further requested 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 following 
form: 

"Shall the Representative from this District be instructed 
to vote in favor of the passage of a bill which would require 
the Massachusetts Bay Transportation Authority (MBTA) to 
operate streetcars on its Park St.-Watertown line?" 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



64 P.D. 12 



Number 23. October 8, 1974 

Honorable Robert Q. Crane 
Treasurer of the Commonwealth 
Chairman, Massachusetts State 

Lottery Commission 
One Gateway Center 
Newton, Massachusetts 02158 

Dear Treasurer Crane: 

You have requested my opinion regarding the applicability of the sec- 
ond paragraph of St. 1974, § 26 to the members of the State Lottery 
Commission. The section provides as follows: 

"Notwithstanding any law to the contrary not later than 
September first, nineteen hundred and seventy-four, each 
secretariat shall submit to the committee on ways and means 
(both houses) schedules of their expected allotments to be 
approved by the secretary of administration and finance for 
each account for each allotment periods of fiscal nineteen 
hundred and seventy-five. Thereafter, at the end of each al- 
lotment period the secretary shall notify the secretary of ad- 
ministration and finance and the committees on ways and 
means of any accounts in which the total expended funds, en- 
cumbered funds, and other liabilities incurred but not yet en- 
cumbered, exceeds fund allotted to that account for the 
period covered for the year to date. Said total shall be called 
the total commitments. Starting January first, nineteen 
hundred and seventy-five, each secretary shall certify at the 
beginning of each allotment period that the current rate of the 
said total commitments can be continued without an addi- 
tional appropriation. Any secretary failing to submit such 
schedules, notifications, certification and reports as required 
above or the incurring of a total commitment in any account 
in excess of available funds will be deemed guilty of neglect 
and subject to a fine of not more than one thousand dollars or 
the removal from office. Any officer or employee of the 
commonwealth or the members of any departments, board, 
commission, institution or agency making an expenditure 
which exceeds an appropriation or an allotment made there- 
for without the approval of the secretariat, or fails to submit 
the necessary reports, schedules, notifications, certifications 
required in this section shall be deemed guilty of neglect and 
subject to a fine of not more than one thousand dollars or 
removal from office." (Emphasis supplied.) 

The first five sentences of the paragraph clearly apply only to sec- 
retariats. Additionally, 1 am of the view that the language "any mem- 
bers of any . . . commission" contained in the sixth sentence encom- 
passes only members of commissions within a secretariat. It appears 
that the provisions of the sentence were intended only to insure that the 



P.D. 12 65 

secretaries referred to in the preceding sentences of the paragraph re- 
ceive adequate information from those under their authority in order that 
they might comply with the duties outlined for them in the paragraph. 
As the Lottery Commission is not a secretariat and does not lie within a 
secretariat, but is instead within the Office of the State Treasurer, pur- 
suant to G. L. c. 10, § 23, I am of the view that none of the provisions of 
the second paragraph of section 26 is applicable to the Commission. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 24. October 11, 1974 

Honorable Malcolm E. Graf, P.E. 

Associate Commissioner 
Department of Public Works 
100 Nashua Street 
Boston, Massachusetts 021 14 

Dear Mr. Graf: 

In your letter to me dated September 9, 1974, you state as follows: 

"In compliance with G. L. Chapter 91 Section 1 1, the City 
of Boston filed a petition for the dredging of Muddy River 
which forms a portion of the Boston Back Bay Fens. The 
funding for this project is authorized by G. L. Chapter 822 of 
Acts of 1973 titled 'An Act Providing a Special Capital Out- 
lay Program for Shore Protection and Improvement to Rivers 
and Harbors.' 

"We are considering a proposal that this Department enter 
into a contract with the City of Boston and agree to pay one 
half of the costs and that the City be required to furnish a 
dredge and operator to do the work. 

"Since this would constitute an award of a contract without 
competitive bids, I seek your opinion and guidance as to 
whether this Department is authorized to make such an 
agreement under the circumstances." 

St. 1973, c. 822, § 1 authorizes the Department of Public Works to 
expend certain sums "for the purpose of projects for the improvement of 
rivers, harbors, tidewaters, foreshores and shores along a public beach, 
as authorized by section eleven of chapter ninety-one of the General 
Laws . . . ; provided, that all expenditures . . . shall be upon condition 
that at least fifty per cent of the cost is covered by contributions from 
municipalities or other sources, except that in the case of dredging 
channels for harbor improvements at least twenty-five per cent of the 
cost shall be so covered ..." 

G. L. c. 91, § 11 delineates the authority of the Department of Public 
Works with respect to the "improvement, development, maintenance 
and protection of tidal and non-tidal rivers and streams, great ponds. 



66 P.D. 12 

harbors, tide waters, foreshores and shores along a public beach . . . 
[I]n pursuance of the work authorized, [it] may construct, reconstruct, 
alter and repair bridges, culverts, conduits, pipes, walls and dams, and 
may do such other incidental work as may be deemed necessary for the 
improvement and safety of waterways." 

The work involved in dredging Muddy River is obviously a "public 
work" within the definition of G. L. c. 30, § 39M(a) which requires the 
Commonwealth or any "county, city, town, district or housing author- 
ity," with respect to contracts relating to public works, to require com- 
petitive bids if the cost is estimated to be more than certain specified 
amounts. However, subsection (d) of said § 39M provides: 

"(d) the provisions of this section shall not apply ... (3) to 

any transaction between the commonwealth and any of its 

political subdivisions ..." 
The phrase "political subdivisions" clearly includes a city. Compare G. 
L. c. 149, § 29 which requires "[ojfficers or agents contracting in behalf 
of the commonwealth or in behalf of any county, city, district or other 
political subdivision or other public instrumentality" for the perfor- 
mance of certain work on "public buildings or other public works" to 
obtain bonds in specified amounts to secure payment by the contractor 
and subcontractor for labor and materials. 

It is my opinion, therefore, that the Department may enter into the 
contract with the City of Boston under the terms specified without com- 
petitive bids. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 25. October 11, 1974 

Major General Vahan Vartanian 

The Adjutant General 

The Commonwealth of Massachusetts 

905 Commonwealth Avenue 

Boston, Massachusetts 02215 

Dear General: 

I am answering your letter of June 7, 1974, in which you request my 
opinion on the matters set forth below, and in which letter you have 
stated the following facts: 

"The office of Major General, Chief of Staff, Massachusetts Air Na- 
tional Guard is presently held by Charles W. Sweeney, Major General, 
who was appointed to that office on 10 October 1969 by the, then Gov- 
ernor, as Commander in Chief of the 'Armed Forces of the Common- 
wealth.' Charles W. Sweeney thereafter received his federal recognition 
on 12 May 1970. He has occupied this office to the present date." 



P.D. 12 67 

You have asked me to advise (1) whether G.L.c. 33, §26 is applicable 
to the Massachusetts Air National Guard as well as to the Army Na- 
tional Guard; (2) whether G.L.c. 33, § 26 is specifically applicable to 
Charles W. Sweeney. Major General. Chief of Staff, Massachusetts Air 
National Guard; and (3) whether G.L.c. 33. §26 controls the term of of- 
fice of General Sweeney, as opposed to U.S.C. Title 10, §88852, and 
thereby limits his term of office to five years from his original date of 
appointment, by the then Governor as Commander in Chief, on 10 Oc- 
tober 1969. 

(1) General Laws c. 33, §26 provides, in part, that: 

"The term of office of a major general of the line shall be 
five years. The term of office of a brigadier general of the line 
shall be six years. The term of office of a colonel, command- 
ing an organization, except an air medical group or any army 
medical battalion shall be seven years. The terms of office 
aforesaid shall commence from the date of appointment. Of- 
ficers so appointed shall be ineligible for reappointment in the 
same office ..." 
General Laws c. 33. §10 establishes the Air National Guard and the 
Army National Guard as components of the "armed forces of the com- 
monwealth." Both §10 and §26 were inserted by St. 1954, c. 590. while 
§26 was amended by St. 1962, c.226. Clearly, then, both the Air and 
Army branches of the National Guard were within the cognizance of the 
legislature at the time that §26 was impliedly reenacted in 1962. 

It is a well settled rule of statutory construction that statutes must be 
construed as they are written, without abandoning reason and common 
sense. Brennen v. Board of Election Commissioners of the City of 
Boston, 310 Mass. 784 (1942). G.L.c. 33. §26, is only exclusive as to 
branch of service in sentence 3. Otherwise, §26 does not provide a gen- 
eral exclusion of Army or Air National Guard Officers. It has been rec- 
ognized that there are "line officers of various rank, including major 
general, within the Army National Guard." 1969-70 Op. Atty. Gen. p. 
1 10.1 1 1. The only other tenure statutes in chapter 33 are specifically lim- 
ited to enumerated officers of the "State Staff," G.L.c. 33, §15 and 
"Aides-de-Camp" of the Commander in Chief. G.L.c. 33, §14. 

For these reasons, then, it is my opinion that G.L.c. 33, §26 is appli- 
cable to the Massachusetts Air and Army National Guards. 

(2) The answer to your second question depends upon whether 
Charles W. Sweeney. Major General. Chief of Staff, Massachusetts Air 
National Guard, is a "major general of the line" as that phrase is used 
in the first sentence of G.L.c. 33, §26. 

The phrase "of the line" or the expression "line officer," has never 
been defined by the courts or the legislature of our Commonwealth, al- 
though it has frequently been employed. See, e.g. G.L.c. 33, §23 
("major general of the line, commanding a division"); St. 1908, c. 604 
(93) ("Brigadier general of the line" limited to 5 years of service and 
barred from reelection); St. 1876, c. 204 (5) ("line officers" shall not 
serve in commission longer than 5 years); St. 1874, c. 320 (referring to 



68 P.D. 12 



the election of "officers of the line"); Opinion of the Justices, 132 Mass. 
600,601 (1882) (impliedly equating "line officers" as used in St. 1876, c. 
204 (5) with the phrase "officers of the militia"); 1969-70 Op. Atty. Gen. 
1 10,1 1 1 (acknowledging that the major general, commanding the 26th In- 
fantry Division of the Army National Guard was a "line officer"). I Op. 
Atty. Gen., 1897, p. 449 (no independent significance attached to use of 
the phrase "line officer"). However an examination of G.L.c. 33 in its 
entirety and an analysis of its statutory predecessors, clearly reveals that 
the legislature imparted a technical meaning, as opposed to any common 
usage, to the phrase "of the line." C/ Opinion of the Justices 313 Mass. 
779 (1943). At the time when the phrase "of the line" first appeared in 
the statutes of our commonwealth, its meaning was well settled. Line 
officers were considered commanders of combat units of the land and 
naval forces as opposed to staff officers. 6 Oxford English Dictionary 
(1961) 380; Websters 3rd New International Dictionary; Dictionary of 
U.S. Army Terms (Army Reg. 310-25, June 1972); Air Force Dictionary 
(ed. 1956). Yet the phrase "line officer" is also frequently employed in 
current regulations of the United States Air Force and the Air National 
Guard, in the context of combat command and specialty operations. Air 
Force Regulations [AFR] 35-54 §§23 (b) (1) &24; AFR 36-15 §§2-13 (d) 
(1) & 3-7(d); Air Naional Guard Regulation [ANGR] 36-02 §§4 (h) & 
5(2) & 6(a) (b) (3) & 12(b) (2) & 15 (a) & 16. It is also clear from examin- 
ing St. 1908, c. 604 (93), St. 1876, c. 204 (5) that G.L.c. 33, §26 was 
designed by our legislature to insure the succession of command in com- 
bat units, such as the 26th Infantry Division. It has been noted that a 
determination of legislative intent as ascertained from viewing an entire 
Act, is the best ground for the exposition of a statute. Cleaveland v. 
Norton 60 Mass. (6 Cush.) 380 (1850). In this respect, an examination of 
G.L.c. 33, §23 is enlightening. Section 23 in five places employs the 
phrase "major general of the line commanding a division;" §23 is clearly 
referring to the commander of a combat unit (§23(5) ); and §23 is the 
only other section of G.L.c. 33 to employ the phrase "of the line." It 
should also be noted that prior to December of 1967, the table of organi- 
zation of the Army National Guard in the Commonwealth provided for 
only one major general who was the commander of the 26th Infantry 
Division, and who was. thus, clearly a line officer. 1969-70 Op. Atty. 
Gen. 110,111. However, Charles W. Sweeney, Major General, Chief of 
Staff, Massachusetts Air National Guard is not a combat division com- 
mander. In connection therewith, it must be noted that "statutes do not 
govern situations not within the reason of their enactment and giving rise 
to radically diverse circumstances presumably not within the dominating 
purpose of . . . [their framers]." Commonwealth v. Welosky, 276 Mass. 
398, 403, cert. den. 284 U.S. 684. 

In conclusion, then, it is my opinion that G.L.c. 33, §26 is not appli- 
cable to Charles W. Sweeney, major general. Chief of Staff. Mas- 
sachusetts Air National Guard. 

In reply to question three, my answer to question two disposes of the 
applicability of §26 to Major General Sweeney as to term of office. 



P.D. 12 69 



Since your question posed the alternative on the basis of applicable fed- 
eral law, I assume therefore, that U.S.C, Title 10 is controlling. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 26. October 16, 1974 

The Honorable Francis W. Sargent 

Governor 

The Conunonwealth of Massachusetts 

Executive Department 

State House 

Boston, Massachusetts 02133 

Dear Governor Sargent: 

This is in reply to your request for an opinion whether you may ap- 
point, as Medical Examiner in District Eight of Norfolk County (Brook- 
line), a medical doctor who is a resident of Newton Center, in the 
County of Middlesex, who maintains an office in Brookline, who has 
staff privileges at four hospitals in Brookline, and who holds an appoin- 
tive public office in Brookline. 

The appointment of medical examiners is controlled by the provisions 
of G.L.c. 38, § 1, as amended most recently by St. 1973, c. 859, §§ 1,2. 
That section provides in part that "[t]he governor, with the advice and 
consent of the council, shall appoint for terms of seven years able and 
discreet men, learned in the science of medicine, as medical examiners 
in and for their respective counties and as associate medical examiners 
in and for their respective districts in counties divided into districts, 
otherwise in and for their respective counties, in number as follows 
. . ." The question arises whether the statute establishes a residency re- 
quirement for appointment of an associate medical examiner because of 
the words "in and for their respective districts duties." One of my pred- 
ecessors ruled that in 1946 the statutory language imported a require- 
ment of residency, and 1 am in agreement with that conclusion. 1946 
Op.Atty. Gen'l. 1113. I therefore answer your question in the negative. 

Yours very truly, 

ROBERT H. QUINN 

Attorney General 

Number 27. October 23, 1974 

Mr. Edward W. Powers 
Director of Civil Service 
294 Washington Street 
Boston, Massachusetts 02108 

Dear Mr. Powers: 

You have requested my opinion as to who is in the proper appointing 



70 P.D. 12 

authority for the position of Woburn City Engineer. You have indicated 
that a controversy exists as to whether the Mayor or the City Council is 
the appointing authority for the aforementioned position. I therefore 
further note that the information you have supplied to me indicates that 
the Woburn City Council passed an ordinance, dated October 7, 1971, 
which purports to vest the Woburn Superintendent of Public Works with 
the authority to appoint the City Engineer. 

The Charter for the City of Woburn broadly states, in pertinent part, 
as follows: 

"The mayor shall have sole power of appointment to all the 
municipal offices established by or under this act, unless 
herein otherwise provided." St. 1897, c. 172, §23. 
The Charter also established a Board of Public Works and vested the 
members of said Board with the authority to employ "engineers, 
superintendents, clerks and such other assistants as they may deem 
necessary." St. 1897, c. 172, §33. Subsequently, the Charter was 
amended to abolish the Board of Public Works and to provide that the 
powers, duties and liabilities conferred on the Board of Public Works 
were transferred to the City Council with the exception of certain enum- 
erated supervisory duties which were transferred to the Superintendent 
of Public Works. St. 1897, c. 172, as amended by St. 1914, c. 372, §§ 1, 
2. 

In Forbes v. Kane, 316 Mass. 207, 212, the Supreme Judicial Court 
interpreted the amended Woburn Charter as vesting the City Council 
rather than the mayor with the authority to appoint the inspector of 
wires and gas for the City of Woburn. The Forbes court examined the 
enumerated duties delegated to the Superintendent of Public Works and 
concluded that those duties did not include the supervision of wires. 
Specifically, the Court stated that "[t]he supervision of wires, as distin- 
guished from poles, was thus given to the council along with the power 
to employ the assistants enumerated in §33 of the charter." Id. at 212. It 
is unclear from this language whether the Forbes court interpreted the 
Charter amendment as vesting in the City Council the power to appoint 
all engineers, superintendents, clerks and assistants to position which 
had previously been filled by appointments by the Board of Public 
Works or whether the City Council was given power to appoint only to 
those positions within the Public Works area which were not subject to 
the supervision of the Superintendent of Public Works, such as the posi- 
tion of Inspector of Wires. In examining the original charter provision, 
St. 1897, c. 172, §33 and the amendment thereto, St. 1914, c. 372, 1 ob- 
serve that all the duties and powers conferred upon the Board of Public 
Works under the original charter were expressly transferred by the char- 
ter amendment of 1914 to the Superintendent of Public Works except for 
the power to supervise trolley wires and the power to employ engineers, 
superintendents, etc. Therefore it is evident that since the power to ap- 
point engineers, superintendents, etc., was not enumerated as a power 
transferred to the Superintendent of Public Works in the Charter 
Amendment of 1914, that power was thus transferred to the City Coun- 



P.D. 12 71 

cil. St. 1897, c. 172, §33, as amended by St. 1914, c. 372, §2. Further it is 
my opinion that the power transferred to the City Council in 1914 en- 
compassed the power to appoint the City Engineer. 

In summary, it is my opinion that the Woburn City Charter vests the 
Woburn City Council with the power to appoint the City Engineer. Any 
attempt to divest the City Council of that power by ordinance is invalid. 
See Mass. Const. Art. II, as amended by Art. LXXXIX, §6. See also 
Board of Appeals of Hanover v. Housing Appeals Committee, 1973 
Mass. Adv. Sh. 491, 506. Further in the absence of a statute, the City 
Council has no authority to delegate that power to the Superintendent of 
Public Works or to the Mayor. Forbes v. Kane, supra. See also 
Attorney General v. McCahe, 172 Mass. 417, 420. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 28. October 29, 1974 

The Honorable Arnold R. Rosenfeld 

Chairman, Criminal History Systems Board 

80 Boylston Street 

Room 740 

Boston, Massachusetts 02116 

Dear Chairman Rosenfeld: 

You have requested my opinion regarding the following question:, 
"Do G.L.c. 6, §§167-178 inclusive, in conjunction with 
G.L.c. 4, §7 and G.L.c. 66, §10 as amended by St. 1973, c. 
1050, §§ 1 and 3 respectively, prohibit the Registry of Motor 
Vehicles from disseminating in any manner criminal offender 
record information as defined in G.L. c. 6, §167 to parties not 
certified by the Criminal History Systems Board pursuant to 
G.L.c. 6, §172?" 

General Laws c. 6, §172 prohibits the dissemination of "criminal of- 
fender record information," as that information is defined by G.L. c. 6, 
§167, to parties not certified by the Board pursuant to §172. The prohibi- 
tion clearly applies to the Registry of Motor Vehicles. General Laws c. 
66, §10, requiring disclosure of "public records" to any individual seek- 
ing such disclosure, does not affect the prohibition of §172, because the 
definition of "public records" contained in G.L. c. 4, §7 as amended by 
St. 1973, c. 1050, §1 excludes records "specifically or by necessary im- 
plication exempted from disclosure by statute." 

To the extent that my opinion to the Registry of August 28, 1970 
would indicate that disclosure by the Registry of the kind mentioned 
above is authorized, that opinion has been superseded by the subsequent 
enactment of St. 1972, c. 805, §1 and the amendment of G.L. c. 4, §7 by 
St. 1973, c. 1050, §1. 



72 P.D. 12 

Accordingly, I answer your question in the affirmative. 

Yours very truly, 
ROBERT H. QUINN 

Attorney General 

Number 29. October 29, 1974 

The Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 

Dear Secretary Davoren: 

You have asked my opinion on the following three questions, concern- 
ing proper implementation of G.L. c. 46, § 1 relating to the recording of 
births: 

(1) May the birth of a legitimate child be recorded under the hyphen- 
ated combination of the maiden name of the mother and the surname of 
the father upon request of both parents? 

(2) If the answer to the above question is "yes," then in which order 
should the surnames appear? 

(3) Since our present standard certificate of birth asks for the first, 
middle, maiden and present name of the mother and it is the mother's 
contention that her legal name is her maiden name since she did not take 
on her husband's surname upon marriage, may the maiden name of the 
mother, rather than the surname of her husband, be recorded on this 
birth record as her present surname without the necessity of her petition- 
ing a probate court for a legal change of name from her married name to 
her maiden name? 

For the reasons which follow, the answer to your first question is 
"yes." The birth of a legitimate child may be recorded under the hy- 
phenated combination of the maiden name of the mother and the sur- 
name of the father upon request of both parents. The answer to this 
question is largely determined by the prior Opinion of the Attorney 
General rendered to you on January 24, 1974. 

The Opinion held that the birth of a legitimate child to a married 
woman who had retained her maiden name through legal proceedings 
could be recorded with the mother's surname as the baby's surname. 
That Opinion noted that G.L. c. 46 § 1 simply requires that the 
"names" of the baby be put on the birth record, and does not contain 
any requirements as to what those "names" should be. The Opinion 
stated that it was by custom and not by law that a baby is usually given 
its father's surname and that it was not inconsistent with the law of 
names for a legitimate child not to bear its father's surname. 

The Opinion stated "Massachusetts law does not require parents to 
hold a common surname and cannot, consequently, be said to have ex- 
pressed a strong interest in requiring a baby, as a matter of law, to share 



P.D. 12 73 



its father's surname." In the situation you present the baby would have 
a surname held in common with its parents insofar as its surname is 
composed of a combination of the parents' surnames. In the prior Opin- 
ion you were advised that a baby could be named with its mother's 
rather than its father's last name. 

It would also be consistent with the common law of names for a baby 
to be named with the hyphenated surnames of its parents. Massachu- 
setts recognizes a common law right in a person to change his or her 
name provided the change is not motivated by fraud. Buvarskv, 
Petitioner, 322 Mass. 335. 338 (1948); Merolevitz. Petitioner, 320 Mass. 
448. 450 (1946); Mark v. Ka/in, 333 Mass. 517. 520-521 (1956). It is con- 
sistent with such a right that parents retain the right to name their child 
as they choose so long as there is no intent to defraud. The fact that 
parents wish to name their child with a surname which is a hyphenated 
combination of the parents' surname certainly does not indicate any in- 
tent to defraud. 

In summary, under G. L. c. 46, § 1 town clerks must record informa- 
tion concerning births, including the "names" of the child. Neither that 
statute nor any other statute requires that a baby be named in any par- 
ticular way. The naming of a baby is a matter for parents, to be exer- 
cised in compliance with the law. The common law would allow both 
parents to name their child with a surname which combines the surname 
of the two parents. There is no power in a town clerk to refuse to record 
a birth name which complies with the principles of law set forth in this 
Opinion and the prior Opinion. However, this Opinion does not deter- 
mine any questions arising out of a dispute between parents over the 
name of the child. 

For the reasons stated above, the answer to your second question is 
that the surnames should appear on the birth record in the sequence 
which the parents establish in naming the child.' 

The answer to the third question is "yes." A woman does not upon 
marriage abandon her surname and assume her husband's surname 
without an express intent to do so. See Opinion of the Attorney General 
to the Commissioner of the Massachusetts Commission Against Dis- 
crimination, September 16. 1974. a copy of which is attached hereto. 

Very truly yours, 

ROBERT H. QUINN 

Attornex General 



'The Regi^lriir of Vital Slatislks and the various City and Town Clerks may wish to utilize their powers by cross- 
indexing such births under both surnames, in the interest of avoiding confusion and ensuring a minimum of problems in 
searching for birth records. 



74 P.D. 12 

Number 30. November 6, 1974 

Honorable Gregory R. Anrig 

Commissioner of Education 

182 Tremont Street 

Boston, Massachusetts 02111 

Dear Commissioner Anrig: 

I have your letter of September 23 in which you have requested my 
opinion as to whether the Board of Education may lawfully refuse to 
fund a certain request of the City of Newton for proposed site work at 
Newton North High. 

Certain facts are pertinent: 

1. Prior to May 27, 1969, the City of Newton submitted preliminary 
plans to the Board of Education in connection with their application for 
state assistance for a proposed construction project at Newton North 
High School. 

2. These preliminary plans did not include a site development plan. 
The City has never submitted a site development plan despite numerous 
requests of the Board that it do so. 

3. On May 27, 1969, the Board of Education approved a school plan 
project proposal for the Newton North High School on the basis of the 
preliminary plans. 

4. The City of Newton has recently requested funding approval by the 
Board of Education for proposed site work at Newton North High. 

These facts must be considered in light of the express language of the 
controlling statute, St. 1948, c. 645, as amended. This law describes the 
Commonwealth's school building assistance program and the duties and 
responsibilities of the various parties. 

I assume that the approval of the City's proposed project entered by 
the Board on May 27. 1969, is the same approval contemplated by sec- 
tion 8 of c. 645, as amended. Once notice of this section 8 approval has 
been issued by the Board, there is no express provision of the statute 
which would allow the subsequent recision of that approval. The Legis- 
lature has required that the Board adhere to a strict procedure in acting 
upon applications for school building assistance. See St. 1948, c. 645, as 
amended, § 8 (second paragraph). A Board refusal to honor a request for 
funds for an approved project would so contradict the express direction 
of the Legislature that the Board take prompt action upon all applica- 
tions for assistance, that it would be unlawful. Furthermore, approval by 
the Board is a significant event; when a locality receives notice of ap- 
proval, substantial legal consequences immediately ensue: the city then 
possesses the authority to borrow an amount equal to the estimated 
grant. See St. 1948, c. 645, as amended, § 8 (fourth paragraph). There- 
fore, 1 must answer your question in the negative. 

This opinion should not be construed to in any way limit the Board's 
power to insist that whatever plans or information it deems necessary 
accompany a city's application for school building assistance. See St. 



P.D. 12 75 



1948. c. 645, as amended, § 7 (last sentence). Nor do I imply that the 
Board's power to review local proposals to determine whether they are 
in "the best interests" of the community is in any way restricted. See 
St. 1948, c. 645, as amended, § 8 (first paragraph). See also, the sugges- 
tions in Lawrence Kotin, "Equal Educational Opportunity: The Emerg- 
ing Role of the State Board of Education," 50 BU Law Review 211, 
especially part 3, "Powers in Directing Construction," at pp. 221-222. 

1 also reaffirm my position that the Board possesses significant inci- 
dental powers in addition to those expressly conferred upon it by this or 
any other statute. Cf. School Committee of New Bedford v. 
Commissioner of Education, 349 Mass. 410, 414. ("The enumeration 
and grant of the Commissioner's powers in G. L. c. 69, by implication 
give to him a substantial range of incidental authority to do in an ordi- 
nary and reasonable manner those things required for the efficient exer- 
cise of the powers and performance of the duties." (citations omitted) ). 
See generally, Op. Atty. Gen., 74/75-1, July 2, 1974. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 31. November 6, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Mr. Secretary: 

You have requested my opinion with respect to four questions con- 
cerning your powers and duties under G. L. c. 207, §§ 38 and 39, which 
govern persons authorized to solemnize marriages within the Common- 
wealth. As background for your questions, you indicate that an influx of 
new religious groups into the Commonwealth and attendant requests for 
permission to perform marriages have posed problems for you whether 
designated persons affiliated with such religious groups or churches may 
properly perform marriages. Accordingly, you pose the following ques- 
tions: 

"1. What is considered a church or other religious organi- 
zation within the meaning of the second paragraph of § 38? 

"2. What is the exact role of the state secretary in the 
statutory scheme of § 38? Is he merely to act as the recipient 
of information from any groups wanting to deposit informa- 
tion about themselves and their representatives? Or is he to 
exercise some judgment and discretion as to who may solem- 
nize marriages in Massachusetts and who may not? 

"3. If the state secretary has the power to determine who 
may solemnize marriages, by what standards is that power to 
be exercised? Are published regulations either permitted or 



76 P.D. 12 

required by the statute? If so, who is to issue them and need 
anyone else approve them? 

"4. What is the effect of the exclusion from § 39 of the gen- 
eral clause of § 38? Need a non-resident fall under one of the 
enumerated categories to qualify, or can a non-resident from 
a minor sect or denomination ever qualify? Or are non- 
residents from minor sects included in § 38?" 
I will treat your questions seriatim. 

I. With respect to your first question, the Legislature has not provided 
definitions of the terms "church" and "religious organization" as those 
terms are used in G. L. c. 207, § 38. In the absence of a specific statu- 
tory definition, I decline to provide one myself by way of an opinion for 
several reasons. It is settled that the Attorney General is not required to 
express an opinion on any question unless sufficient facts are stated so 
as to enable him to come to a definite conclusion on the facts stated. 3 
Op. Atty. Gen'l 425. Your question does not state facts with respect to 
a particular group or organization and ask whether that particular or- 
ganization comes within the meaning of G. L. c. 207, § 38. Rather, it 
asks in the abstract for a definition of a religious organization. Further- 
more, your request intimately involves constitutional considerations, 
and, as a rule, "the Attorney General does not advise officers . . . upon 
constitutional questions unless such advice is clearly required to enable 
such officers ... to discharge the duties required of them by law." 6 
Op. Atty. GenM 648, 649. As I will indicate in responding to the other 
questions propounded by you, I do not believe advice with respect to 
the constitutional question of "what is considered a church or other re- 
ligious organization" is "clearly required" to enable you to discharge 
the duties required of you by § 38. Accordingly, I beg to be excused 
from answering your first question. 

II. Because of the constitutional implications in the area of freedom of 
religion occasioned by the question of which religious organizations may 
solemnize marriages, it is my opinion that, absent any express and un- 
equivocal grant of authority to the contrary, you, as Secretary, are not 
permitted to exercise any substantive judgment or discretion as to who 
may solemnize marriages in Massachusetts. I can find no legislative 
grant to that effect. Moreover, the nature of the functions to be per- 
formed by the Secretary are administrative or ministerial rather than 
substantive. Cf. 1968 Op. Atty. Gen'l 51. He may exercise only that 
kind and degree of discretion and judgment which is expressly delegated 
to him by statute. General Laws, c. 207, § 38 provides, in pertinent part: 

"[A marriage] may be solemnized according to the usage of 
any other church or religious organization which shall have 
complied with the provisions of the second paragraph of this 
section." (Emphasis supplied.) 
The "second paragraph" referred to above provides: 

"Churches and other religious organizations shall file in the 
office of the state secretary information relating to persons 
recognized or licensed as aforesaid, and relating to the usages 



P.D. 12 77 

of such organizations, in such form and at such times as the 

secretary may require." 
Under § 38, the Secretary may properly require the names of those indi- 
viduals who are recognized by their respective religious organizations as 
authorized to solemnize marriages, and he may also require some infor- 
mation describing the method or ceremony of solemnization utilized by 
the particular religious organization. Beyond such information, under § 
38, the only other requirements the Secretary may establish for the sol- 
emnization of manages by religious organizations located in Massachu- 
setts are requirements which are purely ministerial or administrative 
such as the type of form to be used in the recording of vital information 
and the time by which or the frequency with which such forms must be 
filed or updated. 

As a result of the statutory language involved and the reasons cited 
above, I conclude that the Legislature did not, under § 38, intend that 
the Secretary exercise any discretion or judgment in any substantive 
sense as to who may solemnize marriages. 

III. With respect to your third question, there is no need to respond to 
it since I have already stated that the Secretary does not have the power 
under § 38 to determine who may solemnize marriages. 

IV. Your fourth question essentially asks which non-residents may 
solemnize marriages within the Commonwealth. Both sections 38 and 39 
deal with non-residents in a somewhat overlapping fashion. Section 38 
permits non-resident ministers of the gospel of established churches and 
non-resident Ethical Culture Leaders to solemnize marriages, and sec- 
tion 39, in addition to specifying those two categories of persons, adds 
non-resident rabbis and non-resident representatives of a Spiritual As- 
sembly of the Baha'is. 

Although the concluding clause of the first paragraph of section 38 
(which you refer to as the "general clause of section 38") does permit 
the solemnization of marriages "according to the usage of any other 
church or religious organization . . . ," that clause, in my opinion, re- 
lates primarily to usage and, in any event, only confers rights to solem- 
nize marriages on residents who are associated with "any other church 
or religious organization ..." The failure of the Legislature to mention 
non-residents in the last clause of the first paragraph of section 38 re- 
quires me to conclude that non-residents may solemnize marriages only 
if they come within one of the enumerated categories of persons in sec- 
tions 38 or 39. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



78 P.D. 12 

Number 32. November 20. 1974 

Honorable Lewis S. W. Crampton 

Commissioner of Community Affairs 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Crampton: 

By letter dated this day, you have requested an opinion whether un- 
expended funds now held by the County Treasurer of the County of 
Dukes County, for and on the account of the Planning and Economic 
Development Commission for the County of Dukes County must be 
turned over to the Martha's Vineyard Commission, the latter organized 
under the provisions of St. 1974, c. 637. You state in your opinion re- 
quest that the County Treasurer now holds approximately nineteen 
thousand dollars of state funds and fifty-eight hundred dollars of grants 
from the United States Department of Housing and Urban Develop- 
ment, and the Treasurer is apparently uncertain whether such funds may 
properly be turned over to the new Commission. 

The funds presently held by the County Treasurer are in the nature of 
"public" contributions, which the Planning and Economic Development 
Commission was authorized to accept by virtue of the provisions of St. 
1966, c. 690, § 3. Such funds are clearly within the classification of 
"monies heretofore received from any source by the Dukes County 
Planning and Economic Development Commission for the performance 
of its duties and remaining unexpended on the date of the [expiration of 
the old Commission]." St. 1974, c. 637, § 19. 

Accordingly, it is my opinion that the funds which you have described 
which are presently held by the County Treasurer of the County of 
Dukes County should be turned over to the new Martha's Vineyard 
Commission on November 21, 1974, the date on which the latter is to 
organize. 

Yours very truly, 
ROBERT H. QUINN 

Attorney General 

Number 33. December 2, 1974 

Honorable John F. Kehoe, Jr. 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Kehoe: 

You have requested my opinion as to the scope of your duties and 
responsibilities under St. 1972, c. 802 and subsequent legislation which 
amended various sections of the General Laws in establishing the State 
Building Code Commission. You have referred specifically to G. L. c. 



P.D. 12 79 

22. § 4A, as amended by St. 1974, c. 541, § 1, and this opinion is ad- 
dressed only to the specific questions which you have raised with regard 
to the proper interpretation of that statute. Accordingly, my opinion is 
limited to consideration of the following three questions: 

(1) What actual responsibility does the Commissioner of Public 
Safety have over local building inspectors? 

(2) Would the Commissioner be held responsible for a lack of 
proper inspections by local building inspectors? 

(3) What, if any, authority does the Commissioner have over 
local building inspectors? 

With regard to question one (1). G. L. c. 143, § 3, as amended by St. 
1973, c. 1152, § 1, clearly contemplates that primary responsibility for 
administering and enforcing the State Building Code rests with local au- 
thorities. However, the Commissioner of Public Safety is responsible, 
pursuant to G. L. c. 22. § 4A, as amended by St. 1974, c. 541, § 1, for 
making periodic reviews of all local inspection practices, for providing 
technical assistance and advice to local inspectors in implementing the 
State Building Code, and for supervising the enforcement of the Code 
through the Division of Inspection. The Commissioner's authority is 
further statutorily defined by G. L. c. 22, § 4A, as amended by St. 1974, 
c. 541. § 1, the statute to which you have made specific reference, as 
follows: 

"The commissioner may review, on his own initiative or on 
the application of any inspector, any action or refusal or fail- 
ure of action by any local inspector the result of which does 
not comply with the uniform implementation of the state 
building code; and may reverse, modify or annul, in whole or 
in part, such action ..." 

It is a fundamental principle of statutory construction that two statu- 
tory provisions, if reasonably possible, must be read together so as to 
make the section of the statute containing them a consistent and har- 
monious whole. Real Properties, Inc. v. Board of Appeal, 311 Mass. 
430, 436; DeBlois v. Commissioner of Corporations and Taxation, lid 
Mass. 437, 438. 

Consistent with this principle, it is my opinion that G. L. c. 22, § 4A, 
as amended by St. 1974, c. 541, § 1 does not provide the Commissioner 
of Public Safety with any direct responsibility for the conduct of local 
building inspections by local inspectors. Responsibility for local inspec- 
tions in the first instance lies with local authorities. G. L. c. 143, § 3, as 
amended by St. 1973, c. 1 152, § 1 . However, it is my opinion that G. L. 
c. 22, § 4A, as amended by St. 1974. c. 541, § 1, does permit the Com- 
missioner of Public Safety, in the exercise of his supervisory authority, 
to independently override any action or refusal to act on the part of local 
authorities and to independently enforce the State Building Code 
through use of state inspectors whenever he deems it necessary to en- 
sure implementation of the Code. See also, G. L. c. 143, § 3A, as 
amended by St. 1974, c. 541, § 12. 



80 P.D. 12 

With regard to question two (2), it would be inappropriate for me to 
speculate as to the ultimate legal liability, if any, of the Commissioner 
for the failure of local inspectors to conduct proper inspections. Accord- 
ingly, I must decline to render my opinion at this time with respect to 
question two (2). 

With respect to question three (3), it is my opinion that the Commis- 
sioner of Public Safety has no direct authority over local inspectors. 
General Laws, c. 143, § 3, as amended by St. 1973, c. 1152, § 1, pro- 
vides that local inspectors shall be employed by the various cities and 
towns within the Commonwealth and that the local building commis- 
sioner or inspector of buildings who shall be appointed by the chief ex- 
ecutive officer of each city or town, "shall report directly and be solely 
responsible to the person or public body that appointed him." In the 
face of this clear statutory language, I must conclude that local inspec- 
tors are not subject to the direct authority of the Commissioner, al- 
though, as noted, supra, decisions of local authorities regarding im- 
plementation and enforcement of the State Building Code may be inde- 
pendently overridden by the Commissioner of Public Safety pursuant to 
G. L. c. 22, § 4A, as amended by St. 1974, c. 541, § 1. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 34. December 2, 1974 

Honorable Thaddeus Buczko 

State Auditor 

State House 

Boston, Massachusetts 02133 

Dear Auditor Buczko: 

You have requested my advice as to whether G. L. c. 150E, the 
newly enacted Public Employee Bargaining Law, applies to the em- 
ployees of the Department of the State Auditor. I further understand 
that if my answer to your first question is in the affirmative, then you 
request my/t)pinion as to whether the Commissioner of Administration 
has the ri#it to represent himself as the "Employer" in questions relat- 
ing to the employees of the Department of the State Auditor. 

In order to respond to your first question, it is necessary that I ex- 
amine the statutory definition of employee, as that term is used in Mass. 
G. L. c. 150E. The definition of "employee," for purposes of the Col- 
lective Bargaining Law, is contained in G. L. c. 150E, § 1 which states, 
in pertinent part, as follows: 

" 'Employee' or 'public employee,' any person employed 
by a public employer except elected officials, appointed offi- 
cials, members of any board or commission, representatives 
of any public employer, including the heads, directors and 



P.D. 12 81 

executive and administrative officers of departments and 
agencies of any public employer, and other managerial em- 
ployees or confidential employees, and members of the militia 
or national guard and employees of the commission ..." 

My predecessor has interpreted the statutory definition of ''em- 
ployee" which was in force prior to the adoption of Mass. G. L. c. 
150E, as a broad and comprehensive definition which indicated a legisla- 
tive intention to include within its scope all employees of the Common- 
wealth except those specifically excluded. 1968-69 Op. Atty. Gen. pp. 
76, 78. The statutory definition of employee as set forth in Mass. G. L. 
c. 150E, § 1 by its own terms applies to "any person employed by a pub- 
lic employer." This statutory language indicates an even clearer legisla- 
tive intent than its predecessor to include within its scope all employees 
of the Commonwealth except those employees who are specifically ex- 
empted or excluded. Further, to interpret the statute as excluding sig- 
nificant numbers of state employees would completely frustrate the 
legislative intent and such a construction should be avoided. See 1969 
Op. Atty. Gen. pp. 86, 88. See also Board of Assessors of Newton v. 
Pickwick, Ltd., Inc., 351 Mass. 621, 625. 

I recognize that G. L. c. 11, § 6 provides that the "state auditor may 
appoint and remove such employees as the work of the department may 
require." However, it is my opinion that the broad definitional language 
of G. L. c. 150E, § 1 can be interpreted in a manner consistent with the 
powers of the State Auditor as set forth in G. L. c. 1 1, §§ 5, 6, to allow 
for the application of the new Collective Bargaining Law to at least 
some of the employees in the Department of the State Auditor. Obvi- 
ously, many of the employees within the Department will be exempt 
from G. L. c. 150E because their duties and responsibilities place them 
within the specific exclusions for appointed officials, managerial em- 
ployees, confidential employees, etc. However, the determination as to 
which employees may be properly excluded from the application of G. 
L. c. 150E is committed in the first instance to the Commonwealth's 
Labor Relations Commission. See G. L. c. 150E, § 3. Accordingly, my 
answer to your first question is that G. L. c. 150E can be applied to an 
undetermined number of employees within the Department of State Au- 
ditor. 

In regard to your second question, G. L. c. 150E, § I also defines the 
term "employer" as that term is used throughout G. L. c. 150E. As far 
as employees of the Commonwealth are concerned, the "employer" is 
the "commonwealth, acting through the commissioner of administra- 
tion." G. L. c. 150E. § 1. Thus, the Commissioner of Administration is 
the only person who is authorized to represent himself as the employer 
when bargaining with those employees of the Commonwealth who are 
covered by G. L. c. 150E. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



82 P.D. 12 

Number 35. December 2, 1974 

Honorable Louis J. Restighini, Director 

Division of Registration 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Restighini: 

You have requested my opinion on the following question: 

"Must a person be licensed as a master plumber or jour- 
neyman plumber in order to give, or to file, a bid for a plumb- 
ing installation?" 

Your question must be considered in light of the statutory language in 
G. L. c. 142, § 3, which states in pertinent part: 

"No person shall engage in the business of a master 
plumber or work as a journeyman or as an apprentice, nor 
solicit, by sign, listing or any other form of advertisement, 
work regulated or controlled by this chapter or by any ordi- 
nance, bylaw, rule or regulation made hereunder, unless he is 
lawfully registered, or has been licensed by the examiners as 
provided in this chapter." 

In summary, the answer to your question is a qualified "no." 

The only limitation on such an unlicensed person is that he may not 
perform the work of a journeyman. Power v. Board of Examination of 
Plumbers, 281 Mass. 1 (1932), or of a master plumber. Attorney General 
V. Union Plumbing Co., 301 Mass. 86 (1938). This restriction means that 
one not licensed as a journeyman may not advertise, bid, and then per- 
form the actual physical task, and one not registered as a master 
plumber may not do the actual labor or hire a journeyman plumber to 
work for him in performing the task. This limitation, however, does not 
mean that a non-licensed person may not bid on a plumbing installation. 
One of my predecessors stated that, "the aforementioned case [Attorney 
General v. Union Plumbing Co.. supra] recognizes, however, that a 
corporation may enter into a contract for the performance of such 
plumbing work, provided that the corporation contracts with a registered 
or licensed plumber to perform the work and does not itself enter into 
the business of a master plumber." 1960 Op. Atty. Gen., p. 40, 41. 

A master plumber is defined as a "plumber having a regular place of 
business and who, by himself or journeyman plumbers in his employ, 
performs plumbing work." G. L. c. 142, § 1. 

The person performing the actual installation, whether he is a jour- 
neyman or master plumber, must be an independent contractor and not 
an employee of the bidder. If he is an employee of the bidder, the em- 
ployer is considered to be in "the business of a master plumber," 
Attorney General v. Union Plumbing, supra, at 89, and therefore in vio- 
lation of G. L. c. 142, § 3. 



P.D. 12 83 

The defendant corporation in the Union Plumbing case, supra, was 
itself taking contracts for plumbing work, performing plumbing work by 
journeymen in its employ and committing the supervision of the work to 
a master plumber in its employ: 

"'[Tjhe defendant does not limit itself to ownership of the 
business, but through persons wholly under its immediate 
control actually performs the work of plumbing as a master 
plumber would perform it." 301 Mass. at 89. 
It was therefore in violation of G. L. c. 142, § 3. 

Subject to the limitations discussed, an unlicensed person or business 
may bid for a plumbing installation job. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 36. December 2, 1974 

Honorabte Charles J. Dinezio 

Executive Director 

State Building Code Commission 

141 Milk Street 

Boston, Massachusetts 02109 

Dear Mr. Dinezio: 
You have requested my opinion on the following question: 

May the State Building Code Commission amend the State 
Building Code without holding a public hearing in accordance 
with G. L. c. 30A, § 2 or § 3? 

The Commission's power to amend the Code is derived from G. L. c. 
23B, § 20, as amended, by St. 1974, c. 541, § 4. By the terms of G. L. c. 
23B, § 17, violation of the Code, including such amendments, is an of- 
fense punishable by fine or imprisonment, or both. General Laws, c. 
30 A, § 2 requires notice and a public hearing before making an amend- 
ment to any regulation so punishable. Accordingly, § 2 would require a 
public hearing before the Commission could amend the Code. As G. L. 
c. 30A, § 3, by its own terms, applies only to amendments not governed 
by § 2, the Commission need not follow the procedure outlined in § 3. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 37. December 4, 1974 

Honorable W. Norman Gleason, Director 

Office of Campaign and Political Finance 

8 Beacon Street 

Boston, Massachusetts 02108 

Dear Mr. Gleason: 
General Laws, c. 55, the Commonwealth's "Election Campaign 



84 P.D. 12 

Law," was amended extensively during the legislative session of the 
year 1973 by the enactment of St. 1973, c. 1173, which became effective 
on January 1, 1974. Among the various provisions enacted by c. 1173 is 
a new section, namely, § 2A of G. L. c. 55. Section 2A provides for the 
creation of the position of Director of Campaign and Political Finance 
and authorization for staff. 

Chapter 1 173 of the Acts of 1973 also amended various sections of G. 
L. c. 55 to place the custody of nearly all records concerning campaign 
expenditure reporting on the part of all candidates and political commit- 
tees in the hands of the Director, for the most part removing the filing 
from the Office of the State Secretary. 

At the state election on November 5, 1974, Question No. 5 on the bal- 
lot resulted from the filing in 1973 of an initiative petition for a law ef- 
fecting amendments of the above-mentioned G. L. c. 55. The initiative 
petition (House Document 5300 of 1974), filed before the enactment of 
St. 1973, c. 1 173 and therefore making no reference to the changes in G. 
L. c. 55 brought about by such enactment, adds to c. 55, as it existed in 
August, 1973. 

As a result of the affirmative vote on the initiative petition, several 
questions have arisen concerning the operation of the Office of the Di- 
rector of Campaign and Political Finance, which has been funded by the 
General Court by St. 1974, c. 313, c. 423, c. 431, Item No. 0531-0100 
until the end of the present fiscal year. Specifically, you have requested 
my opinion on the following questions: 

(1) Does the adoption by the voters on November 5, 1974, of 
the initiative measure creating a Corrupt Practices Commis- 
sion impliedly repeal the provisions of G. L. c. 55, § 2A, 
which created the Office of the Director of Campaign and 
Political Finance? 

(2) Does such adoption of the initiative measure restore cus- 
tody of the records referred to in St. 1973, c. 1 173 to the Of- 
fice of the Secretary of the Commonwealth? 

(3) Does the appropriation of funds by the General Court for 
the implementation of the Office of the Director of Cam- 
paign and Political Finance cease to be effective as of the 
date upon which the provisions of the initiative measure be- 
come operative? 

The initiative measure does not expressly provide for the elimination 
of the Office of the Director of Campaign and Political Finance, for the 
removal of records from the custody of the Director, or for the cessation 
of funding for the Office. The answer to your questions therefore turns 
on the application of the principle of implied repeal. The Supreme Judi- 
cial Court, in Doherty v. Commissioner of Administration, 349 Mass. 
687, at 690 (1965), has described that principle as follows: 

"Although the principle is one which the court, in defer- 
ence to the Legislature, does not regard with favor and ap- 
plies with caution, it has its proper place in judicial construe- 



P.D. 12 85 



tion of legislative enactments. It derives from the basic con- 
cept that it is the duty of the court to ascertain the legislative 
intent and to effectuate it. The test of the applicability of the 
principle of implied repeal is whether the prior statute is so 
repugnant to and inconsistent with the later enactment cover- 
ing the subject matter that both cannot stand. Commonwealth 
V. Bloomberg, 302 Mass. 349. 352. Repugnancy and inconsis- 
tency may exist when the Legislature enacts a law covering a 
particular field but leaves conflicting prior prescriptions unre- 
pealed. Homer v. Fall River, 326 Mass. 673, 676, and cases 
cited. Bond Liquor Store, Inc. v. Alcoholic Beverages Con- 
trol Commn. 336 Mass. 70, 74. 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. Sullivan 
V. Worcester, 346 Mass. 570, 573, and cases cited." 

Wherever possible statutes should be construed to be harmonious, 
Walsh V. Commissioners of Civil Service, 300 Mass. 244. 246 (1938). 

After analyzing in detail every section of the initiative measure in con- 
junction with the present sections of G. L. c. 55 as well as the sections 
of c. 55 as they existed in August of 1973, I have concluded that there is 
no repugnancy in the sections of relevance to your request. It is true 
that the measure will create a certain amount of overlap between the 
duties of the Director and those of the Corrupt Practices Commission as 
well as the Secretary of State. However, mere overlap of duties does not 
constitute repugnancy justifying a conclusion of implied repeal. Op. 
Atty. Gen. 1954/55, p. 84. 

In fact, were the initiative petition be seen to have repealed the 
Director's position, then the measure drafted and voted upon by the 
people to assure integrity in campaign financing and expenditures would 
have the practical effect of eliminating altogether any sanctions regard- 
ing campaigns of 1974. This would be an absurd conclusion to draw. 
Accordingly, I answer your first question in the negative. The position 
of Director, with duties attached thereto, persists, at least as to matters 
occurring before the effective date of the initiative petition. What power 
the Director has as to campaign acts subsequent to the effective date is 
altogether another question and one much more difficult to resolve. It is 
a question which would be better resolved by the Legislature. Since the 
Legislature will convene well before any substantial campaign activity is 
likely to occur, it is my hope that this branch will address itself to any 
inefficiency, confusion and overlapping which occurs as a result of pas- 
sage of both c. 1173 by the Legislature in 1973 and referendum petition 
number five by the voters on November 5, 1974. 

I reply to your second question by saying that no class of records cur- 
rently in the custody of the Director is removed therefrom, although 
some classes may be placed in the custody of the State Secretary as well 
as the Director and other new classes of records may be placed in the 



86 P.D. 12 

exclusive custody of the Secretary. I answer your third question in the 
negative. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 38. December 6, 1974 

Honorable Freyda Koplow 

Commissioner of Banks 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Koplow: 

You have asked my opinion as to whether a trust company chartered 
under the laws of Massachusetts may accept deposits of cash and 
checks at a table set up for that purpose on a university campus. The 
question must be considered in terms of the powers conferred upon trust 
companies by statute, (G. L. c. 172); certain sections of G. L. c. 167, 
(the chapter which includes laws relating to all banking operations), are 
also instructive. 

The Legislature defined the scope of the powers attaching to trust 
companies in its revision of the trust company law. St. 1961, c. 493. The 
controlling provision now appears as G. L. c. 172, § 4: 

"A trust company shall have all the powers and privileges 
specified in this chapter and whatever further incidental pow- 
ers may fairly be implied from those expressly conferred and 
such as are reasonably necessary to enable it to exercise fully 
those powers according to common commercial banking cus- 
toms and usages." 

A trust company shall therefore have (1) express powers, (2) inciden- 
tal powers as they may be fairly implied from those express powers, and 
(3) such powers as may be reasonably necessary to exercise its express 
and implied powers according to common commercial banking practice. 
The trust company's activity of receiving deposits on a university cam- 
pus is only lawful if authorized by reference to one of these enumerated 
categories of powers. 

No express provision of the General Laws gives a trust company the 
power to solicit and accept deposits in the manner which you have de- 
scribed. The Legislature has determined that: 

"Every trust company, in its banking department, shall, 
. . . have the following powers: 

1. To receive demand, time, and savings deposits upon 

such terms and conditions as may be agreed upon between 

the depositors and such corporation . . . " G. L. c. 172, § 48. 

There is nothing about the nature of this power to receive deposits 

which makes its exercise at a location apart from a trust company's ap- 



P.D. 12 87 



proved offices a necessary incident to it. Compare Chicopee Co-op. 
Bank v. Board of Bank Incorporation, 347 Mass. 744, 752-753 (1964) 
with First National Bank v. Missouri, 263 U.S. 640, 659 (1923). 

General Laws, c. 172, § 11(a), as amended by St. 1973, c. 1149, § 18, 
authorizes trust companies to operate branch offices if approved by the 
Board of Bank Incorporation and subject to certain limitations. This sec- 
tion does not confer a right upon a trust company to exercise its banking 
functions wherever it chooses, rather, it sets forth the circumstances in 
which the Board of Bank Incorporation might authorize a trust company 
to operate a branch office. The statute confers considerable power on 
the Board, and no power on a trust company, to determine whether the 
trust company shall be permitted to operate a branch office. Cf. First 
National Bank of Cape Cod v. Board of Bank Incorporation, (1972) 
Mass. Adv. Sh. 537. 

The whole system of statutory law which regulates the banking indus- 
try begins with the proposition that the honest and efficient management 
of banks is so vital to the public interest that their operation is made sub- 
ject to the close and careful supervision of the Commissioner of Banks. 
See, e.g., G. L. c. 167, §§ 1-10; G. L. c. 168, §§ 21-33; G. L. c. 172. §§ 
26, 48-68. The unauthorized acceptance of deposits at temporary quar- 
ters on a unversity campus is a departure from that policy of public 
oversight of the banking business and therefore inconsistent with the 
statutory scheme. "Statutes are to be interpreted, not alone according to 
their simple, literal, or strict verbal meaning, but in connection with 
their development, their progression through the legislative body, the 
history of the times, prior legislation, contemporary customs and condi- 
tions and the system of positive law of which they are a part ..." 
Commonuealth v. Welosky, 276 Mass. 398, 401 (1931). 

To answer your question: I find no power which might be fairly im- 
plied or necessarily incidental to a power conferred on a trust company 
by the statute, (G. L. c. 172), which would authorize a trust company to 
accept deposits on a university campus without your approval. It is 
therefore my opinion that the trust company has acted unlawfully and 
exceeded the powers conferred upon it by the banking statutes of the 
Commonwealth. I express no opinion as to whether or not you might 
authorize this kind of banking activity by a Massachusetts trust com- 
pany. But see G. L. c. 167, § 60. 

I should also note that in 1922, Attorney General Allen issued an 
opinion to the Commissioner of Banks on a similar question concerning 
the power of a trust company to institute a savings system at neighbor- 
ing schools. 6 Op. Atty. Gen. (1922), p. 657. That opinion proceeded 
from the premise that since the law required that a savings bank carry on 
its usual business at its banking house only, with certain notable excep- 
tions, (G. L. c. 168, § 25, now see G. L. c. 168, §§ 6, 24), and since the 
law regulating trust companies lacked a similar restriction then a trust 
company must be free to accept deposits at locations apart from its main 
office. Attorney General Allen's opinion was written long before the 
reorganization of the trust company law, (St. 1961, c. 493), and the addi- 



88 P.D. 12 



tion of G. L. c. 172, § 4, on which I have principally relied. I therefore 
find it not controlling. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 39, December 11, 1974 

Honorable Robert Q. Crane 

Treasurer and Receiver General 

Chairman, State Board of Retirement 

73 Tremont Street 

Boston. Massachusetts 02108 

Dear Treasurer Crane: 

You have requested my opinion as to the proper interpretation of G. 
L. c. 32, § 10(2) (b). Specifically, you seek advice in determining 
whether the statutory language of G. L. c. 32, § 10(2) (b), which refers 
to "members . . . who . . . fail of reappointment," pertains only to indi- 
viduals appointed by the Governor or to any individual failing of reap- 
pointment. 

General Laws, c. 32, § 10, on its face, evidences no legislative intent 
to restrict its application only to individuals who fail of reappointment 
by the Governor. Further, G. L. c. 32, § 1 defines the term "member" 
as, inter alia, "any employee included in the state employees' retire- 
ment system." Most importantly, the Supreme Judicial Court has 
clearly interpreted G. L. c. 32, § 10 to apply to persons who fail of reap- 
pointment by constitutional officers other than the Governor. Howard 
V. State Board of Retirement, 325 Mass. 211, 213. In Howard, the 
Court stated that reappointment to the position of First Deputy Secre- 
tary of the Commonwealth is made by the Secretary and that a person 
holding such a position who is not reappointed "comes within the cate- 
gory of those who fail of reappointment for whom retirement allowances 
are provided by c. 32, § 10 . . ." Id. at 213. 

In light of the clear statutory language of G. L. c. 32, § 10 (2) (b) as 
well as the Supreme Judicial Court's interpretation of that language in 
Howard v. State Board of Retirement, supra, it is my opinion that G. L. 
c. 32, § 10 (2) (b) applies to all members of the state employees' retire- 
ment system who fail of reappointment and not merely to individuals 
failing of reappointment by the Governor. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



P.D. 12 89 



Number 40. December 11, 1974 

William J. White, Executive Director 

Massachusetts Housing Finance Agency 

Old City Hall 

45 School Street 

Boston, Massachusetts 02108 

Dear Mr. White: 

You have asked my opinion whether under the provisions of G.L.c. 
23A App. you can continue to commit and close on projects on the as- 
sumption that not only those eligible for local city or town public hous- 
ing but also those eligible for the federal government's 236 interest sub- 
sidy program will receive the benefit of MHFA's interest subsidy pro- 
gram. 

For the following reasons, my answer to your question is in the affir- 
mative. 

Prior to 1973, the definition of low income persons contained in 
G.L.c. 23A App., §1-1 was: 

"... those persons and families whose annual income is 
less than the amount necessary to enable them to obtain and 
maintain decent, safe, sanitary housing without the expendi- 
ture of over twenty-five percent of such income for basic 
shelter rent plus the additional cost, if any, of heat and hot 
water." 
As you correctly indicate, this definition was broad enough to include, 
in most instances, those eligible for FHA's 236 interest subsidy pro- 
gram. 

In 1973, the Legislature amended this definition by providing that: 
" 'Low income persons or families' shall mean those 
whose annual income is equal to or less than the maximum 
amount which would make them eligible for units owned or 
leased by the housing authority in the city or town in which 
the project is located or, in the event that there is no housing 
authority, that amount which is established as the maximum 
for eligibility for low-rent units by the Department of Com- 
munity Affairs." St. 1973, c.1215, §15. 

It is important to note, however, that the preamble to this amendment 
states: 

"As used in this act the following words and terms shall 
have the following meaning unless a contrary intent is clearly 
indicated." (Emphasis supplied) 
A contrary intent is clearly indicated in the provisions of G.L.C.23A 
App., §1-13A, the second sentence of which commences: 

"Such program [interest subsidy] shall, pursuant to regula- 
tions adopted by the MHFA, provide, on behalf of the low 
income persons and families living in projects under this act 
. . ." (Emphasis supplied) 



90 P.D. 12 



The Legislature, thus provided that MHFA, utilizing its expertise in the 
area, would establish the terms of its own interest subsidy program. I 
am aware that MHFA has done so by regulation and that FHA 236 eli- 
gible tenants as well as public housing eligible tenants come within the 
ambit of the definition of low income persons and families provided in 
Section 13A 2(d) of these regulations. It is well understood that interpre- 
tation by the agency charged with responsibility of an administrative 
statute is entitled to great weight, Pangburn v. C.A.B., 311 F.2d 349; 
Op. Any. Gen., Oct. 10, 1966, p. 95. 

I am also aware that, as you indicate, the structure of MHFA's in- 
terest subsidy program was modeled upon that of FHA's 236 program. 
It would be an absurd and unreasonable result if those eligible for the 
very program upon which the Legislature modeled G.L.c. 23A App., 
§1-13 A were to be declared ineligible to receive the benefit of its interest 
subsidy. Such a result should not be attributed to the Legislature. 
McCarthy v. Woburn Housing Authority, 341 Mass. 539; Beriibe v. 
Selectmen of Edgartown, 336 Mass. 634. 

Accordingly, for the reasons herein outlined, I am of the opinion that 
the Legislature did not intend to prevent MHFA from continuing, 
through its interest subsidy program, to aid those of the 
Commonwealth's needy who meet FHA's 236 eligibility criteria. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 41. December 26, 1974 

Mr. Arthur H. MacKinnon 
Comptroller of the Commonwealth 
Executive Office for Administration 

and Finance 
State House 
Boston, Massachusetts 02133 

Dear Comptroller MacKinnon: 

You have requested my opinion as to the scope of St. 1974, c. 554 
which concerns authorizing the Department of Public Works and the 
Metropolitan District Commission to make price adjustments for certain 
increases in the cost of liquid asphalt in construction contracts. Specifi- 
cally, you have sought my opinion as to the following question: 

"Is this legislation [St. 1974, c. 554] retroactive and retro- 
spective in nature to the extent that it would permit adjust- 
ments in the unit prices for liquid asphalt as referred to above 
for the period beginning December 31, 1973, which date is re- 
ferred to in the act, and July 18, 1974, the effective date of the 
act?" 
The act to which you refer, St. 1974, c. 554, provides, inter alia, as 
follows: 



P.D. 12 91 

"Notwithstanding the provisions of any law to the con- 
trary, the department of public works and the metropolitan 
district commission, . . . may adjust unit prices for liquid as- 
phalt used in bituminous concrete in construction contracts 
awarded on or before December thirty-first, nineteen 
hundred and seventy-three; provided, that the cost f.o.b. the 
supplier has increased more than twenty-five per cent be- 
tween the date the bids were publicly opened and read and 
the date the liquid asphalt was purchased, and that the in- 
crease in cost of said asphalt was the result of the energy 
crisis, so-called." 

I understand your opinion request as concerning itself with purchases 
of liquid asphalt made by contractors between the dates of December 
31, 1973 and July 18, 1974. The language to which you refer on its face 
appears to apply to all contracts awarded prior to December 31, 1973 
and to all purchases of liquid asphalt made subsequent to that date. St. 
1974, c. 554 was obviously enacted with the intent of making equitable 
adjustments in public contracts to reflect increases in the price of liquid 
asphalt as a result of the energy crisis. Accordingly, it is my opinion that 
St. 1974, c. 554 allows price adjustments for all purchases of liquid as- 
phalt which were made subsequent to December 31, 1973 pursuant to 
contracts awarded prior to that date. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 42. December 30, 1974 

Honorable Robert Q. Crane 

Treasurer and Receiver General 

Chairman, State Lottery Commission 

One Gateway Center 

Newton, Massachusetts 02158 

Dear Treasurer Crane: 

You have provided me with the following facts: An employee of the 
Massachusetts State Lottery Commission, now serving in a position of 
job group thirty-two, step seven, is, at your request and direction, to as- 
sume a position in job group thirty. The employee has been in his pres- 
ent job group for nearly three years. Prior to that time, he had served 
approximately three years as Third Deputy Treasurer, a classified posi- 
tion. Before that, he had served for two years as the Administration As- 
sistant to the Treasurer, also a classified position. At all times he has 
served in positions falling within the Office of the State Treasurer. 

On the basis of the above facts, you have requested my opinion 
whether, in determining in which step the subject employee should be 
placed in his new job group, he should be credited for his total prior 
service (eight years), rather than only such of his service as was ren- 
dered in the higher job group. 



92 P.D. 12 

General Laws, c. 30, § 46(8) provides: 

"An employee who is demoted to a position in a lower job 
group shall receive the salary to which his period of service 
would entitle him if his service had been rendered in such 
position in the lower job group, but not less than the em- 
ployee would have been entitled to had his service been con- 
tinuously in such position in the lower job group." 

It is my view that § 46(8) clearly commands that the subject employee 
be credited for his total prior service. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 43. January 8, 1975 

Honorable Gregory R. Anrig 

Commissioner of Education 

Teachers' Retirement Board 

182 Tremont Street 

Boston, Massachusetts 02111 

Dear Dr. Anrig: 

You have advised me of the following Resolution of the Teachers' Re- 
tirement Board passed at a meeting held by the Board on October 17, 
1974: 

"VOTED: To request the Attorney General for the Common- 
wealth of Massachusetts for his opinion as to whether monies or 
benefits received from the Social Security System are to be equated 
with the words, used in the Massachusetts General Laws, Chapter 
32, Section 4 (1) (p), 'retirement allowance, annuity or pension from 
any other source,' thus prohibiting the certain members, of con- 
tributory retirement systems referred to in said Section 4(1) (p), 
from obtaining credit for certain periods of service if they are en- 
titled to receive monies or benefits from the Social Security System 
for the same periods of service." 

You have further advised me: 

"The Teachers' Retirement Board has before it five (5) specific 
requests to obtain the credit referred to in said Chapter 760, and in 
each case the individual did make contributions to the Social Se- 
curity System together with their employer, Lesley College, Cam- 
bridge, Massachusetts, 02138, which operates a private laboratory 
school known as the Carroll Hall School, in which school each of 
the five persons were employed." 

The Social Security System excludes from its coverage service in the 
employ of a state, or political subdivision or any instrumentality which is 
wholly owned by the state or political subdivision (LR.C. § 3121 (b) (7) ) 
with certain exceptions not applicable to teachers in the public school 
system of Massachusetts. 



P.D. 12 93 

St. 1973, c. 760 added paragraph (p) to subdivision 1 of § 4 of G. L. c. 
32. It permits a member of the Teachers' Retirement System to tack on 
to his creditable service as a teacher in the public school system of the 
Commonwealth, under certain conditions, his service as a teacher in 
"any non-public school in the commonwealth, if the tuition of all . . . 
pupils taught was financed in part or in full by the commonwealth . . . ; 
provided that no credit shall be allowed and no payment shall be ac- 
cepted for any service for which the member shall be entitled to receive 
a retirement allowance, annuity or pension from any other source . . ." 
(Emphasis supplied.) 

In my view, this statutory provision appears to be an effort on the part 
of the Legislature, as in many other instances amending c. 32. to fill a 
gap in the pension laws for public service rendered but not otherwise 
credited. The proviso denying credit for any service for which a member 
is going to receive "a retirement allowance annuity or pension from any 
other source" is aimed at precluding any unjust double credit. 

The issue, therefore, is whether Social Security benefits constitute "a 
retirement allowance, annuity or pension from any other source" so as 
to prevent prior service in a non-public school from being counted as 
creditable service. 

The Legislature, in the proviso clause above referred to, employed 
language similar to language it has employed in other like situations. 
Thus, G. L. c. 32, § 3(4) under certain conditions permits the allowance 
of credit for service in the public schools of another state "provided that 
no credit shall be allowed and no payment shall be accepted for any 
service for which the member shall be entitled to receive a retirement 
allowance from any other state." 

This proviso, referred to in the request for opinion, is less sweeping in 
its language than that in c. 760. However, analysis of the total act gives 
helpful guidance to the present issue. The subsection as drafted referred 
to teaching in another state and recognized a benefit to the Common- 
wealth to be honored under c. 32 so long as no recognition had been 
forthcoming from the other state. So here reference is limited to service 
in non-public schools where tuition is financed by the Commonwealth. 
The question thus reduces itself to what reading should be given the lan- 
guage in question within this limited context? 

"Retirement allowance," "annuity" and "pension" are words and 
phrases defined in c. 32, § 1, with reference to the state system therein 
established. On the other hand, the Social Security System sounds in the 
tenor of "Old Age, Survivors and Disability Insurance Benefits" (see 42 
U.S.C.A. §§ 401, et seq.), yet no reference is made in c. 760 to "insur- 
ance benefits" or directly to the Social Security System itself. Obvi- 
ously any employment in a non-public school is such as would be cov- 
ered by the Social Security Act. The Legislature has declared hereby to 
exist a public service deserving of recognition under c. 32 by virtue of 
employment in a non-public school, so long as funding for tuition came 
from the Commonwealth. To say that Federal Social Security coverage 



94 P.D. 12 

excludes service from being considered would be to render c. 760 a nul- 
lity and frustrate the legislative intent. Such a construction, in my view, 
is unwarranted. 

Accordingly, it is my opinion that credit should be given for employ- 
ment in the situations now before the Teachers' Retirement Board not- 
withstanding the fact Social Security benefits are payable for the service 
in question. 

Accordingly, I answer your question in the negative. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 44. January 9, 1975 

Dr. Robert Wood, President 

University of Massachusetts 

Office of the President 

One Washington Mall 

Boston, Massachusetts 02108 

Dear President Wood: 
You have requested my opinion on the following question: 

"Does the University of Massachusetts have the autono- 
mous authority under Mass. G. L. c. 75 to adopt rules and 
regulations, notwithstanding the provisions of Mass. G. L. c. 
30A?" 
Prior to St. 1974, c. 361, § 1, the procedural and other provisions of 
G. L. c. 30A, §§ 2-9 did not apply to the University by virtue of the 
definition set forth in G. L. c. 30A, § 1(5), which excluded from the 
meaning of "regulation'': 

"(c) regulations concerning the operation and management 
of state . . . educational . . . institutions ..." 

The repeal of this specific language by St. 1974, c. 361, § 1 raises for 
the first time the question whether the University is subject to G. L. c. 
30A, §§ 2-9 by virtue of the autonomy granted the University by St. 
1962, c. 648, as set forth in G. L. c. 75. 

G. L. c. 30A, commonly known as the State Administrative Proce- 
dure Act, was enacted by St. 1954, c. 681. The "broad remedial purpose 
of the State Administrative Procedure Act . . . [was] to provide com- 
prehensively for procedural due process in administrative proceedings." 
Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 500. 

Subsequent to the enactment of this legislation, however, the Legisla- 
ture enacted St. 1962, c. 648, which " 'significantly amended G. L. c. 75 
and expanded the authority of the Board of Trustees of the University of 
Massachusetts.' " Op. Atty. Gen., July 19, 1972, at 3. 



P.D. 12 95 



As amended, G. L. c. 75, § 1 provides: 

"There shall be a University of Massachusetts which shall 
continue as a state institution within the department of educa- 
tion but not under its control and shall he governed solely by 
the hoard of trustees established under section twenty of 
chapter fifteen. In addition to the authority, responsibility, 
powers and duties specifically conferred by this chapter, the 
board of trustees shall have all authority, responsibility, 
rights, privileges, powers and duties customarily and tradi- 
tionally exercised by governing boards of institutions of 
higher learning. In exercising such authority, responsibility, 
powers and duties said board shall not in the management of 
the affairs of the university be subject to, or superseded in 
any such authority by, any other state board, bureau, de- 
partment or commission, except as herein provided." (Em- 
phasis supplied.) 

General Laws, c. 75, § 3 provides, in pertinent part: 

"Notwithstanding any other provisions of law to the con- 
trary, except as herein provided, the trustees may adopt, 
amend or repeal such rules and regulations for the govern- 
ment of the university, for the management, control and ad- 
ministration of its affairs, for its faculty, students and em- 
ployees, and for the regulation of their own body, as they 
may deem necessary, and may impose reasonable penalties 
for the violation of such rules and regulations. The trustees 
shall publish such rules and regulations and shall file copies 
thereof with the governor, the commission on administration 
and finance, and the joint committee on ways and means." 
(Emphasis supplied.) 

General Laws, c. 75 was adopted pursuant to the recommendations of 
a Special Commission. House Document No. 3350 of 1962, Report of 
the Special Commission on Budgetary Powers of the University of 
Massachusetts and Related Matters. In the light of the history of this 
legislation' and its terms, I concluded in an earlier opinion that the pro- 
visions of '*G. L. c. 75 as a whole make it clear that the Legislature in- 
tended that the authority of the Board of Trustees be autonomous with 
respect to the management and administration of the affairs of the uni- 
versity . . ." Op. Atty. Gen., July 19, 1972, at 5. 

Accordingly, I am of the view that the provisions cited above im- 
pliedly repealed G. L. c. 30A, §§ 2-9, in so far as the University of 
Massachusetts is concerned. With respect to the principle of implied re- 
peal, the question is whether G. L. c. 30A is so in conflict with G. L. c. 
75 as a whole and with sections 1 and 3 in particular that both cannot 
stand. "The test of the applicability of the principle of implied repeal is 
whether the prior statute is so repugnant to and inconsistent with the lat- 
ter enactment covering the subject matter that both cannot stand." 
Doherty v. Commissioner of Administration, 349 Mass. 687, 690. Thus, 



96 P.D. 12 

" 'the enactment of a statute which seems to have been intended to 
cover the whole subject to which it relates, impliedly repeals all existing 
statutes touching the subject . . .' " Sullivan v. Worcester, 346 Mass. 
570, 573. 

It is clear that by enacting G. L. c. 75, §§ 1 and 3, the Legislature 
intended to grant full and exclusive authority to the Board of Trustees 
with respect to the subject of rules and regulations concerning the man- 
agement, control and administration of its affairs and the regulation of its 
own body. This broad grant of managerial autonomy conferred by these 
and other sections set forth in G. L. c. 75. together with all authority 
necessarily incidental thereto which is given by implication {Fliiet v. 
McCabe, 299 Mass. 173, 178), cannot be reconciled with the restrictive 
provisions of G. L. c. 30A, §§ 2-9, which are diametrically opposite in 
language and intent.^ 1 therefore conclude that the provisions of G. L. c. 
30A, §§ 2-9, in so far as they might be applied to the University, were 
impliedly repealed by St. 1962, c. 648, and that such a matter of internal 
management is reserved to the Board of Trustees. See Op. Atty. Gen., 
November 13, 1967, at 134 (quorum requirement established by Board of 
Trustees of then Lowell Technological Institute established under G. L. 
c. 75A, § 7 not subject to G. L. c. 4, § 6). 

My conclusion is reinforced by several opinions which have re- 
peatedly reaffirmed the broad autonomous authority delegated by the 
Legislature to the Board of Trustees under G. L. c. 75, as well as to 
other public institutions of higher education within the Commonwealth. 
See, e.g.. Opinion of the Justices, Mass. Adv. Sh. (1973) 535 (Univer- 
sity of Massachusetts authorized to enter into leases and tenancies-at- 
will, notwithstanding G. L. c. 8, § lOA) and Op. Atty. Gen., July 19, 
1972 (same). Op. Atty. Gen., April 8, 1974 (non-professional employees 
of University of Massachusetts paid from grants and trust funds subject 
to G. L. c. 75, § 1 1 and not the classification and pay plan set forth in G. 
L. c. 30, § 45). Op. Atty. Gen., June 1, 1970, at 107 (leave policy of 
professional employees at State Colleges subject to rules and regulations 
of Board of Trustees of State Colleges under G. L. c. 73, § 1 and not to 
rules and regulations promulgated by the Director of Personnel and 
Standardization). Op. Atty. Gen., October 14. 1968, at 47 (Board of 
Trustees of Lowell Technological Institute authorized to forgive tuition 
for graduate student teachers and the sons and daughters of professional 
staff). Op. Atty. Gen., October 7, 1966 (Board of Trustees of then 
Southeastern Massachusetts Technological Institute authorized to estab- 
lish salary of President under G. L. c. 75B, § 10, and State Comptroller 
required to pay same). Op. Atty. Gen., November 25, 1964, at 129 
(Board of Trustees authorized to classify business manager under G. L. 
c. 73, § 16). 

In reaching my conclusion, I am not unmindful that one of my pred- 
ecessors ruled in 1965 that the Board of Trustees of the University was 
subject to the provisions of G. L. c. 30A, § 11 A, the state "open meet- 
ing" law. Op. Atty. Gen., July 19, 1965, at 47. I have previously ques- 
tioned the validity of the conclusion reached in the 1965 Opinion in Op. 



P.D. 12 97 

Atty. Gen., July 19, 1972. at p. 2, but it is still unnecessary to reexamine 
the question decided there in its entirety. It is sufficient to note that the 
statutory provisions governing the University, to which I have made 
reference, expressly refer to the power to adopt regulations, and that the 
pertinent provisions of c. 30A conflict with those specific statutory pro- 
visions. 

For the reasons stated above, I answer your question in the affirma- 
tive. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

'See Opinion of the Jiiilices. Mass. Adv. Sh. (1973) 535. 539-540. Op. Any. Gen.. July 19, 1972. at 6-8. 

-For example, the requirements for publishing and filing rules and regulations set forth in G. L. c. 75. § 3 are contrary to 
the requirements set forth in G. L. c. 30A. §§ 5-6B. 

Number 45. January 9, 1975 

Honorable Nicholas L. Metaxas 
Commissioner of Corporations 

and Taxation 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02204 

Dear Commissioner Metaxas: 

You have requested my opinion as to whether special justices of the 
district courts of the Commonwealth and of the Municipal Court of the 
City of Boston are entitled to retroactive cost-of-living salary increase 
adjustments for the calendar year 1974. Your letter directs my attention 
to a number of recent legislative enactments which you have suggested 
are relevant to the question I am being asked to address. Further, you 
have included within the materials you have forwarded to me a reference 
to the case of Eisenstadt v. County of Suffolk, 331 Mass. 570, which 
also may be relevant to the issue now before me. 

As a threshold matter, I must initially determine whether the legisla- 
tion to which my attention has been directed evidences an intent on the 
part of the Legislature that special justices receive cost-of-living salary 
adjustment increases retroactive to January, 1974. See St. 1974. c. 558; 
G. L. c. 30, § 46, as amended by St. 1973, c. 428. If my answer to that 
question is in the affirmative, I must then determine whether the Legis- 
lature is empowered to enact such legislation or is precluded from doing 
so because of the "public purpose" doctrine referred to by the Supreme 
Judicial Court in Eisenstadt v. County of Suffolk, 331 Mass. 570. 

Initially, I observe that G. L. c. 30, § 46, as amended by St. 1973, c. 
428. generally provides that the Director of Personnel and Standardiza- 
tion shall annually determine percentum shifts in the cost-of-living and 
shall prepare an annual report to the Legislature concerning changes in 
the cost-of-living. General Laws, c. 30, § 46, as amended by St. 1973, c. 
428, further provides, inter alia, as follows: 



98 P.D. 12 

"Whenever such determination indicates a percentum in- 
crease of at least three percentum, . . . such report shall be 
accompanied by a recommendation of legislation to provide a 
corresponding percentum increase in the salaries of . . . the 
justices and special justices of the district courts, including 
the municipal court of the city of Boston, such increase to 
take effect as of the beginning of the first payroll period of the 
year in which such report is submitted." 

It is a fundamental principle of statutory construction that the words 
of 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. It is 
obvious that in amending G. L. c. 30, § 46 the Legislature clearly in- 
tended to authorize cost-of-living salary adjustment increases for special 
justices retroactive to the first of the year in any year in which a suffi- 
cient increase in the cost-of-living as measured by external criteria, prin- 
cipally the United States Consumer Price Index, occurred. 

In 1974, the General Court enacted St. 1974, c. 558 which expressly 
granted retroactive cost-of-living salary adjustment increases to a 
number of judicial officers, including special justices. This legislation 
was specifically made retroactive to January 1, 1974. St. 1974, c. 558, § 
20. Accordingly, it is clear that the Legislature intended that special jus- 
tices receive retroactive cost-of-living salary adjustments for 1974. 

Before concluding that special justices are entitled to retroactive 
cost-of-living salary adjustment increases, it is necessary that I consider 
the decision of the Supreme Judicial Court in Eisenstadt v. County of 
Suffolk, 331 Mass. 570. In Eisenstadt, the Court held that a special jus- 
tice could not recover a retroactive salary increase in an action in con- 
tract where the authorizing statute did not specifically refer to special 
justices but where special justices' salaries were computed with refer- 
ence to the daily salary of full-time district judges. The Eisenstadt court 
further stated, in support of its decision, as follows: 

"On November 5 he [plaintiff-special justice] had no right 
to be paid more than compensation at the rate which had 
been established during the period when the services were 
rendered. These services have been paid for in accordance 
with such established rate. There is no suggestion that they 
were other than those customarily furnished by a learned and 
conscientious judge or that the compensation was inade- 
quate." Id. at 573. 

The Court went on to state: 

"[WJhile the Legislature in the present case could fix the 
salaries of the justices of the court as of September 1, it 
lacked the right to provide for retroactive payment of com- 
pensation for the services of the special justices." Id. at 574. 

At the outset, I note that the retroactive increase authorized by St. 
1974, c. 558 is a cost-of-living salary increase which is measured by 
means of an external standard, the United States Consumer Price 



P.D. 12 99 

Index, rather than as in Eisenstadt, a mere gratuity. Also, the 
Eisenstadt court, acknowledging that the Legislature could establish the 
salary of a public officer as of a date prior to the enactment of an estab- 
lishing statute, nevertheless concluded that a special justice who re- 
ceived pay by the day was not entitled to retroactive compensation pre- 
sumably on the theory that a special justice was not a public officer. 
However, subsequent to Eisenstadt. the Supreme Judicial Court inti- 
mated in the context of a retirement situation that both full-time and 
special justices are to be treated in a similar manner, expressly stating 
that ''special justice is a judicial office." Opinion of the Justices, 1971 
Mass. Adv. Sh. 1869, 1870-1871. This language indicates a departure 
from the earlier distinction between a full-time judge and a special jus- 
tice which appears to have been the basis for the decision in Eisenstadt, 
supra. 

Applying the Eisenstadt rationale to the legislation 1 have been asked 
to interpret, it is my opinion that special justices are entitled to retro- 
active cost-of-living salary adjustment increases for the calendar year 
1974, notwithstanding the language in the decision of the Supreme Judi- 
cial Court in Eisenstadt. In this regard, I am persuaded by the distinc- 
tion between cost-of-living salary increases designed to maintain com- 
pensation of the judiciary at previous salary levels and a salary increase 
which takes the form of a gratuity. I am further persuaded by the lan- 
guage to which I referred to earlier in Opinion of the Justices, 1971 
Mass. Adv. Sh. 1869, 1870-1871, that the Justices of the Supreme Judi- 
cial Court, if they were asked to decide this issue in an adversary con- 
text, would conclude that the Legislature was empowered to grant retro- 
active cost-of-living salary increases to special justices. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 46. January 14, 1975 

Honorable Bruce Campbell 

Commissioner of Public Works 

100 Nashua Street 

Boston, Massachusetts 02114 

Honorable Charles C. Cabot, Jr. 

Chairman. Outdoor Advertising Board 

80 Boylston Street 

Boston, Massachusetts 02116 

Gentlemen: 

Your respective agencies have raised certain questions as to the 
power and authority of the Outdoor Advertising Board to remove cer- 
tain outdoor signs under G. L. c. 93 without obligating the Department 
of Public Works to compensate the permittee and the property owner on 
whose property a sign is erected, notwithstanding the provisions of (1) 



100 P.D. 12 



23 U.S.C. § 131, ''The Highway Beautification Act of 1965," approved 
October 22, 1965 (Public Law 89-285), (2) St. 1971, c. 1070, effective 
November 23, 1971, inserting c. 93D into the General Laws, and (3) the 
Agreement dated December 31, 1971 between the United States of 
America represented by the Secretary of Transportation acting by the 
Federal Highway Administration and the Commonwealth of Massachu- 
setts, acting by the Massachusetts Department of Public Works, and en- 
titled 'FOR CARRYING OUT NATIONAL POLICY RELATIVE 
TO CONTROL OF OUTDOOR ADVERTISING IN AREAS 
ADJACENT TO THE NATIONAL SYSTEM OF INTERSTATE 
AND DEFENSE HIGHWAYS AND THE FEDERAL-AID 
PRIMARY SYSTEM," (the "Agreement"). 

Specifically, you ask that "[flor each question, please assume that the 
signs involved had been under permit from this Board, that the Board 
revoked or refused to renew the permits, and that the Board's order was 
affirmed after the permittees had exhausted all their rights to administra- 
tive and judicial review." You then detail the following questions: 
"1. If the Board, acting solely in compliance with G. L. c. 
93, §§ 29-33 and the Rules and Regulations adopted pursuant 
thereto, orders the removal of a sign which is subject to and 
not in conformity with the requirements of 23 U.S.C. § 131 
and St. 1971, c. 1070, do subsections (e) and (g) of 23 U.S.C. 
§ 131 and sections 2 and 4 of Mass. St. 1971, c. 1970 automat- 
ically give the permittee and the property owner any rights to 
amortization' or compensation notwithstanding the fact that 
the Board did not base its order on the requirements of these 
two statutes? 

2. Please answer the same question if the facts are as stated 
in question (1) except that the sign is maintained in full con- 
formity with the requirements of 23 U.S.C. § 131 and Mass. 
St. 1971, c. 1070. 

3. Is your answer to the above questions different when the 
basis of the Board's order is a finding that 

A. the sign was maintained in violation of a municipal ordi- 
nance or by-law in effect when the sign first became subject 
to 23 U.S.C. § 131, or when the State permit for the sign was 
first issued, whichever occurred later? 

B. the sign was maintained in violation of a municipal ordi- 
nance or by-law that took effect after the sign first became 
subject to 23 U.S.C. § 131, or after the State permit for the 
sign was first issued, whichever occurred later? 

4. May the Commonwealth pay compensation for the re- 
moval of signs subject to the Highway Beautification Act and 
at the same time require the removal of other signs without 
compensation. For example, if two signs, one of which is 
within 660 feet of an Interstate or Federal Primary Highway 
and the other of which is not, are ordered removed by the 
Board based on a finding that their continued maintenance 



P.D. 12 101 

would be in violation of the identical municipal by-law or or- 
dinance or the identical provision of the Board's Rules and 
Regulations, and if the Department of Public Works must 
await the amortization period and provide compensation for 
removal of the first sign, would it be a violation of the equal 
protection provisions of either the U. S. or Massachusetts 
Constitutions for the Department to decline for any reason to 
await the amortization period and provide compensation for 
the second sign?" 

General Laws, c. 93, § 29 authorizes the Outdoor Advertising Board 
to make, amend or repeal Rules and Regulations for the proper control 
and restriction of certain billboards, signs and other advertising devices 
"on public ways or on private property within public view of any high- 
way, public park or reservation. Such rules and regulations may require 
that said billboards, signs or other devices be located in business, com- 
mercial, industrial, marketing or mercantile areas . . . ; may prescribe 
standards of size, set-back and clearance ..." and may provide for 
permits. The last sentence of § 29 provides: 

"Cities and towns may further regulate and restrict said 
billboards, signs or other devices within their respective 
limits by ordinance or by-law, not inconsistent with sections 
twenty-nine to thirty-three, inclusive, or with said rules and 
regulations." 
Pursuant to the last sentence of § 29, the Board has adopted Rules and 
Regulations regulating such billboards, signs and other advertising de- 
vices and, effective July 23, 1969, adopted Rule § 9(k). The Board re- 
vised its Rules and Regulations, effective October 1, 1973, making them 
more restrictive in several respects, and included substantially the iden- 
tical language of Rule § 9(k), which became section 4(g) in the revised 
Rules and Regulations, reading as follows: 

"(g) No permit shall be granted or renewed for the location 
or maintenance of a Sign within a city or town except where 
such location or maintenance is in conformity with applicable 
city and town ordinances and by-laws enacted in accordance 
with Section 29 of Chapter 93 of the General Laws; and no 
ordinance or by-law shall be deemed inconsistent with the 
rules and regulations of the Board on the ground that such 
ordinance or by-law prohibits the location or maintenance of 
a Sign which in the absence of said ordinance or by-law 
would be in conformity with the said rules and regulations." 

The permits issued under the Rules and Regulations must be renewed 
annually. The permittee has no vested right in the sign and the permittee 
cannot compalin if it is not renewed because of a restrictive change in a 
town by-law, John Donnelly & Sons, Inc. v. Outdoor Advertising 
Board, Mass. Adv. Sh. (1972) 1057 (the "Avon Case"), nor in the 
Board's Rules or Regulations (semble). The Avon case involved a 
change in a by-law of the town of Avon which precluded the mainte- 
nance of any "billboard ... or advertising device . . . within . . . (500) 



102 P.D. 12 

feet of any church, chapel or synagogue; elementary or secondary 
school, whether public or private" or certain other buildings, public 
parks or reservations or memorials, with certain exceptions. The 
plaintiffs sign which had been in existence for years, did not comply 
with the new restrictions, and its permit was not renewed by the Out- 
door Advertising Board. The Avon case was decided May 6, 1972 and 
no reference is made therein to St. 1971, c. 1070 or the Highway 
Beautification Act of 1965. 

The Highway Beautification Act of 1965, 23 U.S.C. § 131, approved 
October 22, 1965, provides in part as follows (the quoted portions being 
in quotation marks): 

"(b) Federal-aid highway funds apportioned on or after 
January 1 , 1968, to any State which the Secretary determines 
has not made provision for effective control of the erection 
and maintenance along the Interstate System and the pri- 
mary system of outdoor advertising signs, displays, and de- 
vices which are within six hundred and sixty feet of the 
nearest edge of the right-of-way and visible from the main 
traveled way of the system, shall be reduced by amounts 
equal to 10 per centum of the amounts which would otherwise 
be apportioned to such State under section 104 of this title, 
until such time as such State shall provide for such effective 
control.'' (Emphasis supplied.) 



***** 



"(c) Effective control means that after January I, 1968, 
such signs, displays, and devices shall, pursuant to this sec- 
tion, be limited to'" certain directional and other official signs 
and notices and certain on premise signs, displays and de- 
vices." (Emphasis supplied.) 

(d) (In substance, this subsection permits the erection and 
maintenance, within the specified 660 feet, of signs, displays 
and devices "whose size, lighting and spacing, consistent 
with customary use is to be determined by agreement be- 
tween the several States and the Secretary, . . . within areas 
adjacent to the Interstate and primary systems which are 
zoned industrial or commercial or industrial areas as may be 
determined by agreement between the several States and the 
Secretary." Zoning is left up to the State, and determinations 
as to "customary use" made by a State, county or local zon- 
ing authority are to control.) 

"(e) Any sign, display or device lawfully in existence along 
the Interstate System or the Federal-aid primary system on 
September 1, 1965, which does not conform to this section 
shall not be required to be removed until July 1, 1970. Any 
other sign, display, or device lawfully erected which does not 
conform to this section shall not be required to be removed 
until the end of the fifth year after it becomes nonconform- 
ing." 



P.D. 12 103 



***** 



"Xg) Just compensation shall be paid upon the removal of 
the following outdoor advertising signs, displays, and devices 

(1) those lawfully in existence on the date of enactment 
of this subsection. 

(2) those lawfully on any highway made a part of the in- 
terstate or primary system on or after the date of enact- 
ment of this subsection and before January I, 1968, and 

(3) those lawfully erected on or after January 1, 1968. 
The Federal share of such compensation shall be 75 per cen- 
tum." (Compensation is to be allocated between the owner of 
the sign, display or device and the owner of the real estate on 
which it is located.) 

■k ic ii: "k "k 

"(k) Nothing in this section shall prohibit a State from es- 
tablishing standards imposing stricter limitations with respect 
to signs, displays and devices on the Federal-aid highway 
systems than those established under this section." 

■k "k "k "k "k 

"(n) No sign, display or device shall be required to be re- 
moved under this section if the Federal share of the just com- 
pensation to be paid upon removal of such sign, display or 
device is not available to make such payment." 

The "Agreement" executed pursuant to this Act on December 31, 
1971 defined zoned commercial or industrial areas and unzoned com- 
mercial or industrial areas (1. Definitions B. and C), among other terms 
and phrases, and provided: 

"II. Scope of Agreement 

This agreement shall apply to all zoned and unzoned com- 
mercial and industrial areas within 660 feet of the nearest 
edge of the right-of-way of all portions of the Interstate and 
primary systems within the Commonwealth of Massachu- 
setts in which outdoor advertising signs, displays, and de- 
vices may be visible from the main traveled way of said 
systems." 

It provided further in Section III that the Department of Public Works 
■"shall effectively control, or cause to be controlled in accordance with 
law, the erection and maintenance of outdoor advertising signs, displays, 
and devices lawfully in existence on or erected subsequent to the effec- 
tive date of this agreement other than those advertising the sale or lease 
of the property on which they are located or activities conducted 
thereon in accordance with the following criteria:" — relating among 
other things to the size of signs, spacing of sign structures (spacing be- 
tween signs along each side of certain highways to be a minimum of 500 
feet, and 100 or 300 feet on other highways), and lighting of signs. 



104 P.D. 12 



St. 1971, c. 1070 is entitled 'AN ACT PROVIDING FOR THE IM- 
PLEMENTATION OF THE FEDERAL HIGHWAY BEAUTIFI- 
CATION ACT OF 1965. "and § 1 inserts into the General Laws a new 
Chapter 93D entitled ''CONTROL OF OUTDOOR ADVERTISING 
ADJACENT TO THE INTERSTATE AND PRIMARY HIGHWAY 
SYSTEMS." Section 1 of Chapter 93D defines Primary and Interstate 
Systems as those terms are understood and defined in the Highway 
Beautification Act of 1965 and in the Agreement. Section 2 of c. 93D 
provides in part as follows: 

"'Section 2. Notwithstanding the provisions of chapter 
ninety-three, no outdoor advertising shall be erected or main- 
tained within six hundred and sixty feet of the nearest edge of 
the right-of-way and visible from the main traveled way of a 
highway in the interstate or primary systems except the follow- 
ing: 

* * * * * 

(d) Signs, displays and devices which are located in areas 
which are zoned industrial or commercial under authority of 
law and which have permits issued under the provisions of 
section three. 

(e) Signs, displays and devices which are located in un- 
zoned commercial or industrial areas which areas shall be 
determined from actual land use and defined by regulations 
to be promulgated by the department and which have permits 
issued under the provisions of section three." 

Subsections (a), (b) and (c) of § 2 relate to certain directional and other 
official signs and notices and to certain on-premise signs, displays and 
advertising devices. Section 3 of c. 93D provides: 

""Section 3. Under the procedures set forth in chapter 
ninety-three, the board is authorized to issue permits for the 
erection and maintenance of signs, displays and devices de- 
scribed in clauses (a), {d) and {e), of section two, provided, 
however, that the erection and maintenance thereof would 
comply with applicable ordinances and by-laws, with standards 
promulgated by the Secretary of Transportation under Section 
131 (c-1), (f) and (h) of Title 23, United States Code, and with 
agreements between the department and the said Secretary au- 
thorized by section seven of this chapter. Nothing in this sec- 
tion shall apply to signs, displays or devices referred to in 
clauses {b) and (c) of section two. 

"Nothing in this chapter shall be construed to prohibit the 
board from adopting lawful regulations imposing stricter limita- 
tions with respect to signs, displays and devices on the inter- 
state and primary systems." (Emphasis supplied.) 

"SECTION 4. Any outdoor advertising, as defined in sec- 
tion one of chapter ninety-three D of the General Laws, in- 
serted by section one of this act, which was lawfully erected and 
which on the effective date of this act had a permit issued under 



P.D. 12 105 

chapter ninety-three of the General Laws, was in compliance 
with by-laws and ordinances, and was otherwise lawful in all 
respects, shall not be required to be removed as a result of any 
of the provisions of this act until five years after the effective 
date of this act." 
The "Board" is the Outdoor Advertising Board, and "department" is 
hereinafter referred to as the Department of Public Works. 

Section 7 of c. 93 D provides authority for the Department of Public 
Works to enter into the Agreement. Chapter 1070 then continues with 
section 2 in which the Department of Public Works 

"is authorized and directed to acquire by purchase, gift or 
otherwise, or take by eminent domain upon payment of just 
compensation all right, title, leasehold and interest of the 
owner, in the following signs, displays or devices, and to so 
acquire from the owner of the real property on which the sign, 
display or device is located the right to erect and maintain such 
signs, displays and devices thereon: {a) Any sign, display or 
device which was lawfully in existence on October the twenty- 
second, nineteen hundred and sixty-five and lawfully main- 
tained thereafter but which does not comply with the provisions 
of chapter ninety-three D of the General Laws, inserted by 
section one of this act; (h) any sign, display or device lawfully on 
any highway made a part of the interstate or primary system on 
or after October the twenty-second, nineteen hundred and 
sixty-five, and before January the first, nineteen hundred and 
sixty-eight, but which does not comply with the provisions of 
said chapter ninety-three D; and (c) any sign, display or device 
lawfully erected on or after January the first, nineteen hundred 
and sixty-eight and lawfully maintained thereafter but which 
does not comply with the provisions of said chapter ninety- 
three D; provided, however, that the department shall not ac- 
quire said sign, display or device without receiving prior assur- 
ance from the appropriate federal authorities that seventy-five 
per cent of the cost of said acquisition is available for reim- 
bursement to the commonwealth. Said si^ns, displays and de- 
vices shall not he subject to any proceeding for ahatement as a 
nuisance, or equitahle relief, notwithstanding the provisions of 
said chapter ninety-three D.' (Emphasis supplied.) 

Chapter 1070 concludes with the following sections: 

"SECTION 3. For carrying out the purposes and provisions 
of this act and of Title 1 of Public Law 89-285, or as amended, 
the department may expend any funds made available for the 
laying out, construction, reconstruction, resurfacing, reloca- 
tion or improvement of highways notwithstanding any provi- 
sions of law to the contrary. 

SECTION 4. Any outdoor advertising, as defined in section 
one of chapter ninety-three D of the General Laws, inserted by 
section one of this act. which was lawfully erected and which on 



106 P.D. 12 

the effective date of this act had a permit issued under chapter 
ninety-three of the General Laws, was in compliance with by- 
laws and ordinances, and was otherwise lawful in all respects, 
shall not be required to be removed as a result of any of the 
provisions of this act until five years after the effective date of 
this act. 

SECTION 5. Nothing in this act shall be construed to abro- 
gate or affect the provisions of any lawful ordinance, by-law, 
regulation or resolution, which are more restrictive than the 
provisions of this act." (Emphasis supplied.) 

Implicit in the questions presented is the assumption that without ref- 
erence to c. 1070 and the Highway Beautification Act, but upon the author- 
ity of the Avon case cited above, the Outdoor Advertising Board can 
proceed under G. L. c. 93 and the Rules and Regulations of the Board to 
refuse to renew a permit for a sign adjacent to the national system of 
interstate and defense highways in the federal-aid primary system, and to 
require removal of the sign without compensation. The Secretary of 
Transportation of the United States has taken the position that unless a 
state adopts effective control of the erection and maintenance along these 
systems of outdoor advertising signs, displays and devices, he can with- 
hold ten percent of the amounts which would otherwise be apportioned to 
the state and that there cannot be effective control, notwithstanding a state 
system for sign removal consistent with the federal pohcy, unless just 
compensation is paid. 

The questions presented may be better understood if specific fact situa- 
tions are posited. The first question asks whether an order for removal of a 
sign subject to, but "not in conformity" with, the requirements of the 
Highway Beautification Act and c. 1070 confers amortization or compen- 
sation rights upon the permittee and property owner where the order is 
promulgated by the Outdoor Advertising Board (the "Board") acting 
"solely in compliance with G. L. c. 93, §§ 29-33 and the Rules and Regula- 
tions adopted pursuant thereto." Assuming that in a commercial area sub- 
ject to the Agreement signs on each side of an interstate highway or free- 
way primary system are less than the minimum of 500 feet apart required by 
paragraph 2(a) under the portion of Section III entitled "SPACING OF 
SIGN STRUCTURES," then such a sign would be nonconforming under 
either the Highway Beautification Act or c. 1070. Assuming further that 
the Board, purporting to act under G. L. c. 93 and under its own Rules and 
Regulations, orders the removal of the sign, the question arises whether the 
Board can validly take the position that under the Avon case there is no 
vested right in the permit and that the sign can be ordered removed without 
the payment of compensation. The State of Vermont has taken a similar 
position, claiming that it could, under its Supreme Court's decisions which 
had held that there was no substantial property interest in the sign permits, 
order the removal of signs without compensation and without reference to 
the Highway Beautification Act. that it had taken effective steps to remove 
signs subject to the Highway Beautification Act, and that it was not re- 
quired to provide compensation for such removal. 



P.D. 12 107 

However, the United States Secretary of Transportation determined 
that the failure of the State of Vermont to provide for compensation did not 
constitute "effective control" under the Highway Beautification Act and. 
pursuant to subdivision (b) of that Act. withheld 10% of federal aid highway 
funds apportioned to the State in each of such federal aid programs for 
expenditures in the fiscal year 1972. The final determination of the Sec- 
retary was received by the State of Vermont on November 17, 1972. 
Pursuant to subsection (1) of the Highway Beautification Act. Vermont 
appealed to the United States District Court for the State of Vermont 
(Civil Action No. 6809). 

1 note in passing that the Vermont statute provides for the removal of all 
outdoor advertising signs subject to the Highway Beautification Act, ex- 
cept thoseallowed thereunder (10 V.S.A. §§ 321-345). and allows an amor- 
tization period of five years (10 V.S.A. § 338), but it provides that there 
shall be no payment of compensation for removal of signs except: 

"only if, and to the extent federal law, when in effect, re- 
quires payment of compensation for the taking or removal of 
outdoor advertising on state highways as a condition for 
payment to the state of federal highway funds, and federal 
funds are available." (10 V.S.A. § 336). 

In the Federal action, Vermont filed a Motion for Judgment on the 
Pleadings and a Brief in which it argued in effect that ( 1 ) the withholding of 
ten percent of highway funds under the Highway Beautification Act. as 
interpreted by the United States Secretary of Transportation, violated the 
Tenth Amendment to the Constitution of the United States; (2) that, in 
order to avoid such a determination of unconstitutionality, the Act should 
be interpreted so as to impose a penalty only for failure to provide effective 
control of highway signs and that failure to provide compensation for re- 
moval of signs did not itself require a determination that there has been no 
"effective control;" and (3) that, in any event. Congress did not intend to 
displace state laws, and that, under Vermont law, the obligation to com- 
pensate sign owners and site owners depends on the nature, scope and 
worth of their right or interest under state law at the time of removal of the 
sign. These conditions were rebutted by the other parties to the proceed- 
ing, the Secretary of Transportation argued that there was no "effective 
control" under the Highway Beautification Act unless just compensation 
was paid for the removal of signs and that the Secretary could validly 
withhold ten percent of the highway aid funds. A decision adverse to the 
position of the State of Vermont was handed down by the United States 
District Court on July 17, 1974. 

It is my opinion that Vermont's argument even if ultimately upheld on 
appeal would not apply in this Commonwealth because, unlike 10 V.S.A. § 
336, which makes provision for compensation upon removal of signs "only 
if, and to the extent federal law . . . requires payment of compensation . . . 
as a condition for payment to the state of federal highway funds ..." 
Chapter 1070 of the Acts of 1971 provides in section 2 that "[t]he depart- 
ment of public works ... is authorized and directed to acquire by pur- 



108 P.D. 12 

chase, request or otherwise or take by eminent domain upon payment of 
just compensation the interest of the sign owner and real property owner in 
any sign, display or device lawfully in existence on specified dates [the 
same dates provided in subsection (g), the ' "just compensation' ' subsection 
of the Highway Beautification Act], but which does not comply with the 
provisions of . . . chapter ninety-three D . . . " Moreover, c. 1070 makes 
clear by its title that the General Court intended to implement the Highway 
Beautification Act, and this is further emphasized in G. L. c. 93D. inserted 
by c. 1070, by its title, 'AN ACT PROVIDING FOR THE IM- 
PLEMENTATION OF THE FEDERAL HIGHWAY BEAUTIFI- 
CATION ACT OF 1965," and in section 2 which provides that 
"[njotwithstanding the provisions of chapter ninety-three, no outdoor ad- 
vertising shall be erected or maintained within six hundred and sixty feet of 
... a highway in the interstate or primary systems ..." except the signs 
enumerated therein, which list of permitted signs is virtually identical with 
the list in subsections (c) and (d) of the Highway Beautification Act. 

Thus, it is clear that c. 1070 supplants G. L. c. 93 except as to the permit 
procedure provided for in section 3 of G. L. c. 93D. Accordingly, the 
Outdoor Advertising Board cannot act solely under G. L. c. 93, §§ 29-33, 
or its Rules and Regulations, as to signs subject to c. 1070, but is bound by 
the provisions of c. 1070 and must provide compensation for removal of 
signs not in conformity with c. 1070 and the Highway Beautification Act 
and, in compliance with section 4 of c. 1070, any such sign may not be 
required to be removed until 5 years after the effective date of that act 
(November 23, 1971) and, further, in compliance with section 2 of c. 1070, 
then only if the Department of Public Works has received prior assurance 
from the appropriate authorities that seventy-five percent of the cost of 
acquiring the sign is available for reimbursement to the Commonwealth by 
the Federal government. 

The second question raised is the same as the first except that I am asked 
to assume that the sign ordered to be removed is maintained in full confor- 
mity with the requirements of the Highway Beautification Act and c. 1070. 
An example would be a Regulation of the Board as to the size of a sign 
which is more stringent than required by the Agreement. The Highway 
Beautification Act provided for this possibility in subsection (k) thereof 
which permits a state to impose stricter limitations, and the "Policy and 
Procedure Memorandum" ("P. P.M.") 80-5.2 of the United States De- 
partment of Transportation issued under the Highway Beautification Act 
also specifically provides for compensation in such cases. Thus, P. P.M. 
80-5.2 provides in part as follows: 

"5. CONTROL AREA AND ZONING 

a. The applicable control distance, 660 feet for advertising 
signs, shall be measured horizontally from the edges of the 
right-of-way along lines perpendicular to the centerline of the 
highway. 



***** 



d. . . . the zoning ofan area will determine applicability of the 
standards for control of outdoor advertising signs. Similarly, 



P.D. 12 109 

actual industrial or commercial use at any given time will de- 
termine the classification of unzoned commercial or industrial 
areas. 

e. Where State standards are more stringent than Federal 
control requirements along Interstate and Primary Systems, the 
Administrator may approve Federal participation in costs of 
applying the State standards to those systems on a statewide 
basis." 

Consistent with this Federal approach. G. L. c. 93D, § 2, inserted by c. 
1070. prohibits outdoor advertising within a 660 foot control area and areas 
zoned industrial or commercial and in unzoned industrial or commercial 
areas unless they have permits issued under section 3. Section 3 authorizes 
the Board to issue permits for signs which "comply with applicable ordi- 
nances and by-laws, with standards promulgated by the Secretary of 
Transportation under Section 131 (c-1), (0 and (h)" of the Highway 
Beautification Act and with the Agreement, but further provides that 
"[n]othing in this chapter shall be construed to prohibit the board from 
adopting lawful regulations imposing stricter limitations with respect to 
signs, displays and devices on the interstate and primary systems." Thus, 
c. 93D sanctions stricter regulations by the Board and if such regulations 
are adopted, then, under section 2 of c. 1070. signs not complying therewith 
"would not comply with the provisions of said chapter ninety-three D," 
and compensation would be payable upon removal of such signs and amor- 
tization would apply. 

You have also asked, in Part A of your third question, whether the 
requirements of amortization and compensation are applicable to a sign 
"maintained in violation of a municipal ordinance or by-law in effect when 
the sign first became subject to (the Highway Beautification Act) or when 
the State permit for the sign was first issued, whichever occurred later." 

You have not directly asked for my opinion when a sign became subject 
to the Highway Beautification Act, but in order to answer your question, it 
would be necessary for me to make that determination. Such determina- 
tion, preliminary at least, in the circumstances we are dealing with, is a 
matter for the executive branch of the Federal government, specifically the 
Federal Highway Administration. In all the circumstances I think it would 
be imprudent for me to render an opinion on this question bearing in mind 
that it is for the Federal government to determine in any given situation 
whether compensation is payable under Federal law for removal of a sign 
and bearing in mind further that failure on the part of the Commonwealth to 
accept such Federal determination could expose the Commonwealth to the 
risk of the reduction by ten percent of the Federal funds annually con- 
tributed to the Commonwealth for highway purposes. As I point out 
below in my answer to your fourth question, a state which takes the po- 
sition that compensation is not payable under its law in a situation where 
the Federal government has determined that compensation is payable 
under Federal law, subjects itself to the risk of the ten percent reduc- 
tion. This is essentially what occurred in the State of Vermont as I have 
pointed out above. 



110 P.D. 12 

For this reason, therefore, I think it is appropriate for me to decline to 
answer either Part A or Part B of your third question and to suggest that 
you obtain from the appropriate Federal authorities a decision whether 
compensation is payable under the Highway Beautification Act in the 
circumstances set forth in Parts A and B of your third question. 

I do advise you, however, because it is implicit in your third question and 
because it is a matter of interpretation of State law, that in my opinion any 
sign subject to the provisions of the Highway Beautification Act and c. 
1070 which, on the effective date of c. 1070. i.e. November 23, 1971, had a 
State permit, was lawfully erected and lawfully maintained and was then in 
compliance with applicable by-laws and ordinances, cannot be required to 
be removed under the provisions of c. 1070 until 5 years after the effective 
date of the act and then only, as provided in section 2 of c. 1070, if the 
Department of Public Works has received prior assurance of the avail- 
ability of the specified Federal reimbursement to the Commonwealth in 
connection with the acquisition of the sign in question. 

With respect to your fourth question which asks in substance whether 
constitutional requirements of due process require the Board and the De- 
partment of Public Works to observe the amortization period and to pay 
compensation for signs located beyond 660 feet of the nearest edge of the 
right-of-way of an interstate or Federal primary highway and visible from 
the main traveled way thereof, I have been informed by the Chief of the 
Scenic Control Branch of the Federal Highway Administration that the 
Federal government would share in the cost of compensation for removal 
of such signs based upon the provisions of P. P.M. 80-5.2. 5e, quoted 
above. 

As I have pointed out in my answer to your third question, it seems to me 
that if the Federal government rules that such compensation is payable, as 
a practical matter if the Commonwealth were to refuse to participate in the 
payment of compensation, the Commonwealth would be running the risk 
of suffering the ten percent reduction in annual Federal contribution pro- 
vided for in the Highway Beautification Act. Again, and because there is 
involved a determination, at least preliminary, by appropriate Federal offi- 
cials, as to the payment of compensation under Federal law, 1 respectfully 
suggest that you obtain such determination from the Federal government 
and be guided accordingly. 

Of course, with respect to any question involving interpretation of State 
law that may arise consequent upon Federal interpretation of Federal law, 
you should feel free to ask the Attorney General for his opinion on any such 
State law question. 

Very truly yours. 
ROBERT H. QUINN 

Attorney General 



'See discussion of the term "amortization" in the last paragraph of this opinion. 



P.D. 12 111 

Number 47. January 14, 1975 

Honorable Richard M. McGrath 

House of Representatives 

State House 

Boston. Massachusetts 

Dear Representative McGrath: 

In your capacity as Chairman of the Special Overload Commission es- 
tablished by the General Court, you have requested my opinion on a ques- 
tion arising as a result of the enactment of St. 1974, c. 851. While I have 
doubHis to my power to render formal opinions to legislative commissions 
(see G. L. c. 12, Sec. 9), I will nevertheless state my views to you for such 
use as you wish to make of them. 

Chapter 85 1 accomplishes a revision of the statutes regulating the weight 
of loads which trucks may carry and establishes a permit system by which 
vehicles may move loads higher than the statutory maximum. You have 
advised me that the Commissioner of Public Works, who is vested with 
certain powers concerning the granting of permits, has stated a policy of 
not granting permits to carry loads in excess of seventeen percent over the 
present statutory maximums, thereby disregarding the maximums set in 
the statute. Accordingly, you have asked whether the Commissioner (or 
the Department) is entitled to deny a permit for the maximum weights set 
forth in the statute where the applicant has satisfied all the conditions 
precedent to applying for such a permit, i.e., registration, inspection and 
certification. 

St. 1974, c. 851, § 3 amends G. L. c. 85, § 30 by inserting four new 
paragraphs following the first paragraph of Section 30. The amendments 
made by chapter 85 1 set out the application procedure for obtaining permits 
under the provisions of the statute. It is provided that "applications shall 
be made on forms provided by the commissioner of public works," which 
forms are to contain certain enumerated information. No criteria for con- 
sidering the applications are set forth in the statute, although receipt of 
such application, the commissioner of public works shall notify the 
applicant of the approval or disapproval of his application." 

In view of the legislative history of the statute (see Report of the Special 
Commission, H. No. 6164 of 1974), it is my opinion that the Commissioner 
is not acting consonant with the legislative intent if he makes no provision 
for permits for loads that may reach the statutory maximums. The Com- 
missioner of the Department of Public Works is required by Chapter 851 of 
the Acts of 1974 to grant permits in accordance with the standards set for 
the exercise of his discretion by that Act. To do otherwise would violate 
the statutory mandate. The Commissioner should therefore make provi- 
sion and issue permits applied for under c. 85, Section 30, as amended by 
Chapter 851 of the Acts of 1974. for the maximum weights permitted, 
provided the conditions set forth in the statute are met. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



112 P.D. 12 

Number 48. February 3, 1975 

Honorable Paul H. Guzzi 

Secretary of the Commonwealth 

State House 

Boston. Massachusetts 02133 

Dear Mr. Secretary: 

Your office requested an opinion of my predecessor concerning specific 
questions of law which have arisen in the course of administration, by your 
Department, of the provisions of G. L. c. 3. §§ 39-49. as amended by St. 
1973, c. 981, §§ 2-12. Specifically, you have sought my opinion with regard 
to two questions concerned with the proper interpretation of the statutory 
term, "legislative agent," as defined in G. L. c. 3, § 39, as amended by St. 
1973, c. 981, § 2. I will address myself to those two questions before 
considering your third question regarding the constitutionality of a re- 
quirement that voluntary associations employing a legislative agent divulge 
their entire membership lists in order to comply with G. L. c. 3, § 41, as 
amended by St. 1973, c. 981, § 4. 

The definition of "legislative agent" found in G. L. c. 3, § 39, as 
amended by St. 1973, c. 981, § 2 includes therein "persons who, as any 
part of their regular and usual employment and not simply incidental 
thereto, attempt to promote, oppose or influence legislation or the 
governor's approval thereof, whether or not any compensation in addi- 
tion to the salary for such employment is received for such services." 
You have focused upon the language, "and not simply incidental 
thereto," and have identified such language as a source of some diffi- 
culty in determining the scope of the term, "legislative agent." Specifi- 
cally, you seek an opinion as to whether an engineer for a public utility 
company appearing before a legislative committee to testify with respect 
to air pollution regulations must register under the statute. More gener- 
ally, you have asked whether the term "incidental thereto" is subject to 
advance definition of general applicability, or whether an assessment 
must be made of each individual on a case-by-case basis. 

The definition of a "legislative agent" must be read in light of the express 
intent of the Massachusetts Legislature in amending G. L. c. 3, §§ 39-49. 
The intent of the Legislature in this regard is recited in St. 1973, c. 981, § 1, 
which states in pertinent part: 

"... [T]o preserve and maintain the integrity of the legisla- 
tive process, it is necessary that the identity, expenditures and 
activities of certain persons who engage in reimbursed efforts, 
the so-called lobbyists, to persuade members of the General 
Court or the executive branch to take specific legislative ac- 
tions, either by direct communication to such officials, or by 
solicitation of others to engage in such efforts, be publicly and 
regularly disclosed." (Emphasis supplied.) 

This statement of intent by the Legislature which prefaced the legislative 
action undertaken in amending G. L. c. 3, §§ 39-49 indicates a continuing 
intention that those individuals commonly considered "lobbyists" be re- 



P.D.12 113 



quired to publicly disclose their employers, and the amount and sources of 
their compensation. The United States Supreme Court, when confronted 
with a similar question concerning the scope of the federal lobbying laws. 2 
U.S.C. § 261. ('/ sec/., limited the scope of the federal laws to "lobbying in 
its commonly accepted sense." United States v. Harriss. 347 U.S. 612, 
620. While the language of the federal statute differs somewhat from the 
language found in G. L. c. 3. § 39 as amended by St. 1973. c. 981. § 2. the 
Harriss Court noted the same legislative concern for excluding from the 
scope of the act contributions and persons having only an " 'incidental' 
purpose of influencing legislation." Id. at 622. 

The test ultimately suggested by the Supreme Court in Harriss for defin- 
ing the scope of the federal lobbying laws was essentially one of substantial- 
ity. Id. It is my opinion that such a test would also establish an appropriate 
standard for construing the legislative language ' "and not simply incidental 
thereto." expressed in G. L. c. 3. § 39. as amended by St. 1973. c. 981. § 2. 
Therefore, if a person's salary or compensation is in any way substantially 
attributable to activities enumerated in G. L. c. 3. § 39, as amended by St. 
1973. c. 98 1 . § 2. that person falls within the definition of a legislative agent. 
I recognize that such a definition will result in a great deal of case-by-case 
analysis of the meaning of "substantial" or "incidental thereto." but it is 
my opinion that the nature of the activity being regulated is not readily 
susceptible to any advance definition other than a general definition. 

With regard to the specific case you have postulated, it is my opinion that 
an engineer employed by a public utility who testifies before a legislative 
committee on air pollution regulations, would not be required to register as 
a legislative agent unless a substantial amount of the compensation he 
received from the utility company was attributable to his appearances 
before legislative committees or to other activities regulated by G. L. c. 3, 
§§ 39-49, as amended by St. 1973, c. 981, §§ 2-12. 

Secondly, you have sought my opinion as to whether within the defini- 
tion of legislative agent, which includes those who "influence the decision 
of any member of the Executive branch where such decision concerns 
legislation or the adoption, defeat, or postponement of a standard, rate, 
rule or regulation pursuant thereto," the term "any member of the Execu- 
tive branch" includes every agency and employee of the government of the 
Commonwealth excepting the judiciary and the General Court. 

By its express terms, the language which concerns you states that it 
applies to compensated acts to influence the "decision" of any member of 
the Executive branch. Further, the decision has to concern either "legisla- 
tion or the adoption, defeat or postponement of a standard, rate, rule or 
regulation. ' ' It is my opinion that this language circumscribes acts influenc- 
ing "decision-makers" in the Executive branch whenever their decisions 
would impose or remove a standard, rate, rule or regulation of i>eneral 
application. General Laws c. 3, § 39, as amended by St. 1973, c. 981, § 2 
would also apply to any act influencing adoption or removal of any general 
standard imposed by any executive agency pursuant to legislation. In ac- 
cordance with this analysis, the definition of legislative agent would not 
normally apply to adjudicatory proceedings before the various state agen- 



114 P.D. 12 



cies nor would it apply per se to the drafting of bills and proposed regula- 
tions. 

Finally, you have sought my opinion as to whether your construction of 
G. L. c. 3, § 41, as amended by St. 1973, c. 981, § 4, which would require 
voluntary associations employing legislative agents to divulge their entire 
membership lists is constitutionally permissible or is in violation of the 
First Amendment of the Constitution of the United States or Article 16 of 
the Declaration of Rights of the Constitution of the Commonwealth. The 
language which you have so construed states that the docket required to be 
maintained by you. "shall include the name, business address, and the 
employer's business interests which may be affected by legislation; the 
name, business address and business interests which may be affected by 
legislation in whose behalf the legislative agent is retained or employed if 
said person is not the direct employer." G. L. c. 3, §41, as amended by St. 
1973, c. 981 , § 4. Such information is deemed to be public information by 
virtue of that same statute. 

Although you have not sought my opinion as to whether your construc- 
tion of the above statutory language is a necessary construction, I should 
point out that the above language could easily be construed so as not to 
require that voluntary associations employing a legislative agent divulge 
their entire membership lists. However, in answering your specific ques- 
tion, my opinion is controlled by the large body of constitutional law enun- 
ciated by the Supreme Court of the United States in the area of First 
Amendment rights of free speech and free association. In NAACP v. 
Alabama, 357 U.S. 449 ( 1958), the Supreme Court held that the disclosure 
of membership lists of the NAACP would likely have a strong deterrent 
effect on the rights of individuals to freely associate. Id. at 463. In order to 
justify its requirement that a membership list be divulged, a state must 
show a controlling justification for the deterrent effect on the free enjoy- 
ment to associate which disclosure of membership lists is likely to have. 
NAACP V.Alabama, 357 U.S. 449, 466 (1958). See also, Gibson\. Florida 
Legislative Investigation Committee. I'll U.S. 539 (1963); Bates v. Little 
Rock. 361 U.S. 516 (1960); Wallace v. Brewer. 315 F. Supp. 431 (M.D. 
Ala. 1970). 

Consistent with the mandate of NAACP v. Alabama, supra, it is my 
opinion that a general rule requiring all associations who employ a legisla- 
tive agent to divulge their membership would violate rights of free associa- 
tion guaranteed by both the First and Fourteenth Amendments of the 
Constitution of the United States and by Article 16 of the Declaration of 
Rights of the Constitution of this Commonwealth. I intimate no opinion 
whether in particular cases, a showing that the disclosure of membership 
lists is essential to insuring the legislative policy of the right of people to 
have responsible democratic government and to preserve and maintain the 
legislative process may justify a requirement that a particular association 
divulge part or all of its membership lists. See, e.g.. Communist Party v. 
Subversive Activities Control Board, 367 U.S. 1 (1961). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 115 

Number 49. February 3, 1975 

Members, Real Estate Review Board 

Department of Public Works 

100 Nashua Street 

Boston, Massachusetts 021 14 

Gentlemen: 

You have addressed the following question to me: 

"Do the provisions of Chapter 556 of the Acts of 1952 and 
other Special Acts in amendment thereof and in addition 
thereto establish the members of the Real Estate Review 
Board as 'employees" of the Department of Public Works, or 
are the members of the Real Estate Review Board exempt 
from consideration as 'employees' because of the determina- 
tion they are required to make in accordance with the provi- 
sions of Chapter 556 of the Acts of 1952 and other Special 
Acts in amendment thereof and in addition thereto?" 

In your letter you state that: 

"From its inception the members of the Real Estate Re- 
view Board have signed a contract of employment with the 
Department of Public Works on a fiscal year basis under 03 
account (employment and compensation of consultants). A 
copy of the contract signed by the members of the Board is 
enclosed herewith together with Form AF-C2, the approved 
Request for Authorization of Services-Non-Employees, by 
the Executive Office for Administration and Finance, dated 
August 14, 1972."" 
(The "contract of employment"" which you. referred to is not an 
employment contract, but rather is a contract for services as an inde- 
pendent Appraiser.) 

The "03"" account is a subsidiary account which appears in the docu- 
ment entitled "Subsidiary Accounts and Expenditure Code Numbers 
For Budgetary Control"" and provides as follows. 
"03 Services — Non-Employees 

All services and expenses rendered by non-employees except 
contractual services classified under other subsidiary accounts. 
Professional 

121 Architects and Engineers 

122 Appraisers"" 

The present question has arisen because the Board has been notified 
by the Department of Public Works that its members are "employees"' 
for income tax withholding purposes and are subject to the provisions of 
Administrative Bulletin 72-10, the salient provisions of which are as fol- 
lows: 

"TO ALL AGENCY HEADS: 

The Internal Revenue Service has advised us that the Common- 
wealth is not complying with certain reporting and other require- 



116 P.D. 12 



ments of Federal law with respect to payments made by state agen- 
cies to third persons. I has also come to our attention that we are 
not complying with similar requirements imposed by the Massachu- 
setts income tax statutes. We have been requested by the IRS and 
by the Department of Corporations and Taxation to bring about 
compliance with these requirements as soon as possible. The pur- 
pose of this bulletin is to explain these requirements to agencies in 
the Executive Branch and inform them what must be done to effect 
compliance. 

There are two types of requirements involved. First, the Com- 
monwealth must withhold Federal and Massachusetts income taxes 
from payments made to certain 03 contractors and report the same 
to IRS and the Department of Corporations and Taxation. Second, 
we must file annual reports with both taxing authorities as to certain 
other payments made by state agencies. 

I. WITHHOLDING REQUIREMENTS 

1. Under the Massachusetts Expenditure Code Manual, an 03 
contractor, by definition, is not an employee. There are many in- 
stances, however, where an individual whose services are engaged 
under an 03 contract has many attributes of an employee - that is, 
where the state agency engaging his services has the right to direct 
and control him not only as to the result to be accomplished by his 
services, but also as to the details and means by which he accom- 
plishes it. For Federal and Massachusetts income tax purposes, any 
such 03 contractor is deemed an 'employee' of the Commonwealth. 
Thus, Federal and Massachusetts income taxes must be withheld 
from payments made to any such 03 and paid over to the appropri- 
ate taxing authorities, as if he were an 01 or 02 employee. In addi- 
tion, a W-2 form must be prepared and filed at the end of each, 
calendar year as to amounts paid to and withheld from each such 
contractor during the year. 

2. In order to assure prompt and uniform decisions as to which 03 
contractors are to be regarded as 'employees' for income tax pur- 
poses and therefore subject to withholding, / have directed the 
Bureau of Personnel to make that decision at the time each AF-C2 
form is processed. Its decisions will be based on information re- 
ceived from IRS, and the Bureau will remain in direct communica- 
tion with IRS to assure that each such decision is correctly made. 
Whenever the Bureau decides that an 03 contractor is an 'em- 
ployee' for tax purposes, it will insert the symbol 'W-2' in line 7 
('Other Pertinent Information') on each copy of the AF-C2 form. 

3. The Bureau of Personnel is also prepared to determine the 
status of each 03 contractor engaged by state agencies in the Ex- 
ecutive Branch which are not required to submit AF-C2 forms. In 
order to enable the Bureau to do so, each such agency must 
promptly notify the Bureau of the pertinent details of any 03 con- 



P.D.12 117 

tract with an individual it proposes to enter into. (No such inquiry 
need be made as to any 03 contract with a corporation, since pay- 
ments to corporations are not subject to withholding requirements.) 
Once the Bureau has communicated its decision to such an agency, 
it will be the responsibility of that agency to record that decision in 
such a manner as to permit proper treatment of payments to the 
contractor thereafter. (Emphasis supplied) 

Pursuant to this classification, income taxes are withheld from the 
compensation paid to each member of the Board (who are on a per diem 
basis), but the members are in no other respect treated as employees, 
e.g., they are not members of the State Retirement System nor entitled 
to workmen's compensation benefits. 

The Real Estate Review Board was created by various Special Acts 
relating to the accelerated highway program and authorizing the De- 
partment of Public Works and the Metropolitan Commission to expend 
specified amounts therefor. Each of the following statutes had identical 
language in § 6 which is set forth below in pertinent part: 

■'SECTION 6. The department and the commission may, on be- 
half of the commonwealth, take by eminent domain under chapter 
seventy-nine of the General Laws, or acquire by purchase or 
otherwise, such public or private lands, ... as it may deem neces- 
sary for carrying out the provisions of this act, . . . 

There is hereby created within the department of public works a 
real estate review board consisting of five members, to be appointed 
by the commissioner from members of the Boston Real Estate 
Board, from resident Massachusetts members of the American In- 
stitute of Real Estate Appraisers, from members of the Massachu- 
setts Board of Real Estate Appraisers or from members of the 
Massachusetts Real Estate Association. All vacancies in said board 
shall be filled by said commissioner from a list of five names submit- 
ted by the Boston Real Estate Board and five names submitted by 
the Massachusetts Real Estate Association. Said department shall 
fix the compensation of the members of said real estate review 
board. 

No payment in excess of twenty-five hundred dollars by way of 
purchase of real estate or any interest therein shall be made, and no 
settlement in excess of twenty-five hundred dollars shall be made 
out of court for damages recoverable under chapter seventy-nine of 
the General Laws in excess of the amount recommended by said 
real estate review board. 

No settlement in excess of twenty-five hundred dollars and in ex- 
cess of the recommendation of the real estate review board shall be 
made by agreement of the parties during or after trial except with 
the written approval of the court; provided, that settlements in ex- 
cess of the recommendation of the board may be made without such 
approval if the settlement does not exceed the amount of any ver- 
dict or finding which may have been rendered, together with in- 
terest and costs. 



118 P.D. 12 



The $2,500 limitation with respect to the board established by St. 1956 
c. 718, § 6 was raised to $20,000 by St. 1963 c. 822, § 3, St. 1967 c. 616, § 
3 and St. 1972 c. 765. 

St. 1955 c. 693, § 1, relating to taking of public lands and directing 
payments mutually agreed upon was amended by St. 1957 c. 657 to re- 
quire any dispute with the city, town, department, authority or agency 
whose lands are taken to be referred to the Real Estate Board ''created 
by'' St. 1954 c. 403, § 6 ""which shall determine the amount to he paid, 
and said determination shall be final/' (Emphasis supplied) 

The various Special Statutes creating the Board do not spell out the 
relationship between the Commissioner of the Department of Public 
Works and the Real Estate Review Board except with respect to ap- 
pointment of the members and fixing their compensation and, as an inci- 
dent, providing space in the Department for meetings. The right to ap- 
point, where no definite term is provided for, carries with it the right of 
removal. Adie v. Mayor of Holyoke, 303 Mass. 295, 300. The Federal 
Income Tax Regulations state that, for income tax withholding pur- 
poses, factors characteristic of an employer are the right of discharge 
and the furnishing of a place to work. Reg. § 31. 3401(c)-l(b). However, 
these factors are not conclusive for the same Regulation states essen- 
tially the common law definition of an employee, as follows: 

"(b) Generally, the relationship of employer and employee 
exists when the person for whom services are performed has 
the right to control and direct the individual who performs the 
services, not only as to the result to be accomplished by the 
work but also as to the details and means by which that result 
is accomplished. That is, an employee is subject to the will 
and control of the employer not only as to what shall be done 
but how it shall be done ..." 

The language of the various statutes which have created the Board 
make clear that the Board is a separate authority within the Department 
of Public Works (1965-66 Op. Atty. Gen'l, p. 65), and not subject to the 
direction or control of the Commissioner. Thus, under § 6 of each of the 
statutes which create the board, no payment or settlement in excess of 
$2,500 (later $20,000) can be made by the Department of Public Works 
unless recommended by the Board. Moreover, under St. 1955 c. 693, § 
1, as amended by St. 1957 c. 657, above referred to, the Board is made 
the final arbiter in the case of disputes with the other public authorities 
involved. Revere Housing Authority v. Commonwealth, 351 Mass. 180. 
This independent right of action vested in the Real Estate Review Board 
is clearly not a characteristic of an employer-employee relationship. 

I conclude, therefore, that the members of the Real Estate Review 
Board are independent of the Commissioner of the Department of Pub- 
lic Works, and are not employees of the Department for any purpose, 
including the withholding of income taxes. However, in connection with 
federal income tax withholding we are dealing with a federal question 
and I should point out that Reg. § 31. 3401(c)-l(d) provides as follows: 



P.D. 12 119 

"(d) Whether the relationship of employer and employee 
exists will in doubtful cases be determined upon an examina- 
tion of the particular facts of each case." 

Thus, if the federal government has made, or hereafter makes, a fac- 
tual determination that the members of the Board are employees for in- 
come tax withholding purposes, this determination will control, but such 
determination will not make a Board member an "employee" for any 
other purpose. It should be noted in this connection that "employer" 
and "employee" are defined, for purposes of withholding of the Massa- 
chusetts income tax, in the same manner as in the United States Internal 
Revenue Code, G.L. c. 62B § 1. 



Very tmly yours, 
FRANCIS X. BELLOTTI 

Attornex General 



Number 50. February 3, 1975 

Honorable Frederick A. Centanni 

Commissioner of Commerce and Development 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Centanni: 

You requested an opinion of my predecessor as to the authority of the 
Department of Commerce and Development to provide financial assis- 
tance to certain qualified public or nonprofit agencies pursuant to St. 
1973, c. 1038. 

I understand your request to concern itself with whether participating 
agencies which receive financial assistance pursuant to St. 1973, c. 1038 
can expend private funds raised from non-governmental sources for 
travel expenses, entertainment, salaries, or the purchase of equipment. 
Quite clearly, St. 1973, c. 1038 prohibits the expenditure of funds pro- 
vided by the Commonwealth for any of the above enumerated purposes. 

St. 1973, c. 1038 authorizes the Department of Commerce and De- 
velopment to "establish a program for financial assistance to those pub- 
lic or nonprofit agencies which promote or provide services for tourism, 
conventions, travel and recreation in the Commonwealth." However, 
the statute contains a proviso which states as follows: 

"No funds may be spent for travel, entertainment, salaries 
or purchase of equipment under this section/^ Id. (Emphasis 
supplied). 



120 P.D. 12 



Quite clearly, the prohibition against spending funds for travel, etc., 
extends only to prohibiting the use of public funds appropriated pursuant 
to St. 1973, c. 1038 for such purposes. There is no indication from the 
plain language of the statute that the legislature intended to prohibit par- 
ticipating agencies from expending privately raised funds for these pur- 
poses. Accordingly, it is my opinion that participating public or non- 
profit agencies may use privately raised funds for the purpose of travel, 
entertainment, salaries and the purchase of equipment and still partici- 
pate in the financial assistance program established by St. 1973, c. 1038. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 51. February 3, 1975 

Honorable Nicholas L. Metaxas 

Commissioner of Corporations and Taxation 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Metaxas: 

You requested an opinion of my predecessor whether the Department 
of Corporations and Taxation (hereinafter "Department") may properly 
purchase "blanket" type bonds for its various officers and employees 
required to give bond (G.L. c. 14, §§2 and 3) and for registers of deeds 
(G.L. c. 64D, §3). rather than purchasing the "schedule" bonds pro- 
vided for in G.L. c. 30, §16 as is presently the practice. You have stated 
that you believe blanket type bonds in sufficient penal amount and with 
proper surety would more comprehensively protect the Department be- 
cause of the inclusion of all employees permanently or temporarily as- 
signed to job positions requiring bond coverage. In contrast, schedule 
type bonds extend coverage solely insofar as scheduled officers or em- 
ployees are named and expressly bonded. For the reasons stated herein, 
I must answer your inquiry in the negative. 

The Legislature has not in any of the specific enactments requiring the 
bonding of certain state officers or employees used any language indicat- 
ing an intention expressly to forbid the use of blanket type bonds. G.L. 
c. 30, §15 provides: 

"When state officials or employees are required to give 
bond in which the amount is not fixed by law, the comptroller 
shall fix the amount and shall require that such bonds be 
made uniform so far as possible." 
Blanket type bonds might be issued consistently with §15; that section's 
uniformity requirement presents no obstacle to the use of such bonds; 
blanket type bonds would allow a maximum of uniformity. 



P.D. 12 121 

However. General Laws, c. 30, §16, which expressly authorizes the 
use of schedule bonds, states: 

"State officers and heads of state departments may arrange 
for such schedule bonds as they deem advisable, which shall 
take the place of bonds required by law of them or any of 
their officers and employees. Every such schedule bond shall 
be a surety company bond with a surety company authorized 
to do business in the Commonwealth as surety, conditioned 
that the officers and employees named in the bond shall faith- 
fully perform the duties of their offices and employments, 
with other conditions or provisions required by law/" 

That the Legislature considered such an enactment necessary to em- 
power state officers and heads of departments to arrange for schedule 
bonds suggests that a statutory authorization is required for blanket type 
bonds as well. Originally enacted as St. 1918, c. 257, §90. the schedule 
bond authorization has remained unchanged since St. 1920, c. 546, §1. 

A distinction which must be observed is a statutory distinction be- 
tween particular types of Department officers and employees. G.L. c. 
14. §2. which defines the duties of the Commissioner of Corporations 
and Taxation and his associate commissioners, provides in relevant part: 

■'The commissioner and associate commissioners . . . each 
shall give to the state treasurer a bond for the faithful perfor- 
mance of his official duties in a penal sum and with sureties 
approved by the governor and council.'" 

I am of the opinion that even should the language of §2 allow the com- 
missioner and associate commissioners to utilize blanket bonds for their 
positions, the approval of the governor and council would be necessary. 
G.L. c. 30, §18 supports such an interpretation. That section declares 
that with respect to bonds requiring the approval of the governor and the 
council: 

"The governor shall appoint a committee of the council 
which shall annually in March make such examination of 
bonds required to be approved by the governor or by the 
governor and council. If the bond is found upon examination 
to be insufficient, the person who has examined it shall 
forthwith notify the principal thereof and shall require him 
... to file a new bond in conformity with law." 

A power to disapprove blanket type bonds with respect to the commis- 
sioner and associate commissioners would inhere in the power of 
periodic review of the siifjhiencx of the requisite bond granted by c. 30, 

§18. 

In contrast, G.L. c. 14, §3, which concerns the appointment of em- 
ployees and consultants, provides: 

"[The Commissioner] may from time to time designate 
such employees of the department as he deems expedient as 
deputy collectors. Such deputies shall give bond for the faith- 



122 P.D. 12 

ful performance of their duties in such sum and in such form 

and subject to such conditions as he may prescribe . . ."' 

(emphasis suppHed). 

Section 3 seemingly provides the requisite statutory authorization for 

blanket type bonds — at least insofar as the bonds of deputy collectors 

are concerned. 

However, 1 direct your attention to the sample Public Employees 
Blanket Bond you have provided, which specifically excludes from the 
definition of employee in the insuring agreement those required by law 
to give bond: 

"The following terms, as used in this Bond, shall have the 
respective meanings stated in this Section: 'Employee' as 
used in Insuring Agreements 1 and 2 means a person while in 
the employ of the Insured during the Bond Period who is not 
required by law to give bond conditioned for the faithful per- 
formance of his duties and who is a member of the staff or 
personnel of the Insured hut does not mean any Treasurer or 
Tax Collector by whatever title known." (Emphasis supplied) 
I am of the opinion that this definitional exclusion from the coverage of 
the Public Employees Blanket Bond would render illusory the blanket 
type bond coverage of the various officers and employees required to 
give bond. Since G.L., c. 14 §2 requires the commissioner and associate 
commissioners each to give a bond for the faithful performance of his 
official duties, the definitional exclusions of §1 might render illusory In- 
suring Agreements 1 and 2. Moreover, the employees designated as 
deputy collectors by the commissioner under G.L. c. 14, §3 might well 
fall within the definitional exclusion from coverage of a "Tax Collector 
by whatever title known." The provision of c. 14 §3 that the commis- 
sioner may prescribe the sum, form and conditions of the bonds of those 
designated as deputy collectors does not supersede the requirement that 
such deputies "shall give bond." (emphasis added). The commissioner's 
discretion to prescribe the sum, form and condition of such bonds can- 
not sanction illusory bonds in derogation of the statutory command. 

Your final inquiry relates to whether blanket type bonds may be 
utilized with respect to registers of deeds. G.L. c. 64D, §3, which con- 
cerns registers of deeds in whose registry there has been installed a me- 
tering machine, requires: 

"Each register of deeds . . . shall give to the commissioner 
a bond, in a penal sum and with sureties approved by the 
commissioner, conditioned satisfactorily to account for 
money received by said register in his official capacity from 
the sale of said stamps." 
Unlike G.L. c. 14, §3, G.L. c. 64D, §3 does not empower the Commis- 
sioner to approve the form of the bond. Moreover, the schedule bond 
provision of c. 30 §16 would seem equally applicable in the case of reg- 
isters of deeds. Hence, any argument that the Legislature's enactment of 
c. 30, §16 evinces a need for statutory authorization for blanket bonds 
applies to registers of deeds as well. Finally, since a register of deeds 



P.D. 12 123 

may also fall within the definitional exclusion of "employee" contained 
in the Public Employees Blanket Bond described above, the bond might 
well be illusory and hence contrary to the command of c. 64D. §3. 

Based upon the sample Public Employees Blanket Bond, the facts you 
have provided, and the relevant statutes. 1 am of the opinion that the 
Department may not place blanket type bonds for its various officers 
and employees required to give bond, nor for registers of deeds. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 52. February 26, 1975 

Gasper Caso, Esquire 

Chairman 

Records Conservation Board 

Archives and Records Building 

State House 

Boston, MA 02133 

Dear Mr. Caso: 

On behalf of the Records Conservation Board, you asked for an Opin- 
ion of the Attorney General to determine whether the Records Conser- 
vation Board has the authority and power to permit the loan of state 
records to a private institution. 

Your request for an Opinion of the Attorney General indicates that 
certain historical records of the Department of Youth Services pertain- 
ing to the Lancaster and Lyman Schools, which are now closed, are de- 
posited at the Arthur and Elizabeth Schlesinger Library at Harvard 
University because, although the Records Conservation Board believes 
that the documents properly belong in the state archives, the archives 
are presently overcrowded and could not hold the documents in a man- 
ner which would assure their safekeeping. The Schlesinger Library is 
willing to hold the documents until such time as arrangements can be 
made for their transfer to the archives. I believe that such authority does 
reside within the statutory duties of the Records Conservation Board. 

The statutory responsibilities of the Records Conservation Board are 
set out in G.L. c. 30, § 42, which reads in relevant part as follows: 
"The Board shall have power to require all departments of 
the Commonwealth to report to it what series of records they 
hold, to set standards for the management and preservation of 
such records, and to establish schedules for the destruction, 
in whole or in part, and transfer to the archives, in whole 
part, of records no longer needed for current business." 
In addition, the Records Conservation Board has the power, by the 
same statute to order the sale or destruction of old records. However, 



124 P.D. 12 



"until such action shall have been taken, all such records . . . shall re- 
main the property of the Commonwealth . . .'" G.L. c. 30, § 42. See also 
G.L. c. 66, § 8, as amended by St. 1974, c. 141. 

I believe that the Records Conservation Board may authorize the loan 
of these Department of Youth Services records to the Schlesinger Li- 
brary pursuant to its powers to set management and preservation stan- 
dards for state records. Since neither a sale nor destruction of the rec- 
ords has been authorized by the Board, title to the documents clearly 
remains with the Department of Youth Service. A future sale, transfer 
to the archives, or destruction of these records must be approved by 
G.L. c. 30, §42. 

Sincerely, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 53. March 3, 1975 

Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

Article CI of the Articles of Amendment to the Constitution of 
Massachusetts, adopted by the voters in November, 1974, requires that 
a census of the inhabitants of each city and town in the Commonwealth 
be taken in 1975. The census will be used, among other things, for legis- 
lative redistricting and distributing government funds to local com- 
munities. In order to effectuate the provisions of Article CI, the General 
Court has enacted St. 1975, c. 10 which, among other things, amends G. 
L. c. 9, § 7 to provide for the manner in which the 1975 census shall be 
taken. Specifically, the new section 7 provides, "Such census shall be 
compiled and reported upon forms provided by the secretary and in ac- 
cordance with his instructions ..." Pursuant to that statutory provi- 
sion, you have prepared and forwarded to me the following forms and 
instructions for compiling and reporting the census: 

(1) A "Census Card"; 

(2) "Instructions for Census Takers"; 

(3) A "Census Supervisor's Manual"; 

(4) A "Guide for Training Census Takers." (Page 4 of this docu- 
ment contains a notation to correct a provision on page 2 of the "In- 
structions for Census Takers" dealing with the counting of persons 
dying after midnight on the census day.) You have requested my opinion 
as to whether such forms and instructions are consistent with the law 
pertaining to the definition and counting of inhabitants. 

The Supreme Judicial Court has only recently stated: 



P.D. 12 125 



"The [word] . . . "inhabitant' in constitutional and statu- 
tory provisions relating to voting [has] long been construed to 
require that the voter have his 'domiciT in the appropriate 
city or town/' Hershkoff v . Board of Rci^istrars of Voters, 
Mass. Adv. Sh. (1974) 2427, 2435 (citations omitted). 
Previously, the Court had affirmed that rule in the specific context of 
provisions involving the taking of the census. Opinion of the Justices. 
Mass. Adv. Sh. (1974) 819, 820-821. Thus, an individualis an "inhabi- 
tant" of a community for census purposes if he has his "domicile" 
there. The meaning of the word "domicile" has received extensive 
treatment by numerous authorities, see e.}^>., Hershkoff, supra, at 2436, 
2439, 2440-2441 and authorities cited. The meaning which was adopted 
by the Court in Hershkoff, and which therefore is the law of this Com- 
monwealth, is that one's "domicile" is the place where he resides with 
the intention to make it his home for the time at least. Thus, it follows 
that one is an "inhabitant" of a community if he lives there with the in- 
tention of remaining for the time at least. 

While the documents which you have forwarded to me relative to the 
definition and counting of inhabitants for the 1975 census are too exten- 
sive for me to recite their contents here, I am of the view that they treat 
such definition and counting consistently with the aforementioned prin- 
ciples. 

Accordingly, 1 answer your question in the affirmative. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 54. March 6, 1975 

Mr. George H. Tully 

Director of Administrative Services 

Executive Office for Administration 

and Finance 
State House, Boston, Mass. 02133 

Dear Mr. Tully: 

You have sought my opinion as to whether St. 1974, c. 180, which 
generally provides that "Patriots Day shall be celebrated as a legal holi- 
day on April nineteenth, twentieth and twenty-first in the year nineteen 
hundred and seventy-five." requires that "holiday rights" must be given 
to state employees for all three days. 

The "holiday rights" granted to state employees by the legislature are 
set out in G. L. c. 30, § 24A which provides in pertinent part: 

"If any person employed by the commonwealth is required 
to work on any legal holiday, as Hsted in the first sentence of 
clause Eiiihteenth of section seven of chapter four, he shall 
be given an additional day off or, if such additional day off 



126 P.D. 12 

cannot be given by reason of a personnel shortage or other 
cause, he shall be entitled to additional day's pay." (emphasis 
supplied). 

A predecessor of mine has declared that the intent of the legislature in 
enacting G. L. c. 30, § 24A was "to make good to a State employee 
either by giving him a 'replacement' holiday or an extra day's pay, any 
of the designated holidays which he was not able to enjoy because of 
being required to work." 1955 Op. Atty. Gen. 70 at 71. It is completely 
immaterial, for the purposes of said § 24 A, whether the holiday on 
which the employee works falls on a Saturday or on some other day of 
the week. Id. 

Initially, I note that since G.L. c. 4, § 7 (18) specifically enumerates 
the third Monday of April, in this case April 21, as a legal holiday, state 
employees required to work on that day are entitled to "holiday rights." 
I understand your question to concern itself with whether St. 1974, c. 
180 also extends holiday rights to employees required to work on April 
19 and April 20. 

The legislature in enacting St. 1974, c. 180 declared a three day Pa- 
triots' Day holiday for the year nineteen hundred and seventy five. The 
legislature, however, did not amend G. L. c. 4, § 7 (18) to include April 
19 and April 20 within the legislative definition of a legal holiday and, 
consequently, G. L. c. 30, § 24A does not specifically operate to extend 
holiday rights for April 19-20, 1975. 

In view of the legislature's failure to amend G.L. c. 4, § 7 (18) and its 
failure to specifically provide in St. 1974, c. 180 for the extension of 
holiday rights to state employees for April nineteenth and April twen- 
tieth nineteen hundred and seventy-five, I am of the opinion that the 
legislature did not intend to extend holiday rights to state employees on 
these dates. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 55. March 19, 1975 

Mr. W. Norman Gleason 

Director of Campaign and Political Finance 

8 Beacon Street 

Boston, Massachusetts 

Dear Mr. Gleason: 

On December 4, 1974 my predecessor in office, Robert H. Quinn, 
forwarded to you an opinion concerning the powers and duties of the 
Office of Campaign and Political Finance. That opinion proceeded from 
a recognition of the fact that the provisions of Chapter 1 173 of the Acts 
of 1973 (passed by the legislature and effective on January 1, 1974) con- 
flict with those of Chapter 859 of the Acts of 1974 (passed by the voters 



P.D. 12 127 



by initiative petition and effective December 5, 1974). The opinion 
called for a legislative clarification of Chapter 55 of the General Laws as 
amended by those acts, but as you are aware, the legislature has not yet 
completely responded to the problem and has not eliminated the conflict- 
ing provisions of law. A question has now arisen about the propriety of 
your releasing to the press the names of persons found by your office to 
be in violation of the provisions of G.L. c. 55. In this regard, you have 
asked the following specific questions: 

1. Would the release of the names prejudice later proceedings against 
the individuals who have failed to file required reports? 

2. Would the release of names prejudice later proceedings against in- 
dividuals found in violation of various other requirements of the 
Chapter? 

3. Since, under Section 2A, I may not forward such names to you 
until ten days after receipt of my notice of intention, what further 
action is open to me or required of me upon the return to me by 
postal authorities of the said notice of intention, unopened and un- 
claimed? 

This opinion will treat each of these three questions separately and in 
the order you pose them. It is significant to note, however, that there 
are issues and areas of concern common to all three questions. An ex- 
amination of these issues and areas of concern leads me to answer your 
first question in the negative. It is my conclusion that making available 
the list of names of candidates who have failed to file the reports re- 
quired by Chapter 55 would not prejudice or preclude appropriate later 
proceedings against the alleged violators. In reaching this conclusion I 
have balanced the named individuals' fundamental rights to due process 
of law and to privacy against the public's statutory right of access to 
such material and against the policies embodied in the First 
Amendment's guarantee of Freedom of the Press. 

The Due Process Clause of the Fourteenth Amendment to the United 
States Constitution has at its very core the proposition that the verdict 
of the trier of fact shall be based only on evidence received in open 
court, not from outside sources. As Mr. Justice Holmes expressed this 
rule over half a century ago: 

"The theory of our system is that conclusions to be 
reached in a case will be induced only by evidence and argu- 
ment in open court, and not by any outside influence, 
whether of private talk or public print." Patterson v. 
Colorado, 205 U.S. 454, 462 (1907). 

With the development in the twentieth century of an interlocking 
media system touching the lives of virtually the entire populace, courts 
have come to balance the requirement of a fair trial against the rule of 
freedom of discussion. Where the pre-trial publicity attendant on a par- 
ticular case is massive, pervasive and prejudicial, so that the possibility 
of a fair trial is foreclosed, the balance is consistently struck in favor of 
the individual's right to a fair trial. Thus, in Estes v. Texas. 381 U.S. 



128 P.D. 12 



582 (1965) the United States Supreme Court held that televising and 
broadcasting preliminary proceedings in which there was widespread in- 
terest and nationwide notoriety was inherently invalid as infringing the 
petitioner's fundamental right of due process. In that case the Court re- 
versed the petitioner's conviction without a showing of demonstrable 
prejudice. Similarly, reversing the murder conviction in Sheppani v. 
Maxwell 384 U.S. 333 (1966) the Court noted that where the totality of 
the circumstances raises the probability of prejudice arising from pre- 
trial publicity, the accused need not show identifiable prejudice. 

None of the cited cases erects an absolute rule prohibiting pre-trial 
publicity of any kind. Instead the Courts therein were called upon to 
make ad hoc determinations of whether or not on the facts of each par- 
ticular case, the pre-trial publicity was so massive and pervasive that the 
defendant had been denied a fair trial. In both the Sheppani and Estes 
cases the Court found the pre-trial publicity to be so inherently prejudi- 
cial that a fair trial was impossible. It is highly unlikely that the publicity 
resulting from your release of the list of names would approach in im- 
pact or scope the publicity of the Sam Sheppard and Bill Sol Estes 
cases. I would, therefore, conclude that the release of names in this case 
would not violate principles of fundamental fairness and would not pre- 
clude future prosecution. 

A balancing test is also used in evaluating the right of privacy of the 
involved individuals and the effect of that right on the pre-trial and pre- 
indictment release of names of alleged violators. In a recent case involv- 
ing the availability for discovery purposes of a list purporting to identify 
taxpayers who failed to file federal income tax returns. Lord, C. J. 
wrote: 

"While the privacy of individuals should be zealously pro- 
tected, it must be balanced against the interest of the defen- 
dant in adequately preparing his defense ... in balancing the 
interest of the individuals whose names appear on the list 
against the interest of the defendant-taxpayer, the balance is 
heavily in favor of the defendant-taxpayer." United States v. 
Liebert, — F. Supp. — , 43 USLW 2180 (ED Pa., 1974). 

It is my conclusion that the right to privacy of the candidates on your 
list must give way to the public's need for information in the intelligent 
exercise of the right to vote. This conclusion is supported by such cases 
as New Yorl< Times Co. v. Sullivan, 376 U.S. 254 (1964) which encour- 
aged public disclosure regarding the conduct of public officials, and 
Rosenhloom v. Metromedia, Inc., 403 U.S. 29 (1971), which further 
elucidated the fundamental nature of the public's so-called "right to 
know." In Fritz v. Gorton, 83 Wn.2d 275, 517 P. 2d 911 (1974) and in 
County of Nevada v. MacMillen, 11 Col. 3d 662, 522 P. 2d 662 (1974), 
the highest courts of Washington and California respectively have bal- 
anced the privacy rights of candidates against the public's right to know. 
Both cases involved constitutional challenges to state disclosure laws 
similar to Chapter 55. In both of these state cases the New York Times 
and Rosenhloom cases were cited with approval, and in both the balance 



I'D. 12 129 

was struck in favor of the policy of disclosure. It is, therefore, my opin- 
\on that the right of privacy of the individuals on the list of alleged vio- 
lators does not erect a constitutional bar to the publication of that list. 

It is also my opinion that there is no statutory bar to the publication of 
a list of names of those who have failed to file reports. Section 2A of 
Chapter 55 states that "the same provisions with reference to secrecy 
which govern proceedings of a grand jury shall govern all proceedings 
before the director.'' 

The secrecy provisions of Section 2A must be read in conjunction 
with Section 13 of Chapter 277 which provides: 

"No grand juror shall be allowed to state or testify in any 
court in what manner he or any other member of the jury 
voted on any question before the grand jury, or what opinion 
was expressed by any juror relative thereto. In charging the 
grand jury, the court shall remind them of the provisions of 
this and the preceding sections." 

It is my opinion that Section 2A therefore only prohibits you from 
disclosing the testimony and opinions expressed in the hearings you 
conduct. 

I further call your attention to the requirement of Section 2A that you 
respond with reasonable promptness to requests for information from 
members of the public and to the new definition of the phrase "public 
record" contained in General Laws Chapter 4, Section 7. 

Because it would be impossible for me to undertake the required 
balancing test without specific knowledge of the violations involved, I 
may not respond categorically to your second question. I can envision 
cases in which a premature release of information would not only result 
in a denial of fundamental fairness and violate one's right to privacy, but 
would also invoke the privacy exception to the public records rule em- 
bodied in Chapter 4. Section 7(c), and possibly violate the secrecy pro- 
visions of Chapter 55, Section 2A. I therefore conclude that determina- 
tions of the wisdom of pre-trial and pre-indictment release of information 
must be dealt with on a case-by-case basis, and the better practice would 
be to seek an opinion at the time of said investigation. 

In response to your third question, I cite to you the language of Chap- 
ter 55, Section 2A, concerning the powers of your office: 

"The director shall have the power and authority to inves- 
tigate the legality, validity, completeness and accuracy of all 
reports and actions required to be filed and taken by candi- 
dates, treasurers, political committees and any other person 
pursuant to this chapter and any other laws of the common- 
wealth pertaining to campaign contributions and expendi- 
tures. He may require, by summons, the attendance and tes- 
timony under oath of witnesses and the production before 
him of books and papers relating to any matter being investi- 
gated by him ..." 



130 P.D. 12 

There is no conflict between this language and the provisions of Chap- 
ter 859. The investigatory and summonsing powers conferred upon your 
office by Chapter 1 173 are clearly still in existence and provide an inter- 
nal method whereby you may compel the filing of reports. 

Furthermore. I interpret the last paragraph of Section 2 A to mean that 
you may refer matters to the Attorney General, even without proof that 
the alleged violators actually received notice. Failure to file is governed 
not only by Section 2A but also by Sections 23 and 24 of Chapter 55. 
The manifest intent of all three sections is to erect statutory machinery 
to compel the filing of reports. Individual candidates and treasurers are 
protected from undue publicity and unnecessary prosecution by the 
availability of a hearing before the director. That hearing is not a man- 
datory step in bringing violators to justice, but provides instead an op- 
tional opportunity for those charged with violations to avoid further 
prosecution. 

The hearing before the director is in many respects analogous to a 
clerk's hearing prior to the issuance of a complaint in district court. See 
General Laws, Chapter 218, Section 35A. In both instances a hearing is 
not a prerequisite to a valid prosecution. In both instances, however, 
once a hearing is properly requested a prosecution should not commence 
until the hearing has been completed. I, therefore, conclude that alleged 
violators of the filing requirements of Chapter 55, Section 16, may not 
avoid the sanctions of the law by failing to accept their mail. Thus, you 
may refer these violations to the Attorney General without a formal 
proof of receipt. 

At the start of this opinion, I referred to an opinion of the Attorney 
General issued to you on December 4, 1974. As that opinion noted, the 
conflicting provisions of existing election laws can only be reconciled by 
the legislature. Although you can issue clarifying rules and regulations, 
and I can respond to your specific questions in opinion form, the public 
interest will only be served when Chapter 55 is rewritten in a fashion 
incorporating the sweeping reforms of both Chapter 1173 and Chapter 
859. 

Very truly yours, 

FRANCIS X. BELLOTTl 

Attorney General 

Number 56. March 26. 1975 

Mr. Howard N. Smith 

Secretary 

Executive Office of Manpower Affairs 

Charles F. Hurley Building — 4th Floor 

Boston, MA 02114 

Dear Secretary Smith: 

On December 30, 1974, the Secretary of Manpower Affairs requested 
an Opinion of the Attorney General concerning a computerized man- 
agement information system which the Executive Office of Manpower 



P.D. 12 131 

Affairs proposed to establish to implement the Comprehensive Em- 
ployment and Training Act of 1973 (CETA), P.L. 93-208. 87 Stat. 839. 
Specifically, the Secretary wanted to know: 

(a) whether it was permissible to ask if applicants for CETA posi- 
tions have criminal records, and 

(b) whether applicants could be required to furnish their Social Se- 
curity numbers, so that the Executive Office could easily examine 
records of the Department of Public Welfare and the Division of 
Employment Security. 

With regard to offender status. I am of the opinion that the Executive 
Office may ask applicants for CETA positions whether they have crimi- 
nal records but it must inform such applicants that certain Massachu- 
setts statutes permit them to decline to furnish certain types of informa- 
tion. In addition, if the Executive Office of Manpower Affairs wishes to 
corroborate information concerning criminal histories, it must have been 
deemed eligible to gain access to criminal offender record information 
pursuant to Massachusetts statutes, detailed below. 

With regard to requesting the Social Security Number (SSN). the Ex- 
ecutive Office is seeking the SSN in order to check records of the De- 
partment of Public Welfare and the Division of Employment Security. I 
am of the opinion that the SSN may be required of persons hired under 
CETA, but that it may not be required of applicants. Additionally, it is 
legal for the Executive Office of Manpower Affairs to examine client 
records of the Division of Employment Security and the Department of 
Public Welfare. 

The basis for my conclusions are set forth below: 
1. Criminal Records 

The Executive Office of Manpower Affairs has good reason to in- 
quire whether applicants for CETA position have criminal histories 
because offenders, as defined in the federal regulations, are a "Spe- 
cial Manpower Target Group" for purposes of providing em- 
ployment and job training pursuant to Title 1 and 11 of CETA and 
Title VI of CETA. as added by the Emergency Jobs and Unem- 
ployment Assistance Act of 1974. P.L. 93-567. 88 Stat. 1845. See 29 
C.F.R. 94.4 (bb), 39 Fed. Reg. 19886, 19888 (June 4, 1974). There is 
nothing in Massachusetts Law which forbids a potential employer 
from seeking information concerning criminal histories of applicants. 
However, forms for employment are required to contain a specific 
statement that applicants with sealed records do not have to reveal 
the existence of such criminal histories. G.L. c. 276. §§ lOOA and 
lOOC. Thus, the Executive Office must amend its application form 
to incorporate this required statement in order that applicants for 
CETA position may elect whether or not to reveal the existence of 
sealed records. In addition, G.L. c. 151B, § 4, clause 9, as amended 
by St. 1974. c. 531, forbids employers from seeking information 
from applicants concerning arrests for which no conviction resulted, 
certain first convictions for minor offenses and for any misdemeanor 
where the date of conviction or the termination of incarceration, 



132 P.D. 12 



whichever occurred later, happened more than five years before the 
application for employment; provided that the applicant was not 
convicted of any other offense within the preceding five year period. 
Because the federal CETA regulations define an offender as an in- 
dividual who is "subject to any stage of the judicial, correctional, or 
probationary process," there is no conflict between federal and state 
laws. Mass. G.L. c. 15 IB. § 4. clause 9. forbids inquiry concerning 
conduct where the criminal justice process will have ceased long be- 
fore the application for CETA employment. Thus to satisfy the fed- 
eral goal of hiring offenders while preserving the individual's privacy 
contemplated in state law. the Executive Office of Manpower Af- 
fairs need only make clear to applicants that it is seeking only active 
criminal histories and not old minor offenses such as enumerated in 
G.L. c. 15 IB. § 4, which have no relationship to the definition of an 
"offender" in the federal regulations. See 29 C.F.R. 94.4 (bb); 39 
Fed. Reg. 19886, 19888 (June 4, 1974). Finally, if the Execufive Of- 
fice of Manpower Affairs desires to corroborate information fur- 
nished by applicants concerning criminal histories, it must first re- 
ceive certification for such access pursuant to G. L. c. 6, § 172(b) 
and Regulation 2.16 of the Criminal History Systems Board. 
2. Social Security Number 

The Executive Office of Manpower Affairs may not require appli- 
cants for CETA positions to furnish their Social Security Number 
because of the restrictions contained in Section 7 of the Privacy Act 
of 1974. P.L. 93-579. 88 Stat. 1896. 5 U.S.C. 552a (7), which reads 
as follows: 

A.(l) It shall be unlawful for any Federal, State, or local govern- 
ment agency to deny any individual any right, benefit, or 
privilege provided by law because of such individual's refusal 
to disclose his social security number. 
(2) The provisions of paragraph (1) of this subsection shall not 
apply with respect to — 

(a) Any disclosure which is required by Federal statute, 

or 

(b) The disclosure of a social security number to any Federal 
or State or local agency maintaining a system of records in 
existence and operating before January 1, 1975, if such dis- 
closure was required under statute or regulation adopted 
prior to such date to verify the identity of an individual. 

B.Any Federal, State, or local government agency which requests 
an individual to disclose his social security account number shall 
inform the individual whether the disclosure is mandatory or vol- 
untary, but what statutory or other authority such number is so- 
licited, and what uses will be made of it. 

Section 6109 of the Internal Revenue Code and the regulations inter- 
preting it require employees to furnish their SSN to their employers 
since the SSN is the personal identifier for income tax purposes. Inter- 
nal Revenue Code of 1954, Sec. 6109, 26 U.S.C. 6109; as amended by 
P.L. 87-361; I.R.S. Regs. 1.6109-1; 26 C.F.R. 6109. Pursuant to this 



P.D. 12 133 

section, the Executive Office of Manpower Affairs may require persons 
actually employed under CETA to furnish their SSN. However, there is 
nothing in the Internal Revenue Code nor anywhere else in state or fed- 
eral statute or regulation which requires applicants for employment to 
furnish their SSN. Therefore, although the Executive Office may seek 
the SSN from applicants, it must inform them that giving the SSN is 
voluntary and that, if given voluntarily, the SSN will be used to check 
Division of Employment Security and Department of Public Welfare 
records. No person otherwise eligible for CETA employment can be 
denied such employment on account of refusal to furnish the SSN. 

Statutory authority does exist to permit the Executive Office of Man- 
power Affair to have access to the records of clients of the Division of 
Employment Security and the Department of Public Welfare. G. L. c. 
15 1 A. § 64. authorizes the Director of the Division of Employment Se- 
curity to furnish information concerning recipients of unemployment 
compensation to ""any agency of the Commonwealth . . . charged with 
the . . . administration of assistance through public employment ..." I 
interpret this statute together with the role of the Executive Office of 
Manpower Affairs under CETA as permitting the exchange of client in- 
formation between the Division of Employment Security and the Execu- 
tive Office for the purposes of implementing CETA. 

I also conclude that officials of the Executive Office may have access 
to client records of the Department of Public Welfare. G. L. c. 66, § 
17A permits such records to be: 

"open to inspection only by public officials of the Common- 
wealth, which term shall include members of the general court, rep- 
resentatives of the federal government, and those responsible for 
the preparation of annual budgets for such public assistance, the 
making of recommendations relative to such budgets, or the ap- 
proval or authorization of payments for such assistance, or for any 
purposes directly connected with the administration of such public 
assistance . . ." 
There are criminal penalties for illegal disclosure of such records. G. 
L. c. 271 § 43. The Secretary of Manpower Affairs is eligible to receive 
information concerning welfare recipients as a public official of the 
Commonwealth. The list of public officials enumerated in the statute is 
suggestive rather than exclusive consistent with the common meaning of 
the word ''include." see Schliickehrier v. Arlington Mutual Insurance 
Company, 8 Wis. 2d. 480. 99 N.W. 2d. 705. 707 (1959). In order to fol- 
low Massachusetts principles of statutory construction and give each 
word its ordinary meaning, the statute must be read to give all public 
officials employed by the Commonwealth and certain employees of the 
federal government access to Department of Public Welfare recipient 
files. See Finance Committee of Falmouth v. Falmouth Board of Public 
Welfare, 345 Mass. 579, 188 N.E. 2d 848 (1963); cf. 1956 Op. Atty. 
Gen. 70. 

Sincerely, 

FRANCIS X. BELLOTTI 

Attorney General 



/34 P.D. 12 

Number 57. April 25, 1975 

Honorable Vita J. Pigaga, Director 
Health, Welfare and Retirement 

Trust Funds Board 
22 Batterymarch Street 
Boston, Massachusetts 02109 

Dear Mr. Pigaga: 

General Laws, c. 31, § 461 provides, in part: 

"Whenever a person is separated from the official or labor 
service for layoff due to lack of work or lack of money or for 
abolition of position, his name shall be placed by the director 
on the reemployment list; and if a person is separated from 
such service because of resignation on account of illness his 
name shall be placed thereon upon his request in writing 
made within two years from the date of such separation. The 
name of any person so placed on the re-employment list shall 
remain thereon until he is appointed to a position after certifi- 
cation from such list or reinstated to a civil service position, 
but in no event for longer than two years. This section shall 
not apply to persons originally employed on requisition for 
temporary service or to provisional appointees. Thereafter, 
on requisition to fill any position which, in the judgment of 
the director, can be filled from such re-employment list, the 
director, before certifying from the regular list, shall certify 
from such re-employment list, in accordance with the rules 
relative to certification, the names of persons then standing 
thereon in the order of the dates of their original appoint- 
ment." 

Effective July 1, 1975, the word "administrator," meaning "Personnel 
Administrator" as established by St. 1974, c. 835, § 4, will replace the 
word "director" in the above paragraph, meaning Director of the Divi- 
sion of Civil Service. Otherwise, the language of the paragraph will re- 
main the same. 

Relative to the above provisions, you have informed me that funding 
of the operations of the Board will cease on July 1, 1975. As a result, the 
Civil Service employees of the Board will be separated from service 
"for lay-off due to lack of work or lack of money or for abolition of posi- 
tion" and will be eligible for re-employment under the section. 

On the basis of the above facts, you have requested my opinion on the 
following questions: 

1. May the above-described employees who are placed on the 
re-employment list be certified to any position for which 
they are generally qualified, regardless of the nature of their 
previous position with the Board? 

2. May the above-described employees be placed on the re- 
employment list prior to July 1, 1975? 



P.D. 12 135 



With respect to your first question. I find no restriction on the certifi- 
cation of individuals from the re-employment list under section 461 other 
than that, in the judgment of the Director/Administrator, a given indi- 
vidual be generally qualified for the position to which he is certified, and 
that individuals be certified for re-employment in the order of dates of 
their original appointment. Accordingly, I answer your first question in 
the affirmative. 

With respect to your second question, I believe that the language of 
section 461 makes it clear that no employee is eligible to be placed on 
the re-employment list until he is actually separated from service. As the 
Civil Service employees of the Board will not be so separated until July 
1. 1975, I answer your second question in the negative. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 58. May 8, 1975 

Honorable David M. Bartley 

Speaker of the House 

House of Representatives 

Room 356, State House 

Boston, Massachusetts 02133 

Dear Mr. Speaker: 

By Resolution No. 5828 of April 16, 1975, the House of Representa- 
tives has asked whether the Secretary of the Executive Office of Man- 
power Affairs constitutionally may refuse to expend funds which have 
been appropriated in accordance with the expressed intent of the Gen- 
eral Court. Additionally, 1 have been asked whether the Secretary has 
the constitutional authority to refuse to expend a particular item which 
was appropriated for Fiscal Year 1975, to carry out the provisions of 
chapter 1038 of the Acts of 1973. 

It is my opinion and the House of Representatives is so advised, that 
the Secretary of the Executive Office of Manpower Affairs does not 
have the constitutional right to refuse to expend funds appropriated by 
the General Court, except insofar as that refusal to expend funds is in 
furtherance of such legislative purposes as may be contained in the 
duly-enacted laws of this Commonwealth. 

In particular, it is my opinion and the House of Representatives is so 
advised, that the Secretary does not have the constitutional authority to 
refuse to spend the $500,000 which was appropriated by the General 
Court to fund chapter 1038 of the Acts of 1973, for reasons which are 
unrelated to the purposes of that legislation, to wit, "to establish a pro- 



136 P.D. 12 

gram for financial assistance to those public or nonprofit agencies which 
promote or provide services for tourism, conventions, travel and recrea- 
tion in the commonwealth." 

Part II, c.l, §1, art. 4 of the Massachusetts Constitution and art. 63, 
§3 of the Amendments thereto, place the power to issue and dispose of 
revenues in the General Court. The appropriation of funds is an exclu- 
sively legislative function. Opinion of the Justices, 302 Mass. 605, 
612-13, 19 N.E. 2d 807, 813 (1939). 

"The power to appropriate public funds for the payment of 
expenses incurred in maintaining the State government is ves- 
ted in the Legislature ..." Baker v. Commonwealth, 312 
Mass. 490, 493, 45 N.E. 2d 470, 472 (1942). 

The power of the Executive Branch to control appropriations is 
placed in the Governor, who may recommend expenditures in his pro- 
posed budget (Mass. Const., Amendments art. 63, §2), may veto a bill 
(Mass. Const., Part II, c.l, §1, art. 2), or may veto one or more items of 
a money bill (Mass. Const., Amendments, art. 63, §5). Inasmuch as the 
Governor's power to control appropriations is limited to making rec- 
ommendations to the Legislature or exercising a veto which may be 
overridden by the Legislature, the power to apppropriate funds remains 
solely in the hands of the Legislature. 

A bill which is signed by the Governor, or which is passed over his 
veto, becomes the law of this Commonwealth. Mass. Const., Part II, 
c.l, §1, art. 2. Similarly, if an item in a money bill has been vetoed by 
the Governor, but the veto has been overridden by the General Court, 
that item "shall have the force of a law." Id. Thus, duly-enacted ap- 
propriations are laws of this Commonwealth. 

It is, of course, the constitutional duty of the Governor and his coun- 
cilors to direct the affairs of the Commonwealth, "agreeably to the con- 
stitution and the laws of the land." Mass. Const.. Part II. c.2, §1, art. 4. 

"The power of suspending the laws, or the execution of the 
laws, ought never to be exercised but by the legislature, or by 
authority derived from it. to be exercised in such particular 
cases only as the legislature shall expressly provide for." 
Mass. Const.. Part I. art. 20. 

The power to enact laws and the power to suspend those laws, in 
whole or in part, has been placed solely in our Legislature, insofar as 
those laws are constitutional. Any doubt as to this point has been re- 
solved by Part I, art. 30 of the Massachusetts Constitution, which 
states: 

"In the government of this commonwealth . . . the execu- 
tive shall never exercise the legislative and judicial powers, or 
either of them ... to the end it may be a government of laws 
and not of men." 
The power to enact laws for the expenditure of public funds has been 
placed in the Legislature by our Constitution. The role which the Execu- 
tive Branch can play, in the determination of what funds will be spent on 



P.D. 12 137 



what programs and in what amounts, has been constitutionally subju- 
gated to the will of the Legislature. The general principle with which we 
are concerned was well-stated by Chief Justice John Marshall, speaking 
of the federal constitutional scheme* which was derived from that of 
Massachusetts. 

"The difference between the departments undoubtedly is. 
that the legislature makes, the executive executes, and the 
judiciary construes the law . . ."" H'ciynuin v. Soiitluird, 23 
U.S. (10 Wheaton) 1, 44 (1825). 

If an expenditure is lawful and constitutional, it is the duty of the Ex- 
ecutive Branch to take the necessary steps to secure the expenditure of 
the funds. Opinion of the Justices, 309 Mass. 609, 625, 35 N.E.2d 5, 15 
(1941); Mass. Const., Part II, c. 2, § 1, art. 11. The Governor and his 
Council may question whether an expenditure is in accord with the ap- 
plicable legislation, but they may not question whether the expenditure 
should be made, since that is a legislative function. It is the duty of the 
Executive Branch, "if such payment is 'in accordance with the law,' to 
issue a warrant accordingly." Opinion of the Justices, 309 Mass. 609, 
625, 35 N.E.2d 5, 15 (1941). Insofar as an expenditure is lawful and con- 
stitutional, "the Governor and the Council have no right to refuse to 
honor such obligations or liabilities even though they may doubt the 
wisdom or expediency of incurring such obligations or liabilities." Id. at 
627, 35 N.E.2d at 16. 

The direct question which is answered herein, concerning the con- 
stitutional authority of the Secretary of the Executive Office of Man- 
power Affairs, does not appear to have been answered in prior decisions 
in this Commonwealth. However, the conclusions I reach are at least 
consistent with, if not dictated by. opinions of my predecessors in office 
and a very recent decision by Justice Moriarity. of the Superior Court. 
Trustees of the Sti^matine Fathers v. Marchand, Equity No. 36050 
(1974); 13 Opinions of the Attorney Genend 143 (Nov. 26. 1963); 11 
Opinions of the Attorney General 15 (August 9, 1949); 3 Opinions of the 
Attorney General 226 (April 26. 1909). 

"The Governor and Council have no right to withhold an 
appropriation by refusing to draw a warrant therefor merely 
because such appropriation is thought by them to be unwise. 
The time for the Governor to object to an appropriation is 
when the act or resolve comes before him for signature after 
it has been enacted by the Legislature. That power is always 
open to him, and should be exercised when in his judgment 
an expenditure is thought by him to be unwise or unwar- 
ranted." 3 Opinions of the Attorney General 226, 228 (April 
26, 1909). 



"In the p.ist three ye;iis. more th;in 50 L S. District Courts, several U.S. Courts of Appeals and the L.S. Supreme 
Court have all reieeted the proposition that the federal txecutive could impound tunds appropriated hy Congress, 
where the impoundment was for non-program related reasons, hu limn \ ( iiv nl Vin )iiik. 4} L.S.I..W. 4209 
(L.S. heb. IX. I'ilf'). 



138 P.D. 12 



1 turn now to the first question asked, with respect to the Secretary's 
general constitutional authority to refuse to spend appropriated funds. 
The Secretary is bound to abide by the laws of this Commonwealth, as 
declared by the Legislature. Because appropriations are laws of the 
Commonwealth, the Secretary is bound to respect those laws and may 
not act in a manner contrary to the appropriation law, as supplemented 
by the underlying legislation which concerns each program and any 
other relevant legislation. Insofar as a refusal to spend appropriated 
funds is contrary to ''the expressed intent of the general court,'' as 
stated in the question posed by the House of Representatives, that re- 
fusal would be unlawful. 

Second, the specific question has been asked as to whether the Sec- 
retary may refuse to spend $500,000 appropriated to fund chapter 1038 
of the Acts of 1973, during Fiscal Year 1975. Initially, I note that chap- 
ter 1038 (G.L. C.23A, §14) apparently is to be implemented by the De- 
partment of Commerce and Development, rather than the Secretary of 
the Executive Office of Manpower Affairs. However, the Secretary has 
been directed to "establish guidelines in which to regulate the dispersal 
of funds under this section," so that he seems to have at least some 
supervisory authority concerning implementation of the program. 

My conclusion with respect to the hypothetical* refusal to spend 
$500,000 for chapter 1038 is that such action would, at least on its face, 
be unlawful. The language of chapter 1038 is mandatory, with the verb 
"shall" used repeatedly; there is nothing in the Fiscal Year 1975 ap- 
propriation act to indicate further discretion not to spend these monies; 
and the refusal to spend any part of the sum appropriated ordinarily 
would seem not to be in furtherance of the legislative purpose in appro- 
priating the funds. 

I trust that this opinion has been responsive to the inquiry by the 
House. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



'By letter of May 2. 1975. Secretary Smith directed the Acting Commissioner of the Department of Commerce and 
Development to implement chapter 1038 "in accordance with the requirements established by law." 



P.D. 12 139 



Number 59. May 27. 1975 

Mr. John A. York 

Deputy Director 

Office for Children 

120 Boylston Street 

Boston, Massachusetts 02116 

Dear Mr. York: 

You have requested my opinion regarding the interpretation of certain 
sections of Chapter 119 of the Massachusetts General Laws. You have 
informed me that the specific questions which you have posed to me 
were the result of concerns orally communicated to members of your 
staff by officials of the Department of Health, Education and Welfare 
with respect to the Commonwealth's eligibility for federal funding undfer 
the Child Abuse Prevention and Treatment Act ( P.L. 93-247). You 
have further informed me that these questions were raised orally by the 
Department of Health, Education and Welfare subsequent to the receipt 
of the Commonwealth's application for funding and that the Department 
has requested that your office seek my opinion as to five specific matters 
concerning the "'intent and practice" under G. L. c. 1 19, §§ 51A-51G. I 
will address these five issues separately. 

First, you have sought my opinion concerning use of the adjective 
"serious" in G. L. c. 119, § 51 A. Section 51A generally requires that 
certain enumerated professionals, i.e. physicians, nurses, teachers, 
policemen, etc., who in their professional capacity "shall have reason- 
able cause to believe that a child under the age of sixteen years is suffer- 
ing serious physical or emotional injury resulting from abuse," report 
such condition to the Department of Public Welfare immediately. Sec- 
tion 51 A also provides that any other person may make a report to the 
Department "Mf any such person has reasonable cause to believe that a 
child is suffering from or has died as a result of such abuse or neglect." 
Significantly, the term "serious physical or emotional injury" is deleted 
from that portion of Section 51 A which deals with permissible reports of 
child abuse as opposed to mandatory reports of child abuse. 

It is my opinion that the term "serious physical or emotional injury" 
applies only to those instances in which certain enumerated profession- 
als are required, as a matter of law, to make reports to the Department 
of Public Welfare. Section 51 A, however, permits and, in fact, encour- 
ages the reporting of all instances of child abuse without limitation and 
without regard to the seriousness of the injury. Moreover, I have been 
informed that it is the practice and policy of the Department of Public 
Welfare not to refuse to accept any report of an injury. In practice, the 
Department of Public Welfare will accept and investigate any report of 
an injury to determine whether a child has any symptoms of abuse and 
neglect. Accordingly, I must conclude that the intent and practice under 
Chapter 119 of the Massachusetts General Laws is to assure the protec- 
tion of every child and not to restrict access to protective services or to 



140 P.D. 12 

limit the reporting of cases to instances of "serious injury." Seriousness 
is one criterion in determining when a report is mandated rather than 
permitted, but the reporting of injury and access to services is in no 
manner restricted under Chapter 1 19 to "serious injury." 

Secondly, you have sought my opinion as to whether parents who fail 
to provide medical services to children on the basis of religious beliefs 
will be subject to prosecution for such failure. Also, you have restated a 
concern of the Department of Health. Education and Welfare as to 
whether services will be available to children who are unable to obtain 
medical assistance because of their parents' religious beliefs. 

The Massachusetts child abuse reporting law does not specifically ad- 
dress itself to the relationship between the religious beliefs of the parent 
and failure to provide medical care. However, G. L. c. 273, § 1 does 
address itself to that precise issue. General Laws. c. 273, § 1 provides. 
inter alia, as follows: 

"A child shall not be deemed to be neglected or lack 
proper physical care for the sole reason that he is being pro- 
vided remedial treatment by spiritual means alone in accord- 
ance with the tenets and practice of a recognized church or 
religious denomination by a duly accredited practitioner 
thereof." 

General Laws. c. 273. § I is a criminal statute and it expressly pre- 
cludes imposition of criminal liability as a negligent parent for failure to 
provide medical care because of religious beliefs. However, the intent of 
Chapter 119 is, clearly, to require that children of such parents be pro- 
vided services whenever the need arises. Clearly under Chapter 1 19 
children may receive services notwithstanding the inability to prosecute 
parents in such cases. 

Thirdly, you have stated the term "reasonable cause to believe," as 
used in G. L. c. 119, § 51A, has raised questions as to whether profes- 
sionals, required to make reports, will be further required to document 
their reasons for believing a child is abused or neglected and as to 
whether the term restricts the acceptance of reports by the Department. 
The statutory language of G. L. c. 119. § 51 A is clear and unmistake- 
able. Section 51 A requires that a professional immediately report by oral 
communication any instance of serious injury. A requirement of 
documentation of reasonable cause would be totally inconsistent with 
the clear intent of Section 51 A to protect any child who may be the sub- 
ject of abuse and neglect. Accordingly it is my opinion that the phrase 
"reasonable cause to believe" is not intended to restrict reporting of 
cases of abuse or neglect or acceptance of such reports. Similarly, Sec- 
tion 51A does not require written documentation of "reasonable cause" 
nor does the Department of Public Welfare require such documentation 
as a matter of practice. 

Fourthly, the Department of Health. Education and Welfare has re- 
quested that you seek my opinion as to whether the Massachusetts child 
abuse statutes are intended to apply to threatened harm to children as 



P.D. 12 141 

well as actual harm. 1 note that Section 51 A addresses itself to both 
physical and emotional injury. Thus, in answer to your fourth question, 
I must conclude that Section 51 A is intended to protect children from 
the emotional harm o\' threatened injury as well as from the physical 
harm of actual injury. 

Finally, you have requested my opinion as to the confidentiality of all 
records and reports of child abuse. General Laws c. 119, § 51 F ex- 
pressly provides for the confidentiality of abuse and neglect reports. 
That Section, in pertinent part, provides: 

"Data and information relating to individual cases in the 
central registry shall be confidential and shall be made avail- 
able only with the approval of the commissioner or upon 
court order." 

My understanding is that the Department of Health, Education and 
Welfare is concerned that the parents of a child, reported as an abused 
child pursuant to Section 51 A, will have access to the name of the com- 
plainant. I have been informed that the Commissioner of Public Welfare 
will deny a parent's request for the name of a complainant where grant- 
ing the request is clearly contrary to the best interests of the child. 
However, Section 51 F does permit disclosure "upon court order" and 
presumably there would be instances in which a parent could obtain ac- 
cess to a complainant's name in the context of the particular legal issue 
which is before the court. It would be inappropriate for me to speculate 
as to those instances in which a court might deem it appropriate to order 
that a parent obtain access to the name of the complainant. However, I 
do conclude that, consistent with the mandate of Section 51F that "child 
abuse" reports be confidential, the names of complainants must not be 
disclosed unless the Commissioner concludes that such disclosure is in 
the best interests of the child or unless the Commissioner is ordered to 
make disclosure pursuant to a court order. 

Very truly yours, 
FRANCIS X. BELLOTTl 

Attorney General 



Number 60. May 23, 1975 

Gregory R. Anrig 

Commissioner of Education 

Department of Education 

182 Tremont Street 

Boston, Mass. 02111 

Dear Mr. Anrig: 

You have requested an opinion in response to the following questions 
arising under the School Building Assistance Act, Chapter 645 of the 
Acts of 1948, as amended. 



142 P.D. 12 

1. Whether the Board of Education may elect to make bond or note 
reimbursement payments to local authorities according to the following 
two alternative payment schedules: 

(a) a schedule delaying the initial reimbursement until the assign- 
ment of a project number and dividing the total amount of the grant by 
the number of years remaining in the bond issue, a method equalizing 
the annual payments over the remaining life of the bond; 

(b) a schedule of payments commencing at the time of assignment of 
a project number and equaling the number of years of the bond issue. 

2. Whether multi-project bond issues yield an answer different from 
the one to your initial question. 

1. THE STATUTE 

Chapter 645 of the Acts of 1948 implements the policy of state finan- 
cial assistance to cities and towns in the construction of school build- 
ings. With various amendments since enactment, it remains the primary 
statute for this purpose. 

Briefly, each school building project undergoes the following chronol- 
ogy of development and financing. A need for the project is established 
and plans developed. The Board of Education approves the project. The 
locality issues bonds, usually of 20-year duration. The locality builds the 
project, with payment to contractors for work accomplished. The local- 
ity accepts the completed project and the Board of Education approves 
the final cost. The locality repays the bonds and the Commonwealth, by 
the Board of Education, reimburses a percentage of the cost. 

The statutory language controlling the schedule of bond or note reim- 
bursement payment appears in Section 9(d) of the Act, second para- 
graph. 

In the case of any approved school project to be financed 
in whole or in part from the proceeds of any sale of bonds or 
notes, the total construction grant shall be paid annually in 
equal parts to be determined by dividing the total grant by the 
number of years during which any indebtedness incurred for 
such project shall remain outstanding; provided, that if such 
number of years is less than five, the total grant shall be paid 
annually in five equal parts; and the payments hereinabove 
provided for shall begin in the calendar year in which the first 
payment of principal on account of such indebtedness shall 
become due and payable. In the case of any approved school 
project which is not to be financed from the proceeds of any 
sale of bonds or notes, the total grant shall be paid annually in 
five equal parts beginning in the calendar year in which the 
construction of such project has been commenced [emphasis 
supplied]. 
The third paragraph adds a pertinent provision regarding projects 
using the appropriation of funds from city, town or regional stabilization 
funds. Providing for reimbursement for such projects, it reads: 



P.D. 12 143 



. . . ; and in the case of a project for which indebtedness is 
incurred, the annual paxDicnts hercinahove provided for shall 
he^in in the calendar year in which the fast payment of prin- 
cipal on account of such indebtedness shall become due and 
payable, and in the case of a project which is not to be fi- 
nanced from the proceeds of any sale of bonds or notes, in 
the calendar year in which the construction of such project 
has been commenced [emphasis supplied]. 

These provisions, for annual reimbursement payments to begin in the 
calendar year in which the first payment of principal and interest be- 
come due and payable, stem from such a provision in the tlfth paragraph 
of the original Act. See Ch. 645 of the Acts of 1948. A policy of such a 
reimbursement schedule has endured the intervening 27 years of statu- 
tory amendment. 

II. PRESENT PRACTICE 

In your request for an opinion you describe the Board's actual prac- 
tice under the statute. "In practice the School Building Assistance 
Bureau makes no payment prior to the commencement of construction 
and a subsequent project number award." 

The reasons for this practice are apparently the following: Early in the 
life of the statute the Bureau adopted a policy conditioning payments on 
the filing of a project number of a locality. The request for a project 
number requires the locality to inform the Bureau of an executed con- 
struction contract for the project for which the indebtedness has been 
incurred. In this manner the Bureau in the spirit of caution, assures itself 
of a contract award before commencing reimbursement. In a number of 
cases the Bureau does not receive from the locality requests for a proj- 
ect number in time to make the first annual payments due on the indebt- 
edness. When the request is received at a later date, the Bureau makes a 
multiple payment consisting of a total of all the annual payments due 
when the request for the project number is received. 

In recent years these initial multiple payments have become burden- 
some, especially in the case of Boston. Also, the multiple payment sys- 
tem can result in excess reimbursement to a locality slow to begin con- 
struction. Before construction it may invest and profit on its bond rev- 
enues. The Commonwealth by initial multiple payment then reimburses 
the locality the requisite percentage of accumulated principal and in- 
terest due and payable to bondholders. Finally, your General Counsel 
informs this office that the Department of Administration and Finance 
will now not recommend appropriations to cover the multiple payments. 

III. CONTROLLING LAW 

In this setting I come to your precise questions. I begin with the gov- 
erning language of the statute, underscored above. A number of canons 
of statutory construction are relevant. 



144 P.D. 12 

The literal meaning of the words employed is the starting point. 
United States v. New England Coal & Coke Co., 318 F. 2d 138, 142 
(1st Cir. 1963). It constitutes the principal source of insight into legisla- 
tive purpose. Commissioner of Corporations and Taxation v. Chilton 
Club, 318 Mass. 285, 288 (1945). The words chosen by the Legislature 
must be given their plain meaning. G.L. c. 4, § 6, Third; 
Continental-Hyannis Furniture Co. v. State Tax Commission, 1974 
Mass. Adv. Sh. 2015, 2016; Commonwealth v. Thomas, 359 Mass. 386, 
387 (1971); Tilton v. Haverhill, 311 Mass. 572, 577 (1942). When the lan- 
guage and meaning of a statute are unambiguous, they must be respected 
and effectuated. //; re Chouinard, 358 Mass. Adv. Sh. 780, 782 (1971). 
Op. Atty Gen... Dec. 1, 1965, p. 191. I find the pertinent language of 
Chapter 645 to be plain and unambiguous. It does not require elaborate 
or literally inexact interpretation to accomplish the legislative policy. Cf. 
Medeiros v. Board of Election Commissioners of Fall River, 1975 Mass. 
Adv. Sh. 862, 869-870; Price v. Raihvax Express Agency, Inc., 322 
Mass. 476, 484 (1948); Cullen v. Ma\or of Newton, 308 Mass. 578, 
583-584 (1941). 

Very simply. Chapter 465, § 9(d), second paragraph, provides that 
reimbursement of bond or note indebtedness "shall begin in the calendar 
year in which the first payment of principal on account of such indebt- 
edness shall become due and payable." The language, of course, is 
mandatory. Its plain meaning draws support from the emphasized provi- 
sion of the third paragraph which emphasizes the distinction between 
general indebtedness and bonded indebtedness, reimbursement of 
which, again, "shall begin in the calendar year in which the first pay- 
ment of principal on account of such indebtedness shall become due and 

payable "A provision for such calendar year reimbursement has 

remained in force since enactment and throughout many amendments. 
The statutory language has generated no contradictory case law. 

Because the statutory language is plain, I must answer in the negative 
your question whether the Board of Education may choose alternative 
reimbursement schedules. The specific alternatives which you pose 
(listed above as subsections (a) and (b) of your question) would not 
comply with the mandatory procedure of the statute. 

In answer to the second part of your question, upon the facts pre- 
sented, I see no grounds on which a multi-project bond issue would pro- 
duce an answer different from the one to your initial question. Again, 
the statute mandates one schedule of reimbursement. It neither expres- 
ses nor intimates any distinction between single project and multi-proj- 
ect bond issues. Here, too, the answer is in the negative. 

Also, the controlling statutory language calls into question the de- 
ferred or multiple-payment system developed by the School Building 
Assistance Bureau. Because you have not requested an opinion as to its 
validity and because you might wish to submit additional information or 
law in the event of such a request, I do not now render a formal opinion 
on that point. 



P.D. 12 145 

Finally, as discussed above, 1 understand the practical advantages 
underlying your interest in the alternate reimbursement schedules posed 
by your request. 1 do not express any view as to the value or wisdom of 
those alternatives. 1 simply conclude that the controlling law presently 
does not permit them and therefore that they must come, if at all. 
through legislative change. 

Conclusion 

For the foregoing reasons, I answer all parts of your question in the 
negative. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 61. June 2. 1975 

Gregory R. Anrig 

Commissioner of Education 

Department of Education 

182 Tremont Street 

Boston, Mass. 02111 

Dear Commissioner Anrig: 

You have requested an opinion defining the respective authority of the 
Board of Education and of the Board of Library Commissioners over the 
personnel and affairs of the Bureau of Library Extension. This opinion 
requires consideration and construction of G.L. c. 15. § 9. 

The bureau of library extension shall operate under the di- 
rection of the board of library commissioners and subject to 
the supervision and control of the board of education. The 
board of library commissioners shall consist of five persons, 
residents of the commonwealth, one of whom shall be annu- 
ally appointed by the governor, with the advice and consent 
of the council, for five years. 

I read G.L. c. 15. § 9 in the setting of several related provisions. See, 
e.ii.. Marshal House, Inc. v. Rent Control Board of Brookline. 358 
Mass. 686, 698-699 (1971); Massachusetts Trustees of Eastern Gas & 
Fuel Associates v. United States, 202 F. Supp. 297 (1962), opinion 
amended 210 F. Supp. 822, affd 312 F.2d 214, aff d 377 U.S. 235 (1964). 

The first is G.L. c. 15, § 10. 

No member of the board of library commissioners shall re- 
ceive any compensation, but said board may annually expend 
not more than the amount appropriated for clerical assistance 
and for other necessary expenses. 

The second is G.L. c. 15, § 11. 

The board of library commissioners, with the approval of 
the board of education, may appoint a director and such other 
assistants as may be required, and with like approval may 



146 P.D. 12 

remove them. They shall be paid from the appropriation au- 
thorized in section ten. 
The third is G.L. c. 78, § 14. 

The commissioner of education shall make an annual report 
of the acts of the board of library commissioners, including 
therein a full detail of expenditures under [G.L. c. 78], sec- 
tion 19. 

Finally, G.L. c. 78, § 19, authorizes the Board of Library Commis- 
sioners to expend appropriated sums for the extension and encourage- 
ment of library services, to deal with the federal government in the for- 
mulation of state plans for federal grants, to contract with public and 
private bodies to improve library services in particular areas, and to re- 
ceive and disburse funds from private sources for library services. 

These provisions are to be read as an integral and consistent statutory 
scheme. Commonwealth v. Lamb, 1974 Mass. Adv. Sh. 713, 717; 
Mathewson v. Contributory Retirement Appeal Board, 335 Mass. 610, 
614-615 (1957). None of the foregoing provisions have produced relevant 
decisional law. 

G.L. c. 15, § 9 alone directly defines the relationship of the Board of 
Education and Board of Library Commissioners over the Bureau of Li- 
brary Extension. Its language is the first source of statutory construc- 
tion. Commissioner of Corporations and Taxation v. Chilton Club, 318 
Mass. 285, 288 (1945). No portion of the statutory language may be 
deemed superfluous. Commonwealth v. Woods Hole, Martha's Vine- 
yard & Nantucket S.S. Authy, 352 Mass. 617, 618 (1967). In this light 
the first sentence of § 9 becomes crucial. "The bureau of library exten- 
sion shall operate under the direction of the board of library commis- 
sioners and subject to the supervision and control of the board of educa- 
tion." The language allocates one sphere of authority, under the heading 
of "direction," to the board of library commissioners, and another 
sphere of authority, under the heading of "supervision and control," to 
the board of education. The language, of course, should receive its 
common meaning. G.L. c. 4, § 6. Resort to dictionaries alone is not 
helpful. The terms are often defined by one another. Little is added to 
their common and approved meaning. 

The relationship of the terms within the statute is more helpful. The 
"direction" of the board of library commissioners is made '' subject to'" 
the "supervision and control" of the board of education [emphasis 
supplied]. Clearly this phrase subordinates the authority of the board of 
library commissioners to that of the board of education. "Supervision 
and control" further imply an overriding authority. In particular, the 
comprehensive term "control" is unqualified. 

The statute reads harmoniously if one construes the "direction" of 
the board of library commissioners to encompass the on going and prac- 
tical operations of the bureau, and the "supervision and control" of the 
board of education to include the powers of review and approval. 

This construction draws support from a functional analysis of the lan- 
guage in the setting of the related statutes. If the words failed of any 



P.D. 12 



147 



obvious meaning, the courts would, of course, look to the operation of 
the bureau for guidance. See, e.^^.. Liberty Mutual Ins. Co. v. State Tax 
Commission, 1974 Mass. Adv. Sh. 895, 896-899; Industrial Finance 
Corp. V. State Tax Commission. 1975 Mass. Adv. Sh. 967, 977-978. The 
related statutes reveal that the board of library commissioners is em- 
powered to appoint and remove a bureau director and other assistants 
(G.L. c. 15, § 1 1). to expend appropriated sums, to create state plans for 
federal grants, to contract with public and private bodies, and to receive 
and disburse funds from private sources (G.L. c. 78, § 14). 

By contrast the Board of Education is to exercise the power of ap- 
proval over the appointment and removal of personnel (G.L. c. 15, § 
11). Also, the Commissioner of Education must make an annual report 
accounting for the acts of the Board of Library Commissioners and in 
full detail for expenditures of the latter body. Such a comprehensive re- 
sponsibility, especially for fiscal matters, implies a commensurate au- 
thority on the part of the Board of Education. 

Finally, I find no statutory language countervailing the conclusion that 
the authority of the Board of Library Commissioners is subordinate to 
that of the Board of Education. In this connection 1 have examined all 
materials submitted to this office by the interested bodies. Nothing 
therein persuades me that the authority of the Board of Library Com- 
missioners is competitive with, or greater than, the authority of the 
Board of Education. The Board of Library Commissioners does enjoy a 
legitimate sphere of authority. Nonetheless, that authority is subordinate 
to that of the Board of Education. Conceivably the Board of Education 
may abuse its overriding authority in particular instances. No such in- 
stance is charged here. Meanwhile, the hypothesis of abuse is no ground 
for the invalidation of otherwise legitimate authority. 

The present request for an opinion presents no more specific dispute 
than the need for a general definition of relative powers. This opinion is 
limited to such a general definition. 

CONCLUSION 

For the foregoing reasons, I conclude that overriding authority for the 
governance of the Bureau of Library Extension rests with the Board of 
Education and not with the Board of Library Extension. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 62. 

The Honorable Paul Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 



May 28, 1975 



Dear Secretary Guzzi: 
On May 7, 1975. you requested an Opinion of the Attorney General 



148 P.D. 12 

concerning amending the birth records of transsexuals pursuant to Chap- 
ter 46, section 13 of the General Laws. Specifically you wanted to 
know: 

a) whether town clerks and registers of vital statistics are required 
under Chapter 46, section 13 of the General Laws to correct facts not 
correctly stated in the birth records of a person who has been granted a 
legal name change and who has completed surgical sex reassignment 
upon proof beyond a reasonable doubt of those facts as required by 
Chapter 46, section 13; and 

b) what proof is relevant to establishing the correctness of facts re- 
specting a person's sex and name. 

With regard to the first of these questions, I am of the opinion that, in 
certain circumstances, town clerks and registers of vital statistics are re- 
quired to correct facts, as to sex and name, in the birth records of post- 
operative transsexuals. Chapter 46, section 13 states: 

"if the record relating to a birth . . . does not contain all 
the required facts, or // it is claimed that the facts are not 
correctly stated therein, the town clerk shall receive an 
affidavit containing the facts required for record, accom- 
panied by documentary evidence substantiating such facts 
beyond reasonable doubt, if made by a person required by 
law to furnish the information for the original record . . . He 
(the town clerk) shall file any affidavit . . . submitted under 
this section, and record it in a separate book kept therefor, 
with the names and residence of the deponent . . . and the 
date of the original record, and shall thereupon draw a line 
through any statement, or statements, sought to be corrected 
or amended in the original record, without erasing them, shall 
enter upon the original record the facts required to correct, 
amend or supplement the same in accordance with such af- 
fidavit . . . and forthwith, if a copy of the record has been 
sent to the state secretary and such city or town clerk a cer- 
tified copy of the corrected, amended or supplemented record 
upon blanks to be provided by the state secretary, noting 
thereon the documentary evidence submitted to substantiate 
the affidavit, and the state secretary and the city or town 
clerk shall thereupon correct, amend or supplement the rec- 
ord in his office.'' (emphasis added) 
The language of the statute is mandatory in requiring clerks to make 
the changes if two conditions are met. (cf. Section I3A of Chapter 46, 
allowing clerks wide discretion in making records of past births where 
no record exists at present.) First, the affidavit must be made by "a per- 
son required by law to furnish the information for the original record." 
Persons required to furnish information as to births taking place in or en 
route to Massachusetts (all pursuant to Chapter 46) are: 

a) Parents of the child (section 6, and, in the case of mothers, section 
4) 

b) Doctors attending the birth (sections 3 and 3B) 



P.D. 12 149 

c) Hospital administrators, where the birth took place in a hospital 
(section 3 and 4) 

d) Householders, where the birth look place in a house (section 6) 

e) Ship captains, where the birth took place at sea (section 7) 

Airplane pilots, where the birth took place on the plane (section 7A) 

No person is required to furnish information as to births which did not 
take place in or en route to Massachusetts. 

It should be noted that, for each birth, several people will most probably 
be required to furnish all the information needed for the record, so far as 
it is obtainable. It is also the case that if a person not required to supply 
the information for the original record seeks to file an affidavit, accom- 
panied by the documentary evidence discussed below, it may be ac- 
cepted by the clerk, at his discretion. 

The second condition which must be met before clerks are required to 
make the requested correction is that the affidavit must be "accom- 
panied by documentary evidence substantiating such facts beyond 
reasonable doubt."" Your second question asks what proof is relevant to 
establishing the facts respecting a person's sex and name and I answer 
as follows: 

Transsexualism is a phenomenon which has only been recognized re- 
cently and which is not yet completely understood by the medical or sci- 
entific community. Based on present medical knowledge, proof that the 
sex recorded on a birth certificate is not correct should consist of two 
items: 

(1) A sworn statement from a physician certifying that the person 
named in the birth record has completed sex reassignment surgery; and 

(2) A sworn statement from a physician certifying that the person 
named in the birth record is not of the sex listed on the birth record. 

Since the name recorded on the birth record is the name at birth and 
not the legal name of the individual (which can change many times), in 
general the only proof relevant to establishing the incorrectness of the 
name listed would be sworn statments from the person or persons who 
supplied the information for the original record certifying that the name 
as it appears on the record is inconsistent with the information supplied. 
However, since it is a matter of common knowledge that names are as- 
signed to children on the basis of their sex. the transsexual is an excep- 
tion to this general rule. When an individual presents the documentary 
evidence, discussed above, demonstrating that the sex listed on the birth 
record is incorrect, a logical inference attaches which, in my opinion, 
demonstrates beyond a reasonable doubt that the ''christian"", or non- 
familial, name or names listed on the record are also incorrect. The af- 
fidavit submitted should contain the name which corresponds with the 
individuaKs true sex. This should be accompanied by a certified copy of 
a court order establishing a new name. 



150 P.D. 12 

I would just say, in conclusion, that my opinion contained herein is 
limited to cases involving transsexuals and no analogies ought be drawn 
concerning other situations. 

Sincerely, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 63. June 6, 1975 

Honorable Paul H. Guzzi 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Secretary Guzzi: 

On April 29, 1975, you asked for an Opinion of the Attorney General 
on the following two questions: 

1) May the State Secretary lawfully permit a private company to mi- 
crofilm records on file in the office of the State Secretary in return for a 
copy of such microfilms to be supplied by the company at cost not in- 
cluding labor? 

2) If so, would any such arrangement be subject to laws relating to 
competitive bidding? 

My answer to the first question is yes. You have informed me that the 
records to be microfilmed are public records. The statutory definition of 
a public record makes clear that a record remains public "regardless of 
physical form or characteristics." G.L. c. 4, § 7, Paragraph twenty-six. 
When a person seeks a public record, he must request the government 
official to permit him to inspect the record and to furnish a copy upon 
payment of a reasonable fee, G.L. c. 66, § 10. The intent of the 
broadened public records law. Chapter 1050 of 1973, has been to make 
citizen access to public records easier. It is consistent with the intent of 
this law to permit a private company to microfilm records which have 
been maintained in paper form. The Secretary may charge a reasonable 
fee for this service, G.L. c. 66, § 10. 

In addition, the Secretary of State may properly determine that he 
needs to maintain microfilm as well as paper records and may contract 
for such microfilming. Microfilming of old or obsolete records has long 
been permitted by the Records Conservation Board for reasons of pres- 
ervation. There is no reason why presently needed records may not also 
be microfilmed. The contract price should reflect both the cost which 
the Secretary will pay for microfilming his own paper records and the 
reasonable fee to the company of its being furnished a cop> of the de- 
sired public records. The difference between the cost of microfilming 
and the reasonable fee is the contract price to be paid by the Secretary 
of State. 

Your second question is whether such an arrangement would be sub- 
ject to competitive bidding laws. 



P.D. 12 



151 



G.L. c. 7. § 22 provides, in part. "The commissioner of administra- 
tion shall . . . make rules, regulations and orders which shall regulate 
and govern the manner and method o( the purchasing, delivery and 
handling of. and the contracting for, supplies, equipment and other 
property for the various state departments, offices and commissions . . . 
such rules . . . shall include provision for the following: (1) The adver- 
tisement for and the receipt of bids for supplies and other property and 
the stimulation of competition with regard thereto;" 

While the microfilm copies may not be "supplies" or "equipment", I 
feel that they would fall within the category of "other property." Cer- 
tainly, their acquisition would come within the intent of section 22 and 
should be governed by advertisement for bids and competitive bidding. 

I would recommend that the Secretary of State draw his specifications 
and bid proposal and contact the Purchasing Agent who will process the 
bidding procedure. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 64. 
Mrs. Evvajean Mintz 
Director of Registration 
Division of Registration 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 



June 6, 1975 



Dear Ms. Mintz: 

The Board of Registration in Pharmacy has requested, through your 
office, that 1 render an opinion as to the constitutionality of G. L. c. 
1 12, § 24 insofar as that statute prohibits the registration as pharmacists 
of persons who are not citizens of the United States. For the reasons 
stated hereinafter, it is my opinion that G. L. c. 1 12, § 24 is unconstitu- 
tional in that it effectively prohibits persons who are not citizens of the 
United States from being registered to engage in the practice of phar- 
macy in the Commonwealth of Massachusetts. 

General Laws c. 1 12, § 24 provides, in pertinent part: 

"No certificate [of registration as a pharmacist] shall be 
granted under this section unless the applicant shall have 
submitted evidence satisfactory to the board that he is a citi- 
zen of the United States; provided, however, that an alien 
may be examined by the board of registration in pharmacy if 
he first offers evidence which is satisfactory to said board 
that he has filed his declaration of intention to become a citi- 
zen of the United States, and a certificate. may be granted, if 
he passes such examination. In case such applicant is subse- 
quently registered, his certificate of registration shall be re- 



152 P.D. 12 

voked and his registration cancelled, unless he shall present 
to the board, within five years following the issuance of said 
certificate, his naturalization papers showing that he is a citi- 
zen of the United States." 

Initially. I note that the statute does not present an absolute prohibi- 
tion against the registration of aliens as pharmacists. An alien who de- 
clares an intention to become a citizen may be registered as a pharmacist 
if he or she passes the board's certifying examination. However, the 
proviso of G. L. c. 112, § 24 which permits the registration of non- 
citizens of the United States as pharmacists is itself subject to the limita- 
tion that any non-citizen who does not become a citizen within five 
years of registration as a pharmacist, shall have his certificate of regis- 
tration revoked and his registration cancelled. Thus, G. L. c. 112, § 24 
limits the right to engage in the practice of pharmacy in the Common- 
wealth to citizens or to those who become citizens shortly after registra- 
tion. 

The United States Supreme Court has recently decided two cases 
which concerned the constitutional validity of citizenship requirements 
as pre-conditions, in one instance, to obtaining public employment and, 
in the other instance, to obtaining admission to the practice of law. 
Sugamum v. Doucall, 413 U.S. 634 (1973); In Re Griffiths, 413 U.S. 
717 (1973). In both cases, the Court held that the citizenship require- 
ment violated the Equal Protection Clause of the Fourteenth Amend- 
ment of the United States Constitution. In In Re Griffiths, supra, the 
Court was presented with a challenge to the constitutionality of a Con- 
necticut Supreme Court rule which required that all members of the 
Connecticut bar be citizens of the United States. The Griffiths Court 
cited Graham v. Richardson, 403 U.S. 365 (1971) for the following 
proposition: 

'' '[C]lassifications based on alienage, like those based on 
nationality or race, are inherently suspect and subject to close 
judicial scrutiny. Aliens as a class are a prime example of a 
'discrete and insular' minority . . . for whom such heightened 
judicial solicitude is appropriate.' " 413 U.S. at 721, citing 
403 U.S. at 372 (emphasis supplied). 

The citizenship requirements of G. L. c. 112, § 24 are, thus "inher- 
ently suspect"; consequently, the Commonwealth bears a heavy burden 
of justification to sustain the constitutional validity of the statute. 
McLaughlin v. Florida, 379 U.S. 184 (1964). In In Re Griffiths, supra, 
Connecticut did not carry its burden of justifying its exclusion of aliens 
from the practice of law as a means of protecting Connecticut's ac- 
knowledged interests in maintaining high professional standards for at- 
torneys. 413 U.S. at 727. It is my opinion, that G. L. c. 112, § 24, simi- 
larly, cannot be justified as necessary to maintaining high standards of 
professionalism among pharmacists. Accordingly, it is my conclusion 
that G. L. c. 112, § 24 is an unconstitutional violation of the Equal Pro- 
tection Clause of the Fourteenth Amendment and that the Board of 
Registration in Pharmacy should in the future refrain from enforcing the 



P.D. 12 153 

citizenship requirements of G. L. c. 1 12, § 24 with respect to the certifi- 
cation and registration of pharmacists. See Op. Atty. Gen. 1972/1973-11. 

Finally, 1 should emphasize that the Board of Registration in Phar- 
macy may in its discretion refuse to register as a pharmacist any person 
including an alien whom the Board deems to be unqualified to be regis- 
tered on the basis of uniform standards of qualification which are appli- 
cable to all candidates. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 65. June 12, 1975 

Gregory R. Anrig 

Commissioner of Education 

Department of Education 

182 Tremont Street 

Boston. Mass. 02111 

Re: Request for opinion as to the 
Constitutionality of Chapter 
1196 of the Acts of 1973. 

Dear Commissioner Anrig: 

You have requested an opinion as to the constitutionality of Chapter 
1196 of the Acts of 1973, amending G.L. c. 71, § 48, and authorizing 
local school committees to make free loans to private school pupils of 
text books purchased by the committee for use in the public schools. 

1. The Occasion for an Opinion. 

You first requested such an opinion in October 1974. In response by 
letter of November 4, 1974, Assistant Attorney General Walter H. 
Mayo III declined to render an opinion on the grounds that the question 
did not concern the performance of your duties [with citation to II Op. 
Atty. Gen. 100 (1899) ]. 

By letters of February 5 and March 18, 1975, you have asked that the 
Attorney General reconsider this position. In particular you point out 
that local school committees have sought the view of the Board of Edu- 
cation (letter of February 5, 1975); that the Commissioner, under G. L. 
c. 70, § 4 defines "reimbursable expenditures" to be remitted from the 
Commonwealth to local school committee, a duty which may require it 
to determine the constitutionality of text book programs (letter of March 
18. 1975); that under G. L. c. 15. § IG, the Board has a duty to take 
care that public schools comply with all laws governing education (ld.)\ 
and, finally, that the Anti-Aid Amendment, Mass. Const. Amend. Art. 
XVI 1 1, has implications for other issues, such as Chapter 766. the Spe- 
cial Education law (Id.). 

Of all these grounds, only one seems to require the requested opinion 
for the performance of your duties: the need to determine whether local 



154 P.D. 12 

text book programs generate "reimbursable expenditures" under G. L. 
c. 15, § IG. The policy of the Attorney General must be to limit advis- 
ory opinions to instances of genuine need because of finite resources and 
other primary responsibilities. 

Additionally, the very process of advisory opinion is difficult insofar 
as it requires the hazard of a prediction about the law in a factual vac- 
uum, a feature which discomforts even the Supreme Judicial Court and 
causes it to withhold precedential status from Opinions of the Justices. 
See, e.g.. Opinion of the Justices, 1974 Mass. Adv. Sh. 1015, 1029, and 
Opinions there cited; lerardi, Petitioner, 1975 Mass. Adv. Sh. 93, 106. 

However, one of your stated grounds does set out the need for an 
opinion. In addition, 1 am mindful of the practice of the Supreme Judi- 
cial Court to render decisions not strictly necessary when they will as- 
sist an agency in the performance of its duties, Pierce's Case, 325 Mass. 
649, 653 (1950), when the issue has been adequately presented or de- 
veloped by the parties. Boh Ware's Food Shop, Inc. v. Brookline, 349 
Mass. 385, 389 (1965), and especially when a decision will dispose of 
further unnecessary proceedings and delay. See, e.g.. Ciszenski v. 
Industrial Accident Board, 1975 Mass. Adv. Sh. 635, 645; School 
Committee of Springfield v. Board of Education, 1974 Mass. Adv. Sh. 
203 1 . With these purposes in mind, I turn to the merits of your question. 

II. The Constitutionality of Chapter 1196. 

Chapter 1196 added the following provision to G.L. c. 71, § 48: 
The committee, at the individual request of a pupil in a pri- 
vate school which has been approved under section one of 
chapter seventy-six, shall lend free of charge to him text 
books which shall be the same as those purchased by the 
committee for use in the public schools. Such text books shall 
be loaned free to such pupils subject to such regulations as 
the committee may prescribe. 

A. The First Amendment Question 

Until most recently, the constitutionality of such text book loan pro- 
grams appeared to have been settled by the Supreme Court's decision in 
Board of Education v. Allen, 392 U.S. 236 (1968). The Court upheld a 
New York statute requiring local school boards to lend without charge 
to all children enrolled in grades seven to twelve of a public or private 
school (complying with the compulsory education law) text books desig- 
nated for use in any public schools or approved by any boards of educa- 
tion. The Court sustained the statute on the ground that it furthered 
generally the educational interest of all children and conferred a financial 
benefit on parents and children, not on schools. The Court assumed the 
absence of religious books and of the religious use of secular books. 

You indicate that your concern about Chapter 1196 stems, at least in 
part, from the decisions of the kind in Public Funds for Public Schools 
of Neu- Jersey v. Marburger, 358 F. Supp. 29 (E.D.Pa. 1973). There a 
New Jersey statute provided that the state's Commissioner of Education 
shall reimburse the parents of non-public school children for money 



'.D. 12 155 



spent to purchase "secular, non-ideological text books, instructional 
materials and supplies." The reimbursement was limited to per pupil al- 
lowances. The cost of the text books was reimbursable only if they had 
been in use within the last five years in a public school in New Jersey or 
if they had been approved by the Commissioner of Education for com- 
pliance with the provisions and purposes of the statute. The three-judge 
district court held that this provision violated the Establishment Clause 
because it was directed exclusively to parents of non-public, predomi- 
nantly religiously affiliated, school children and therefore had the prim- 
ary effect of advancing religion. 

Most recently the Supreme Court sustained the Pennsylvania text 
book loan program in Meek v. Pitteni>ei\ 43 U.S.L.W. 4596, 4599-4600, 
4608 (May 19, 1975). The relevant legislation authorized the State Sec- 
retary of Education, either directly or through intermediate units, to lend 
text books without charge to children attending non-public elementary 
and secondary schools meeting Pennsylvania's compulsory attendance 
requirements. The books to be loaned were limited to those acceptable 
for use in any public, elementary or secondary school in the state. The 
Court found this scheme indistinguishable from the New York program 
in Allen and stressed the features of its constitutional validity: the secu- 
lar character of the text books; their presumably secular use; and their 
general, undifferentiated availability to public and private school chil- 
dren alike. 

Before judging Chapter 1196 by these decisional criteria, 1 stress cer- 
tain principles of constitutional challenge to statutes. A statute enjoys a 
presumption of constitutional validity and should be interpreted to avoid 
both unconstitutionality and substantial constitutional questions and 
doubts. See, e.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 
288, 341 (Brandeis, J. Concurring); Commonwealth v. Lamb, 1974 
Mass. Adv. Sh. 713, 717-718; Board of Appeals of Hanover v. Housing 
Appeals Committee in the Department of Community Affairs, 1973 
Mass. Adv. Sh. 491, 512; Chipman v. MBTA, 1974 Mass. Adv. Sh. 
1447, 1453. One assailing a statute on constitutional grounds has the 
burden of proving the absence of any conceivable grounds upon which 
the statute may be supported. Anton's of Reading, Inc. v. Reading, 346 
Mass. 575, 576 (1964); Merit Oil Co. v. Director of the Division on the 
Necessaries of Life, 319 Mass. 301, 305 (1946). Statutes which burden 
fundamental constitutional rights may reverse the presumption of con- 
stitutional validity and receive strict judicial review shifting to the state 
the burden of proving a compelling justification. This standard of strict 
judicial review does operate in favor of religious freedom under the Free 
Exercise Clause. Sherhert v. Verner, 374 U.S. 398, 403 (1963). How- 
ever, it has not been applied to Establishment Clause challenges to state 
programs. In light of these principles and the leading cases above, then. 
Chapter 1196 is constitutionally valid so long as its purpose and primary 
effect is the advancement of education generally and not of religion or 
religious education particularly. 

I conclude that Chapter 1196 is constitutional. Its essential features 
are far closer to the loan programs sustained in the Allen and Meek deci- 



156 P.D. 12 



sions than to the reimbursement scheme of the Marburger decision. 
Under it the text books are secular and will be put to secular use, as 
evidenced by the fact that they must be "the same as those purchased 
by the committee for use in the public schools." The feature of their 
general, equal availability by loan to public and non-public students alike 
could be more explicit. Constitutional safety weighs in favor of express 
language to this effect. However, construing the statute in its most 
favorable constitutional light, I view the fact of the purchase of these 
books in the first instance for public students as an indicium of their 
equal availability, by regular school use or loan, to public students. 

B. The Anti-Aid Amendment to the Massachusetts Constitution: 
Amendment XVIII. 

You ask also whether Chapter 1 196 complies with Amendment XVIII 
of the Commonwealth's Constitution. Its most pertinent language, cor- 
responding to the First Amendment's Establishment Clause, provides 
that "no such grant, appropriation or use of public money or property or 
loan of public credit shall be made or authorized for the purpose of 
founding, maintaining or aiding any church, religious denomination or 
society." 

More importantly, I must read the Massachusetts Anti-Aid Amend- 
ment in harmony with the Free Exercise Clause of the First Amendment 
of the United States Constitution. Federal constitutional law remains 
supreme. The leading decisions under the Free Exercise Clause em- 
phasize the requirement of neutrality by state law toward the exercise of 
religion. See, e.g., Sherbert v. Vernei\ 31 A U.S. 398. 402-403 (1963). 
Therefore, the Anti-Aid Amendment must operate neutrally, without 
hostility, toward religious interests. If the Anti-Aid Amendment were 
applied to strike down the program of Chapter 1196, a program substan- 
tially similar to those sustained under Establishment Clause attack by 
the Supreme Court in Allen and Meek, a danger could arise that the 
Anti-Aid Amendment of the State Constitution violated the Free Exer- 
cise Clause of the Federal Constitution. 

In addition, the decisional law under the Anti-Aid Amendment is far 
less developed than that under the Establishment Clause, and suggests 
no such conflict of results. In these circumstances I will read the state 
and federal constitutional law to be in harmony. 

Finally, the available case law under the Anti-Aid Amendment sug- 
gests the permissibility of Chapter 1196. In particular, a consistent line 
of opinions of this office has approved of the extension of general bene- 
fits to non-public schools. See. especially. Op. Atty Gen., March 26, 
1951, p. 38 (school lunch program); Op. Atty. Gen., January 9. 1947, p. 
66 (federal money); Op. Atty. Gen.. February 17, 1936, p. 40 (free 
transportation). 

Consequently, I conclude that the Anti-Aid Amendment does not in- 
validate Chapter 1 196. 

CONCLUSION 

For the foregoing reasons, it is my opinion that Chapter 1 196 of the 



P.D. 12 



157 



Acts of 1973 is constitutional within the meaning of both the Establish- 
ment C lause of the First Amendment of the United States Constitution 
and Amendment XVI 11 to the Massachusetts Constitution. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 66. June 16, 1975 

Mr. Elton B. Klibanoff 

Director 

Office for Children 

120 Boyiston Street 

Boston, Massachusetts 021 16 

Dear Mr. Klibanoff: 

You have requested my opinion regarding the interpretation of G. L. 
c. 119. § 51A. Specifically, you have asked for an interpretation of the 
terms "serious injury"' and "reasonable cause to believe,"" as used in G. 
L. c. 1 19, § 51 A. As you know, on May 27, 1975 1 issued an opinion to 
your office concerning this same statute, in response to concerns ex- 
pressed by officials of the Department of Health, Education and Welfare 
with respect to the Commonwealth's eligibility for federal funding under 
the Child Abuse Prevention and Treatment Act (P.L. 93-247). Your let- 
ter of June 6, 1975 informs me that these officials have raised additional 
questions which require clarification. 

The term "serious physical or emotional injury" in the context of § 
51 A includes all but the most negligible or de minimis injuries to chil- 
dren. This standard applies to those instances in which certain enumer- 
ated professionals are required to make reports to the Department of 
Public Welfare. Those cases which do not even meet this standard can, 
of course, still be reported under the permissive reporting provisions of 
§ 51A. 

The practice of the Department of Welfare in notifying reporters of 
their duties, accepting reports and delivering services is consistent with 
this interpretation. 

The phrase "reasonable cause to believe" should be construed in light 
of the clear intent and purpose of § 51 A to protect any child who may be 
the subject of abuse or neglect. It is my opinion that this phrase is the 
equivalent to "known or suspected instances of child abuse and ne- 
glect" used in the federal regulations (45 C.F.R. 1340.3-3(d) (2) (1) ). 
"Reasonable cause to believe," of course, refers to the standard to be 
applied by those persons reporting to the Department, and no opinion is 
expressed as to the proper standard to be used in any criminal or civil 
action instituted by the Department. Cf. Commonwealth v. Certain Lot- 
tery Tickets, 59 Mass. 369 (1850). 

Very truly yours, 

Francis X. Bellotti 

Attorney General 



158 P.D. 12 



Number 67. June 18, 1975 

Honorable Nicholas L. Metaxas 

Commissioner of Corporations and Taxation 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02108 

Dear Commissioner Metaxas: 

By letter dated January 31, 1975 you requested my opinion as to 
whether 

"... legal expenses incurred by the Middlesex County 
Treasurer in the amount of $8,750 for attendance by a lawyer 
at arbitration hearings, such arbitration being under the juris- 
diction of the Middlesex County Commissioners, [are] 
"reasonable expenses' which may be paid upon certification 
by the Director of Accounts as set forth in Chapter 35, Sec- 
tion 11, General Laws." 

It is my opinion that the expenses in question were incurred by the 
Treasurer as a party representing the County and that there was a 
reasonable basis for the County Treasurer to secure outside counsel, but 
that a final determination of the reasonableness of the specific expenses 
rests with the Director of Accounts. 

Your question was considered in light of the materials which accom- 
panied it, the relevant law, and additional information obtained from you 
and Edward M. Ginsburg, Esq., who represented the Treasurer at the 
hearings (and whose bill for $8,750 gave rise to your request). In addi- 
tion, I obtained various public records from state and federal courts as 
well as copies of certain relevant correspondence received by the Direc- 
tor of Accounts. 

General Laws, c. 35, § 1 1, to which you refer, provides that: 

"[n]o payments, except payment ... of reasonable ex- 
penses incurred by the treasurer as a party in representing the 
county which have been certified by the director of accounts 
. . . shall be made ..." 

This language gives rise to two questions. First, were the expenses 
incurred by the Treasurer as a party in representing the county; and 
second, were they reasonable. 

The relevant court records reveal that the arbitration proceedings in- 
volved here arise out of the consolidation of several court cases includ- 
ing Western Waterproofing Company. Inc. v. Gevyn Construction 
Corp., Suffolk Superior Court Equity No. 93412, which named as addi- 
tional defendants the County of Middlesex, the Treasurer of Middlesex 
County and the Commissioners of Middlesex County. In fact, even if he 
had not been specifically named, the Treasurer is probably a necessary 
part by virtue of G. L. c. 35, § 20, which provides that "The Treasurer 
shall be joined as a party in all legal proceedings brought against the 
county." Thus, it seems clear that the Treasurer was not only a party to 



P.D. 12 159 

this action but that by representing the interests of the Treasury, the re- 
pository of county funds, he was representing the interests of the 
County. 

The second question, whether these were "reasonable expenses." 
pursuant to G. L. c. 35, § II, involves two considerations. First, were 
the interests of the Treasurer so different from those of the County or 
the Commissioners as to require separate representation and. second, 
assuming they were sufficiently different, were the expenses incurred 
reasonable. A satisfactory answer to this first question is contained in a 
letter dated February 24. 1975. addressed to the Director of Accounts, 
Gordon A. McGill. from Mr. R. Robert Popeo. counsel for the County 
Commissioners and the County of Middlesex. In that letter, Mr. Popeo 
stated that "there have been frequent occasions where the positions or 
interpretations of the County Treasurer have been at variance with 
those of the County Commissioners." Thus, said Mr. Popeo. "if the 
separate interests of the County Treasurer are to be protected, separate 
representation by counsel is necessary." Those statements make clear 
that the Treasurer had a reasonable basis for believing that he required 
separate representation in order to zealously protect his interests. See 
Supreme Judicial Court Rule 3:22, Disciplinary Rule 5-105. 

The question of whether the amount of the expenses was reasonable is 
properly answered by the Director of Accounts rather than the Attorney 
General. However, in order to assist him in making that determination, 
I have forwarded to him (and to you) a copy of the breakdown of time 
submitted by Mr. Ginsburg. 1 would also suggest you refer to Supreme 
.ludicial Court Rule 3:22, Disciplinary Rule 2-106; also see, Johnson v. 
Geoii>ia His^hway Express, Inc., 488 F. 2d 714, (5th Cir. 1974). 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 68. June 18, 1975 

Mr. Charles V. Barry 

Secretary of Public Safety 

Executive Office of Public Safety 

18 Tremont Street 

Boston, Massachusetts 02108 

Dear Secretary Barry: 

By letter dated April II, 1975, you have directed to me a number of 
questions concerning the definitions contained in c. 528 of the Acts of 
1974 which established the Architectural Barriers Board. You indicated 
that this Board is now in the process of promulgating rules and regula- 
tions relevant to its functions. 

It is my opinion that many of the issues you raise may properly be 
resolved by the board in the course of promulgating its regulations. 



160 P.D. 12 

Chapter 22, § 13 A states that the Architectural Barriers Board ''shall 
make, and from time to time, alter, amend, and repeal, in accordance 
with the provisions of Chapter thirty A, rules and regulations designed 
to make public buildings accessible to, functional for, and safe for use 
by, physically handicapped persons ..." The authority granted by c. 
30A includes by its terms those regulations intended to '^ interpret the 
law enforced or administered ..." by the agency or board in question. 
Thus, insofar as you request detailed determinations of the legal signifi- 
cance of certain fact situations, it is my opinion that many of these in- 
terpretations should properly be made by the Board itself in the course 
of promulgating the regulations in question. Of course, the regulations 
you promulgate must not conflict with other laws of the Commonwealth. 
With these principles in mind, I am providing the following information 
for your guidance. For your convenience I have substantially restated 
each question before answering. 

In question (1) (a) you inquire as to whether "the Board's regulations 
[may] apply to that portion of a government building which contains pri- 
vate offices or power and maintenance areas that the public does not or- 
dinarily use." As you note, c. 22, § 13A provides that your regulations 
are applicable to public buildings. Section 13 A defines public buildings 
as "buildings constructed by the Commonwealth or any political sub- 
division thereof with public funds and open to public use . . . and pri- 
vately financed buildings that are open to and used by the public." 
Given this definition, it is clear that the dispositive factor in determining 
whether a building is public is whether it is "open to public use." 

If the building you refer to as a "government" building is, in the opin- 
ion of the Board, open to public use, (i.e., open to all who choose to 
enter), Peachey v. Boswell, 240 Ind. 604, 167 N.E.2d 48 (1960), Austin 
V. Soule, 36 Vt. 645 (1864) Cf. Opinion of the Justices, 313 Mass. 779, 
47 N.E.2d 260 (1943), it is a pubHc building to which the Board's regu- 
lations apply. Whether certain portions of such a building may be ex- 
cluded from the operation of those regulations because they are private 
offices or power and maintenance areas depends initially on whether or 
not those areas are, in the opinion of the Board, normally open to public 
use. If the Board decides that such areas are normally not open to public 
use, the question then becomes whether there is any basis for excluding 
such areas from coverage despite their being within a public building. 
An examination of c. 22, § 13A reveals no such basis. Nonetheless, it is 
significant that the regulations issued pursuant to the Federal Architec- 
tural Barriers Act, (P.L. 90-480) have resolved the problem of private 
areas in an otherwise public building by excluding from the requirement 
of that Act "the design, construction, or alteration of any portion of a 
building which need not, because of its intended use, be made accessible 
to or usable by, the public or by physically handicapped persons." 41 
C.F.R. § 101-19. 604(a). This language seems consistent with the intent 
of c. 22, § 13A, which is to provide handicapped persons, as far as pos- 
sible, with the same freedom of movement in public places as non- 
handicapped persons. 



P.D. 12 161 

For this reason, while the act provides no express authority for ex- 
cluding certain areas, it is my opinion that the Board's regulations need 
not encompass those portions of otherwise public buildings not open to 
public use and which because of their intended use need not be made 
usable by or accessible to physically handicapped persons. Thus, if in 
the Board's opinion the private offices in question are not open to the 
public generally, and would not on occasion be used by a physically 
handicapped individual (either employed in such office or seeking to 
conduct private business therein) the Board's regulations should encom- 
pass those offices. Similarly, the Board's regulations should encompass 
power and maintenance areas unless in the Board's opinion the work to 
be performed therein would not normally be performed by or require the 
occasional presence of physically handicapped persons. 

In question (1) (b) you inquire as to whether "'the Board's regulations 
may apply to a government building that the public does not ordinarily 
use. such as a fire station, power plant, public works garage or garage 
for government vehicles." As noted above, the question of whether a 
building is a "public building" and hence subject to the Board's regula- 
tions depends on whether the building is "open to public use," or "open 
to and used by the public." Given the fact that you expressly state that 
the buildings about which you inquire in question (I) (b) are not gener- 
ally open to the public, it seems clear that such facilities are outside the 
Board's power to regulate. 

In question (2) you inquire as to the legality of the Board's regulating 
various commercial buildings or areas within commercial buildings. As 
you note. Chapter 578 makes clear that the term "public building" in- 
cludes commercial buildings exceeding two stories in height in which 
more than forty persons are employed. You then inquire in question (2) 
(a) "Does such a commercial building include a building which contains 
business offices that are open to the business invitees of that office?" 

The law defines a business invitee as a person who enters onto the 
premises of another for the mutual benefit of himself and the other. The 
benefit need not be of a pecuniary nature, and it need not arise out of a 
contractual relationship. Taylor v. Goldstein, 329 Mass. 161, 165, 107 
N.E.2d 14 (1952). It must, however, be more than the intangible advan- 
tages arising from mere social intercourse. Id. Any member of the public 
entering upon business premises for such a reason is a business invitee 
and a place of business open to such person has been held to be a public 
place. Brooks v. State, 198 Ga. App. 3, 90 S.E. 989. Thus, it is my opin- 
ion that the answer to your question (2) (a) is in the affirmative. 

In question (2) (b) you inquire: 

b. "If the answer to the preceding is in the affirmative, do 
the regulations extend to the interior of such offices?" 

As I stated in response to question (I) (a). Section 13A provides no 
express authority for excluding non-public areas, of an otherwise public 
building. Nonetheless, it is my opinion, again as stated in question (I) 
(a), that such areas may be excluded if in the Board's opinion the work 
to be performed therein would not normally be performed by physically 



162 P.D. 12 

handicapped persons and the occasional presence of such persons could 
not normally be expected. 

In question (2) (c) you inquire "Does such a commercial building in- 
clude a factory that is open to factory employees only?" Since the effect 
of admitting only employees of the factory is to exclude the general pub- 
lic, such a building is clearly not open to and used by the public. Thus, 
the Board's regulations should not extend to such a factory building. 

In question (2) (d) you inquire "Does such a commercial building in- 
clude a retail establishment where merchandise is sold commercially?" 
The United States Supreme Court has defined "commerce" as the sale 
or exchange of commodities. Breniuin v. City of Titusville, 153 U.S. 289 
(1894). Thus, a commercial building is a building where commodities are 
sold or exchanged. A retail establishment has been defined as one sell- 
ing, in individual quantities for personal or household consumption, 
items that are usually and regularly regarded as consumer's goods. 
Armstrong Co. v. Walling, 161 F. 2d 515, 516 (1st Cir. 1947). It is my 
opinion that the definition of a commercial building is sufficiently broad 
to encompass the narrower definition of retail establishments. Thus, the 
answer to your question (2) (d) is that a commercial building does in- 
clude a retail establishment where merchandise is sold commercially. 

In question (3) you note that c. 528 provides that five per cent of the 
units in lodging or residential facilities for hire, rent or lease, containing 
twenty or more units, shall be accessible, functional and safe units for 
physically handicapped persons. 

You then inquire as to whether "an apartment building arranged in 
several suites of connecting rooms, each site designed for independent 
housekeeping fall(s) within the definition of lodging or residential 
facilities." It is my opinion that there is no basis for considering such a 
building to be something other than a lodging or residential facility. 
Thus, if the building contains twenty or more such suites, five per cent 
of the units therein should be made accessible, functional and safe for 
physically handicapped persons. 

In question (4) (a) you inquire as to whether the public area of apart- 
ments and condominiums includes: 

"(1) The walk, stairs and entrances into said buildings? 

(2) The general public function areas? 

(3) The stairs and corridors leading to the individual apart- 
ments." 

As to subdivisions ( 1 ) and (2), of this question, I believe it is clear that 
the walk, stairs and entrances as well as any general public function 
areas are parts of the public area of apartments and condominiums, un- 
less in the opinion of the Board, such areas would not normally be open 
to and used by the public. As to the public function areas, it is my opin- 
ion that such areas are by definition open to and used by the public and 
are thus public areas. As to subdivision (3) of question (4) (a), whether 
the stairs and corridors leading to individual apartments are public areas 
would depend on whether, in the opinion of the Board, such areas are 



P.D. 12 163 

normally open to and used by the public (as they might be if there are no 
doors separating them from public areas or if they lead directly to other 
public areas or if a hallway leads to more than one apartment.) Cf. State 
V. Nash, 74 N.J. Super. 510, 181 A. 2d 555 (1962). 

In question (4) (b) you inquire as to whether the public area of a shop- 
ping center or restaurant includes: 

(1) The walks, stairs and entrance into said buildings, or 

(2) the area where the service or product of the establishment 
is offered to the public. 

As to (1). it seems clear that the walks, stairs and entrance into shop- 
ping centers and restaurants are normally open to and used by the public 
and thus are properly considered to be public areas. As to the area 
where the service or product of the establishment is offered to the public 
it would appear that to define that area as other than public would be 
inconsistent with the definition of the area as that where the service or 
product of the establishment is offered to the public. 

In question (4) (c) you inquire as to the definition of a shopping 
center. Specifically you ask if any of the following constitute a shopping 
center. 

"(1) A single store standing alone from other stores on a 
street. 

(2) A row of stores, side by side on a public street. 

(3) A group of stores using a common parking area. 

(4) A group of stores in a shopping mall." 

While no Massachusetts case defines "shopping center" a number of 
cases in other jurisdictions have dealt with the question. For example, 
the Supreme Court of Florida has defined a shopping center as a group 
of commercial establishments planned, developed, owned and managed 
as a unit with off-street parking provided on the property. Homer v. 
Dac/eland Shopping Center, Inc., 229 So. 2d 834, 836 (Fla. 1970). See 
also Duponi v. Planning & Zoning Commission. 156 Conn. 213, 240 
A. 2d 899 (1968). Based on this definition, it is my opinion that a single 
store standing alone from other stores is not a shopping center. As to the 
other three situations it is my opinion that whether each is or is not a 
shopping center is contingent on whether in the opinion of the Board the 
groups of stores in question are owned and managed as a unit and pro- 
vides off-street parking on the property. 

In question (5) you inquire as to whether certain buildings are institu- 
tional buildings. You then indicate that institutional buildings are, by 
that fact alone, public buildings within the meaning of the act. Specifi- 
cally the act provides that "(b) buildings that are open to and used by 
the public shall include but not be limited to institutional buildings ..." 
In Gangi v. Board of Appeals of Salem, 334 Mass. 183, 134 N.E. 2d 451 
(1956) the Supreme Judicial Court defined an institution as "an estab- 
lished corporation especially one of a public character. The term may be 
applied both to the organization itself and to the place where its opera- 
tions are conducted." Id. at 185, 134 N.E. 2d at 453. Other definitions 
of institutions are contained throughout the general laws. Thus, c. 1 18E, 



164 P.D. 12 

§ 2 relating to medical care and assistance defines an institution as "any 
licensed hospital, any licensed nursing home, or any public medical in- 
stitution which meets the requirements of the Secretary [of the United 
States Department of Health, Education and Welfare]." A broader de- 
finition is found in c. 117, § 2 which in the context of public welfare de- 
fines an institution as 

"any hospital, sanatorium, boarding or rest home or conva- 
lescent or nursing home, for the operation of which a license 
is required by law, any facility conducted by an agency in- 
corporated under chapter one hundred and eighty or any spe- 
cial act as a charitable corporation and any facility operated 
by municipal, county, state and federal government." 

Chapter 180, referred to in c. 1 17, § 2, provides for the incorporation 
of charitable corporations which includes those corporations "formed 
for any civic, educational, charitable, benevolent or religious purpose 
..." Thus, the definition in c. 1 17, § 2 encompasses all licensed health 
facilities, all charitable corporations and all government buildings. This 
definition seems broad enough to effectuate the purposes of the act 
while excluding traditional private corporations and, by implication also 
excluding, for the reasons stated in my response to question (1) (a), 
those buildings or areas within a building wherein the work to be per- 
formed would not normally be performed by physically handicapped 
persons and the occasional presence of such persons would not normally 
be expected. 

Applying those standards to the various fact situations you raise in 
question (5) it is my opinion that (a) a school or college constructed with 
private funds and open only to its tuition paying students, (b) a hospital 
open to the public, (c) a private hospital or clinic open only to its private 
patients, and (d) a nursing home open only to board paying patients are 
all public buildings. However, a medical building containing doctors' of- 
fices would not be a public building unless the building itself were owned 
by a charitable corporation or governmental entity. 

In question (6) you inquire as to whether certain structures are public 
sidewalks or ways and thus public buildings by virtue of the definitions 
in Chapter 13A. Specifically, in question (6) (a) you inquire as to 
whether included within this definition are private tennis courts that are 
not in a building and charge admission. You do not indicate whether you 
are referring to courts open only to members of a certain club or organi- 
zation who must pay admission or whether the courts are open to any 
member of the public who is willing to pay the fee. It is my opinion, 
however, that this fact, as well as the fact that a fee is charged, becomes 
irrelevant since a tennis court cannot, in any way, be considered a pub- 
lic sidewalk or way and thus cannot possibly be considered a public 
building. As numerous courts have made clear, a "way," including a 
sidewalk, public or otherwise, is a means of passage from one place to 
another. See e.g., Dennis v. Wilson, 107 Mass. 581, 593 (1871). Since a 
tennis court is a place of recreation and cannot in any way be deemed a 
means of passage from one place to another, it is my opinion that it can- 



F^D. 12 165 

not be considered a public building by virtue of its being a public 
sidewalk or way. 

The principles outlined above are equally applicable to question (6) (b) 
wherein you inquire as to whether the terms public sidewalks and ways 
encompass "private parks or campsites areas that charge admission." 

Parks and campsites, while they might occasionally be used as a 
means of passage from one place to another, are primarily recreational 
areas. Thus, it is my opinion that the Board's regulations may not apply 
to such areas whether or not they charge admission unless, in the 
Board's opinion, the primary purpose of a given area is passage and not 
recreation. 

Finally, in (6) (c) you inquire as to whether the terms public sidewalk 
or way would encompass a '"roadside park constructed with public 
funds." This question is somewhat more complex than those presented 
in (6) (a) and (6) (b). In the first place, the wording of your question im- 
plies that such a park would be open to all members of the public and 
not only those who possess the requisite admission fee. Thus, there 
cannot be any question about the public nature of such a park. Sec- 
ondly, a roadside park is by definition adjacent to. although not itself, a 
way. Nonetheless, such a park cannot be considered a public building to 
v\hich your regulations would extend unless, in the Board's opinion, the 
primary purpose of the park in question is to provide a means of passage 
from one place to another. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 69. June 23. 1975 

The Honorable W. Norman Gleason 
Director. Office of C(ii)ip(n\un 

and Political Finance 
Eight Beacon Street 
Boston. Massachusetts 02108 

Dear Mr. Gleason: 

You have asked my opinion on tv^o questions dealing with the rela- 
tionship between federal and state campaign laws: 

(1) Whether candidates for federal office and committees or- 
ganized in their behalf are exclusively regulated by the Federal 
Election Commission in reporting requirements, committee 
organizational requirements, contribution and expenditure 
limitations, and media expenditure, rather than under the pro- 
visions of G. L. c. '^51 

(2) Whether the federal requirement that a duplicate of the federal 
reports be filed with the Secretary of the Commonwealth, fully 
discharges the reporting requirements for such federal office 
candidates and their committees? 



166 P.D. 12 



I answer both of your questions in the affirmative, for the following 
reasons: 

General Laws. c. 55, the Federal Election Campaign Act of 1971. 2 
U.S.C. § 431. et seq. and 18 U.S.C. § 591. et seq. purport to regulate 
the conduct of candidates for federal office. Where those statutes con- 
flict, the Supremacy Clause of the United States Constitution requires 
that the state enactment must give way to the federal. Even where the 
state and federal laws are parallel and reinforcing rather than contradic- 
tory, the United States Supreme Court has precluded application of 
state law when it finds a Congressional intention to preempt the field. 
Pennsylvania v. Nelson, 350 U.S. 497 (1956). The Court will not ex- 
amine the intention or purpose of the state statute, but rather the intent 
of the federal lawmakers. Perez v. Campbell, 402 U.S. 637 (1971). The 
intent of Congress to preempt the law relating to federal elections is 
clear and unambiguous. 

Two sections of the Federal Elections Campaign Act Amendments of 
1974, P.L. 93-443, make the Congressional intent to preempt clear. Sec- 
tion 104(a), amending 18 U.S.C. § 591 et seq. (criminal regulation of 
federal elections) and section 301, amending 2 U.S.C. § 403 (civil regula- 
tion of federal elections) both state that the federal statutes "supersede 
and preempt any provision of State law with respect to election to Fed- 
eral office." 

Senate Conference Report No. 93-1438 (October 7, 1974) further ar- 
ticulates the Congressional intent concerning section 104 (a): 

". . . The Federal law occupies the field with respect to 
criminal sanctions relating to limitations on campaign expen- 
ditures, the sources of campaign funds used in Federal races, 
the conduct of Federal campaigns, and similar offenses, but 
does not affect the States' rights to prohibit false registration, 
voting fraud, theft of ballots, and similar offenses under State 
law." 

Equally clear is the conference statement dealing with sec- 
tion 301: 

". . . It is clear that the Federal law occupies the field with 
respect to reporting and disclosure of political contributions 
to and expenditures by Federal candidates and political 
committees, but does not affect State laws as to the manner 
of disqualifying as a candidate, or the dates and places of 
elections." 

I conclude, therefore, that except for those matters referred to in the 
Conference Report, e.g. voting fraud, the state has no authority to regu- 
late the conduct of federal campaigns and elections. 

With respect to your second question, I conclude that federal candi- 
dates satisfy the provision of the Federal Election Campaign Act if they 
file duplicate forms with the Secretary of State, as required by 2 U.S.C. 
§ 439. The Director of Campaign and Political Finance is not an "equiv- 
alent state officer" within the meaning of that section since the Com- 



P.D. 12 167 



monwealth does have a Secretary of State. Since 2 U.S.C. § 439(b) (3) 
provides for public inspection and copying of such reports, there is ob- 
viously no prohibition against your office maintaining a duplicate set of 
reports. 

Very truly yours. 
FRANCIS X. BELLOTTI 

Attornex General 



Number 70. June 23. 1975 

Honorable Edward W. Powers 

Director of Civil Service 

John W. McCormack Building 

I .Ashburton Place 

Boston. Massachusetts 02108 

Dear Sir: 

You have requested my opinion with respect to the following ques- 
tion: 

■"Which state agency, the Bureau of Personnel or the Divi- 
sion of Civil Service, has jurisdiction to determine the duties 
of Mr. James Dallas, whose present title is 'Supervising 
Sanitary Engineer, Department of Public Health?' 

General Laws, c. 30, § 45(1) provides that the Director of Personnel 
and Standardization shall have the initial responsibility for ascertaining 
the duties of each office or position of the Commonwealth and develop- 
ing specifications therefor. After said specifications and duties have 
been drafted, in the case of a civil service position, they are sent to the 
Director of Civil Service for his approval and comments. G. L. c. 30, § 
45(2). If the Directors of Personnel and Civil Service are not able to 
agree on such specifications, the matter is determined by the Commis- 
sioner of Administration. 

On the facts that have been presented to me, it would appear that the 
Division of Personnel has promulgated specifications and duties for the 
civil service position of "Supervising Sanitary Engineer" and that the 
Division of Civil Service has approved such specifications and duties. 
Thus, the process provided by G. L. c. 30, § 45 has been completed. 

That being the case, any further changes in said specifications, if ap- 
propriate, would again be initiated by the Bureau of Personnel and then 
submitted to the Division of Civil Service pursuant to G. L. c. 30. §§ 
45(1) and (2). 

Very truly yours. 
FRANCIS X. BELLOTTI 

Attorney General 



168 P.D. 12 



Number 71 June 23, 1975 

The Commonwealth of Massachusetts 

Executive Office of Environmental Affairs 

Department of Natural Resources 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Attn: Arthur W. Brownell 
Commissioner 

Re: Administration of General Laws 
c. 40, § 8C and c. 131, § 40 

Dear Mr. Brownell: 

You have requested my opinion on the authority of the various Con- 
servation Commissions to "adopt rules and regulations in order to dis- 
charge their duties under G.L. c. 131, § 40/' In the alternative, you 
have asked whether the Commissioner of Natural Resources "may 
grant to Conservation Commissions throughout the Commonwealth au- 
thority to promulgate regulations for the city or town where the said 
Commissions are located." I answer that the Conservation Commis- 
sions have no such authority and the Commissioner of Natural Re- 
sources may not grant such authority. 

The city or town Conservation Commissions were established pur- 
suant to G.L. C.40, § 8C, which contains their statutory authority to per- 
form certain limited functions. One of their primary functions is to ac- 
quire land by purchase, gift, lease or eminent domain for conservation or 
recreation purposes. With respect to these acquisitions, the Conserva- 
tion Commissions: 

"... may adopt rules and regulations governing the use of 
land and waters under its control, and prescribe penalties, not 
exceeding a fine of one hundred dollars, for any violation 
thereof." G.L. c.40, § 8C. 
The power to adopt rules and regulations is limited to the use of the land 
and waters which have been acquired under the provisions of G.L. c.40, 
§ 8C. 

In addition to the acquisition of land for conservation purposes, the 
Conservation Commissions are authorized to enforce the provisions of 
G.L. C.131, §40, with respect to the alteration of natural structures on 
coastal wetlands and tidal areas. Although the responsibility for adminis- 
tering the statute is placed upon the Conservation Commissions with a 
detailed procedure to be followed, including hearings and appeals to the 
Department of Natural Resources, the authority to promulgate rules and 
regulations is limited to the Commission of Natural Resources. 

"Rules and regulations shall be promulgated by the com- 
missioner to effectuate the purposes of this section." G.L. 
C.13I, § 40 



P.D. 12 169 

Since there is no express delegation of authority for the Conservation 
Commissions to enact regulations and in light of the Commissioner of 
Natural Resources' affirmative duty to issue regulations, the Conserva- 
tion Commissions may not promulgate their own regulations. 

The power to promulgate regulations, as well as the purpose of those 
regulations, must be within the ambit of the enabling statute. 
Commonwealth v. Diaz, 326 Mass 525 (1950): Bureau of Old Age Assis- 
tance of Natick v. Commissioner of Public Welfare, 326 Mass 121 
(1950). In addition, one agency may not delegate its duties to another 
agency without express authority to do so. 5 Op. Attv. Gen.. 1920 p. 
628. 

Therefore, the only individual or agency authorized to promulgate 
regulations to effectuate the provisions of G.L. c.l31, § 40, is the Com- 
missioner of Natural Resources and this authority may not be delegated 
to the Conservation Commissions. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 72. June 23, 1975 

James C. Murphy 

Treasurer 

Southeastern Massachusetts University 

North Dartmouth. Massachusetts 02747 

Dear Mr. Murphy: 

You have requested my opinion as to whether Southeastern Massa- 
chusetts University may expend funds from its legislative appropriation 
for employee liability insurance. 1 understand that the insurance policy 
in question was entered into by the University to insure employees 
against personal liability for their negligence in the performance of their 
duties. The need for insurance arises from the fact that any liability in- 
curred by the employees of the University is not reimbursed by the 
University or the Commonwealth. The insurance policy protects em- 
ployees from financial loss by providing protection at no cost to them 
personally. 

The letter attached to your request, from Walter R. Smith, Special 
Assistant Attorney General, to President Walker, indicates that the 
State Comptroller's Office has refused to approve payment for the in- 
surance policy on the basis of G.L. c.29, § 30, which reads as follows: 
"No officer or board shall insure any property of the 
Commonwealth without special authority of law." 
It is my opinion that insuring employees against personal liability is 
clearly not equivalent to "insuring any property of the Common- 
wealth." Therefore, the above-quoted statute does not preclude the type 
of insurance policy you have executed. 



170 P.D. 12 

The only other objections to the payment of the policy would arise 
from the absence of a specific appropriation in the budget or the failure 
of the University to treat the expenditure as compensation or an incre- 
ment in the salaries of the employees. For the reasons detailed below. I 
find these objections inapposite. Accordingly, it is my opinion that the 
decision of the University to insure its employees was within its statu- 
tory authority. 

The enabling statute for Southeastern Massachusetts University. 
G.L. C.75B, § \, et seq. grants broad fiscal authority to the Board of 
Trustees. Section six provides: 

Notwithstanding any other provision of law to the con- 
trary, the general court shall annually appropriate such sums 
as it deems necessary for the maintenance, operation and 
support of the university; and such appropriation shall be 
made available by the appropriate state officials for expendi- 
ture through allotment, transfer within and among subsidiary 
accounts, advances from the state treasury in accordance 
with the provisions of sections twenty-four, twenty-five and 
twenty-six of chapter twenty-nine, or for the disbursement on 
certification to the state comptroller in accordance with the 
provisions of section eighteen of said chapter twenty-nine as 
may from time to time be directed by the trustees or an of- 
ficer of the University designated by the trustees. 
Since you have stated in your request that the expenditure in question is 
within the appropriation of the General Court, the appropriate state offi- 
cial, the Comptroller, is obligated to disburse the requested funds "as 
may from time to time be directed by the trustees." In a prior opinion of 
the Attorney General, this office reviewed the extent of the University's 
broad authority in relation to the salary of the president. 1967 Op. Atty. 
Gen. 87. The same analysis of the enabling statutes applies in this case. 
"It is clear from the sweeping language of the statute that 
the powers of the trustees in this matter are very broad . . . 
This section (G.L. C.75B, § 6). together with § 10. was appar- 
ently intended to free SMTl [SMU] from certain budgetary 
restrictions imposed on most departments and agencies." 
The "department and agencies" referred to in the above quote are gov- 
erned by G.L. C.29, §§ 27 and 29. which requires a specific appropria- 
tion in the subsidiary accounts as set forth in schedules established by 
the Joint Committee on Ways and Means. However, in 1967 Op. Atty. 
Gen. 87. it was determined that the specific language of G.L. C.75B. § 6 
and § 10. made G.L. c.29, §§ 27 and 29 inapplicable to the University. 
This opinion was subsequently upheld in Opinion of the Justices. 1975 
Mass. Adv. Sh. 535. There the issue was whether the University of 
Massachusetts had authority to execute a lease without the approval of 
state agencies as required by G.L. c.8. § lOA. In construing statutory 
language in G.L. c.75, §§ 1 and 8, identical to C.75B, §§ 6, 10, and rely- 
ing on the 1962 Report of the Special Commission on Budgetary Powers 
of the University of Massachusetts and Related Matters, the Court held 



P.D. 12 171 

that a determination of whether the lease was proper was within the dis- 
cretion of the Board of Trustees. 

I realize that although the expenditure of appropriated funds is within 
the control of the Board of Trustees, they must nonetheless be used for 
the ''maintenance, operation and support of the university." G.L. c. 
75B. § 6. The Opinion of the Justices stated, supra at 537-538. in quoting 
the legislative report, that the "administrative control and responsibility 
be placed in the Board of Trustees which is best informed and equipped 
to make management decisions" and that no "discretionary decisions on 
the part of state fiscal officers regarding need or desirability of an ex- 
penditure would be allowed to interfere with University management." 
The determination of whether the insurance policies in question fall 
within the ambit of maintenance, operation and support of the university 
is for the Board of Trustees to decide in the exercise of their discretion. 
1 do not consider the payment of this premium to be so unrelated to the 
above criteria as to be an abuse of the Board's discretion. Therefore, in 
my opinion the refusal of the Comptroller to withhold funds for the 
payment of employee liability insurance premiums is unwarranted. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 

Number 73. June 24, 1975 

Mr. Edward B. O'Neill 
Clerk of the Senate 
Room 334. State House 
Boston. Massachusetts 02133 

Dear Mr. O'Neill: 

I am responding herein to your letter of June 10. 1975 transmitting a 
Senate order dated June 3, 1975. which asks the following question: 
■'Does the governor of the commonwealth or any official 
within the executive branch have the authority to refuse to 
expend funds duly appropriated for any budget account for 
any reason except that the statutory purpose for which such 
budget account was enacted would be fully achieved without 
expenditure of all funds so appropriated?" 
Official Opinion No. 58 (May 8. 1975). responded to a question from 
the House of Representatives, as to the constitutionality of a particular 
refusal by a member of the executive branch to expend specified ap- 
propriated funds. Unfortunately, I must respectfully defer responding to 
the instant question of the Senate until the request has been clarified, for 
reasons which follow. 

Mass. G.L. C.12, §9, states that the Attorney General "shall give his 
opinion upon questions of law submitted to him ... by either branch of 
the general court." (emphasis supplied). A similar phrase in the Mas- 
sachusetts Constitution. Pt. 2, c.3. Art. U. has been applied repeatedly 



172 P.D. 12 

by the Supreme Judicial Court in declining to respond to abstract ques- 
tions of law or questions of law which were not stated with sufficient 
particularity to permit a precise and limited response. Answer of Justices 
to the Governor, 1973 Mass. Adv. Sh. 1253, 302 N.E. 2d 565 (1973); 
Opinion of the Justices, 349 Mass. 802, 212 N.E. 2d 217 (1965); Opinion 
of the Justices to the Senate, 333 Mass. 783, 128 N.E. 2d 563 (1955); 
Opinion of the Justices, 330 Mass. 713, 113 N.E. 2d 452 (1953). 

This principle, of responding only to questions based upon specific 
and actual facts, has also been applied when preparing opinions of the 
Attorney General. 

"It is traditional that opinions of the Attorney General are 
rendered solely upon factual situations which actually con- 
front a given State department or agency, and not upon 
hypothetical questions or general requests for information." 
Opinion of the Attorney General 112, 114 (December 23, 
1966). 

An underlying purpose of this principle is that opinions are most use- 
ful if they relate to a particularized factual situation. For example, either 
a "yes" or a "no" response to the Senate's question as presently 
framed would fail to offer the clear guidance which this difficult area 
deserves. 

In order for my response to serve the constructive purpose of Mass. 
G.L. C.12, §9, and to be of the greatest possible assistance to the Sen- 
ate, it is essential that the question asked relate to the particular set of 
facts which gave rise to the question. A response then can discuss all 
relevant factors, including the particular statute under which the execu- 
tive branch has acted, the extent of refusal to expend a particular ap- 
propriation, the reasons for such refusal to expend appropriated funds, 
and the impact of such action on the legislative purposes in passing the 
appropriation and in passing the underlying legislation. 

An official opinion of the Attorney General should be as useful as 
possible. To assist me in reaching that goal, I respectfully request that 
the Senate clarify its question to specify, if possible: (1) the member of 
the executive branch whose action is questioned; (2) the appropriated 
funds which have not been expended; (3) the statutory purpose which 
the appropriation was intended to fund; and (4) the reasons, if any, 
which have been given for such refusal to fully expend the appropria- 
tion. 

Although the question, as propounded, cannot be answered ade- 
quately, 1 will be pleased to give my most careful consideration to a 
more specific request for my opinion. In that way. this Department can 
issue a meaningful opinion which will best serve the Senate. Such a re- 
quest will receive my earliest possible response. 

Very truly yours, 
FRANCIS X. BEI LOTTI 

Attorney General 



P.D. 12 173 

Number 74. June 24. 1975 

Mr. Wallace C. Mills 
Clerk of the House 
Room 251, State House 
Boston, Massachusetts 02133 

Dear Mr. Mills: 

1 am responding herein to your letter of June 11, 1975. transmitting 

House Order No. 6296, dated June 10. 1975, which asks the following 

question: 

"Does any official in the Executive Branch of the Gov- 
ernment of the Commonwealth, including the Governor 
thereof, have the legal authority to refuse to spend funds duly 
appropriated for any budget account for any reason other 
than that the statutory purposes for which the budget account 
was enacted will be fully achieved without expenditures of all 
funds so appropriated." 

Official Opinion No. 58 (May 8, 1975), responded to a question from 
the House of Representatives, as to the constitutionality of a particular 
refusal by a member of the executive branch to expend specified appro- 
priated funds. Unfortunately, 1 must respectfully defer responding to the 
instant question of the House until the request has been clarified, for 
reasons which follow. 

Mass. G.L. C.12, §9, states what the Attorney General ''shall give his 
opinion upon questions of law submitted to him ... by either branch of 
the general court." (emphasis supplied). A similar phrase in the Massa- 
chusetts Constitution, Pt. 2, c.3. Art. II, has been applied repeatedly by 
the Supreme Judicial Court in declining to respond to abstract questions 
of law or questions of law which were not stated with sufficient particu- 
larity to permit a precise and limited response. Answer of Justices to the 
Governor, 1973 Mass. Adv. Sh. 1253, 302 N.E. 2d 565 (1973); Opinion 
of the Justices, 349 Mass. 802, 212 N.E. 2d 217 (1965); Opinion of the 
Justices to the Senate, 333 Mass. 783, 128 N.E. 2d 563 (1955); Opinion 
of the Justices, 330 Mass. 71, 113 N.E. 2d 452 (1953). 

This principle, of responding only to questions based upon specific 
and actual facts, has also been applied when preparing opinions of the 
Attorney General. 

"It is traditional that opinions of the Attorney General are 
rendered solely upon factual situations which actually con- 
front a given State department or agency, and not upon 
hypothetical questions or general requests for information." 
Opinion of the Attorney General 112, 114 (December 23, 
1966). 

An underlying purpose of this principle is that opinions are most use- 
ful if they relate to a particularized factual situation. For example, either 
a "yes" or a "no" response to the question of the House as presently 
framed would fail to offer the clear guidance which this difficult area 
deserves. 



174 P.D. 12 



In order for my response to serve the constructive purpose of Mass. 
G.L. C.12, §9, and to be of the greatest possible assistance to the House, 
it is essential that the question asked relate to the particular set of facts 
which gave rise to the question. A response then can discuss all relevant 
factors, including the particular statute under which the executive 
branch has acted, the extent of refusal to expend a particular appropri- 
ation, the reasons for such refusal to expend appropriated funds, and the 
impact of such actions on the legislative purposes in passing the appro- 
priation and in passing the underlying legislation. 

An official opinion of the Attorney General should be as useful as 
possible. To assist me in reaching that goal. 1 respectfully request that 
the House of Representatives clarify its question to specify, if possible: 
(1) the member of the executive branch whose action is questioned; (2) 
the appropriated funds which have not been expended; (3) the statutory 
purpose which the appropriation was intended to fund; and (4) the 
reasons, if any, which have been given for such refusal to fully expend 
the appropriation. 

Although the question, as propounded, cannot be answered ade- 
quately, I will be pleased to give my most careful consideration to a 
more specific request for my opinion. In that way, this Department can 
issue a meaningful opinion which will best serve the House of Represen- 
tatives. Such a request will receive my earliest possible response. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



Number 75. June 27, 1975. 

Mr. Edward W. Powers 
Director of Civil Service 
294 Washington Street 
Boston, Massachusetts 02108 

Dear Mr. Powers: 

You have requested an opinion as to the constitutionality of Chapter 
408 of the Acts of 1974 which permits Carmen Simonelli to be appointed 
a permanent police officer in the Town of Adams. My opinion is that if 
you make a factual determination that specific persons will be injured or 
prejudiced as a result of the special legislation, the statute would be un- 
constitutional. 

Chapter 408 provides as follows: 

■"Notwithstanding any general or special law or any rule to 
the contrary. Carmen Simonelli may be appointed a perma- 
nent police officer in the Town of Adams under the provi- 
sions of Chapter Thirty-One of the General Laws."' 

Although you have not articulated the precise constitutional issue 
which concerns you, I presume that your question is concerned with 



P.D. 12 175 



whether this special act, which singles out a particular applicant and ex- 
empts him from the statutory prerequisites for appointment which apply 
to all other applicants for the same position, encounters any constitu- 
tional obstacle. 

Chapter 408 can be implemented only if it meets the standards of con- 
stitutionality as recently articulated by the Supreme Judicial Court in 
Commissioner of Piilylic Health v. Bessie M. Burke Memorial Hospital. 
1975 Mass. Adv. Sh. 253. In Bessie Burke, the Court was presented 
with the issue of whether the legislature could, consistent with Article 10 
of the Declaration of Rights of the Constitution of Massachusetts, enact 
special legislation to exempt a hospital from statutory requirements (for 
building improvements) which were applicable to all other hospitals in 
the Commonwealth. 

Article 10 provides, inter alia, as follows: 

"Each individual of the society has a right to be protected 
by it in the enjoyment of his life, liberty and property, accord- 
ing to standing laws." 

The Court noted that the Legislature has the power in certain circum- 
stances to enact special (or "private"') legislation, which is addressed to 
a particular situation that does not establish a rule of future conduct with 
any substantial degree of generality, and may provide ad hoc benefits of 
some kind for an individual. Id. at 261. Such legislation is consistent 
with Article 10, if the benefit is not accompanied by corresponding in- 
jury to another person who can be definitely pointed to. Id. at 265. The 
Court upheld the specific special act challenged in Bessie Burke, since it 
did not "by its operation diminish or defeat an existing property interest 
of any other individual or do injury to him." Id. at 265. 

The Bessie Burke Court indicated that the constitutionality of a spe- 
cial statute is not affected by a hypothetical injury to a hypothetical 
party. Id. at 267-68; there must be an identifiable individual or entity. Id. 
at 267. That entity can be a class of "competitors" who "might claim 
specific injury because an otherwise justified determination ... in its 
favor was being prevented or excluded by the legislatively imposed de- 
termination in favor ..." of the benefited party. Id. at 268. 

Whether there is a class of competitors who would be injured by this 
statute is a factual determination for you to make. For example, if you 
determine that any person or persons whose names appear on the eligi- 
ble list for appointment to the Police Department pursuant to the con- 
sent decree in Castro v. Beeclier. 365 F. Supp. 655. 660-662 (D. Mass. 
1973). would be prejudiced or injured by Chapter 408 of the Acts of 
1974. the statute would be unconstitutional. If you determine that there 
are no such persons on the eligible list or that there would be no injury, 
then Chapter 408 would be constitutional. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



176 P.D. 12 

Number 76. June 30, 1975 

Mr. Wallace C. Mills 

Clerk of the House 

State House 

Boston. Massachusetts 02133 

Dear Mr. Mills: 

In your letter of June 12, 1975 you have transmitted an order, adopted 
by the House of Representatives on June 11, 1975, which presents the 
following question: 

Does the Commissioner of Insurance have the constitu- 
tional authority to lay off, suspend, discharge or otherwise 
terminate the employment of permanent employees of the 
fraudulent claims board when the General Court has appro- 
priated the necessary funds for said board, when General 
Laws Ch. 26, Section 8B, Chapter 175, Section 113M man- 
dates that said board carry out specific duties and when the 
termination of said employees would make it impossible to 
perform said duties? 

INTRODUCTION 

At the outset I must explain an important principle governing the is- 
suance of an Attorney General's Opinion. 

G.L. c. 12, § 9, states that the Attorney General "shall give his opin- 
ion upon questions of law submitted to him ... by either branch of the 
general court." 

Under a similar phrase in the Massachusetts Constitution, Pt. 2. c. 3, 
Art II, the Supreme Judicial Court has repeatedly declined to respond to 
questions of law which were abstract or not stated with sufficient par- 
ticularity to permit a precise and limited answer. Answer of Justices to 
the Governor, 1973 Mass. Adv. Sh. 1253, 302 N.E. 2d 565 (1973); 
Opinion of the Justices, 349 Mass. 802, 212 N.E. 2d 217 (1965); Opinion 
of the Justices to the Senate, 333 Mass. 783, 113 N.E. 2d 563 (1955); 
Opinion of the Justices, 330 Mass. 713, 113 N.E. 2d 452 (1953). 
This principle has also governed opinions of the Attorney General. 

It is traditional that opinions of the Attorney General are 
rendered solely upon factual situations which actually con- 
front a given State department or agency, and not upon 
hypothetical questions or general requests for information. 
Opinion of the Attorney General, 112, 114 (December 23, 
1966). 

I. The Hypothetical Nature of The Question 

In this instance, the question presented by the House of Representa- 
tives is hypothetical in character. It assumes that termination of the af- 
fected employees would make it impossible for the Fraudulent Claims 
Board to perform its statutory duties. Upon investigation I have learned 
that this fact is the very crux of administrative hearings presently being 
conducted by the Insurance Commissioner as part of a termination pro- 



P.D. 12 177 

cedure. Considerable evidence has been introduced on both sides of this 
issue, and its resolution is uncertain. Thus, at this point, I confront a 
hypothetical question. The futility of such a question is that it reduces 
an opinion of the Attorney General to the status of a mere guess. An 
opinion under these circumstances is destructive insofar as it confuses 
and disrupts the expectations of interested parties. Accordingly, I must 
respect the long tradition against hypothetical opinions. 3 Op. Atty. 
Gen. 425, 428 (1911). 

II. The Incomplete Nature of The Question 

Upon further investigation I have learned that the question from the 
House does not cover the full range of legal issues involved in the sub- 
ject of termination of Fraudulent Claims Board employees. The full sub- 
ject requires analysis of statutes and judicial decisions in the areas of (a) 
civil serice law. (b) veterans' tenure, (c) collective bargaining, (d) and 
contractual provisions. I cannot fairly address this complex subject by 
answer to the question in its present partial form. 

HI. Pending Litigation 

As I mentioned before, the particular controversy prompting the ques- 
tion from the House is presently the subject of ongoing administrative 
litigation before the Commissioner of Insurance. Again, the Attorney 
General does not render opinions upon matters in pending litigation. 
While the Attorney General's opinion is advisory only, a decision result- 
ing from litigation, judicial or administrative, is compulsory and does 
bind the parties to it. It would serve no useful purpose for me to render 
an advisory opinion rendered meaningless subsequently by a compul- 
sory adjudicatory decision in this matter. Again, such an opinion would 
disserve any useful purpose insofar as it might confuse and mislead in- 
terested parties or conflict with a genuinely binding decision. 

A further consideration arises from the pending of litigation in the pre- 
sent instance. If appeal is taken to the courts from the present litigation 
before the Insurance Commissioner, it may well be the function of my 
office to represent the Commissioner and to defend the result of that 
litigation in the courts. If my opinion varied from that result, I would 
have prejudiced my prospective case and client. I would then feel free to 
renounce any earlier opinion as advisory only and devoid of any binding 
precedential value. Thus, in the present circumstance, the question of 
the House puts me to an unfortunate conflict with respect to my duties 
to the House, on the one hand, and my responsibilities to represent Ex- 
ecutive agencies on the other. For this reason alone, I would again have 
to respectfully decline to respond. 

IV. The Non-Binding or Advisory Nature of an Attorney General's 
Opinion. 

I have made repeated reference to the non-binding, advisory character 
of an Attorney General's opinion. A final word of explanation may be in 
order on this point. Unlike a judicial decision resulting from a lawsuit, a 
mere advisory opinion (1) does not emerge from the testing process of 
evidence and fact-finding, and (2) does not rest upon an adversary con- 
frontation of counsel offering a sharpened presentation of opposing legal 



178 P.D. 12 

arguments. For these reasons opinions are not afforded the same weight 
and value as decisions. Opinion of the Justices, 1974 Mass. Adv. Sh. 
1015, 1029; Opinion of the Justices, 341 Mass. 738, 749 (1960); lerardi. 
Petitioner, 1975 Mass. Adv. Sh. 93, 106. For the same reasons, an ad- 
visory opinion in this instance may quickly prove valueless as the full 
facts emerge and the case moves to the courts. Neither the Attorney 
General nor any affected party would be bound by it or derive any bene- 
fit from it. 

CONCLUSION 

Because the present question from the House presents a question 
hypothetical, incomplete, subject to pending litigation, and fraught with 
a conflict of duty on my part, I must respectfully decline to answer. 

Very truly yours, 
FRANCIS X. BELLOTTI 

Attorney General 



P.D. 12 179 



TOPICAL INDEX 



OPINION PAGE 

Administrative Law and Procedure: 

application of APA to State Building Code Commission.. 36 83 

authorized transfer of state and federal funds from old to 

new planning and development commission 32 78 

autonomous regulatory authority of University of Massa- 
chusetts notwithstanding Administrative Procedure Act .. 44 94 
Board of Education has authority to promulgate regula- 
tions under school anti-discrimination statute 1 40 

Bureau of Library Extension governed by State Board of 

Education 61 145 

Commissioner of Natural Resources may not delegate 

regulatory authority to Conservation Commissions 71 168 

departmental jurisdiction to specify duties of state sani- 
tary engineer 70 167 

executive branch may not refuse to expend funds for 

manpower program appropriated by legislature 58 135 

public or non-profit agencies receiving state funding for 
Commonwealth public relations permitted to spend pri- 
vate funds for travel, etc 50 1 19 

regulation of Logan Airport responsibility of Mas- 
sachusetts Port Authority 3 45 

Administrative Procedure Act: 

see Administrative Law and Procedure 

Airport: 

see Administrative Law and Procedure 

Aliens: 

citizenship requirement for registration of pharmacists 
unconstitutional 64 151 

Amnesty: 

see War and National Defense 

Annuities: 

credit given teachers for non-public school service if 

school tuition was supported by Commonwealth 43 92 

Armed Services: 

term of office of Air National Guard major general of the 

line not applicable to one not commanding a combat unit. 24 65 

Attorney and Client: 

county Treasurer entitled to reimbursement for reasona- 
ble legal expenses for arbitration hearings 67 158 

Attorney General: 

advisory opinions limited to instances of genuine need .... 65 153 

refusal to answer abstract questions of law, or imprecisely 
stated legal questions, a question involved in pending 73,74, 171,172 
litigation 76 175 



180 P.D. 12 

OPINION PAGE 

refusal to comment on speculative legal liability of Com- 
missioner of Public Safety 33 78 

refusal to interpret federal court decision pending appeal . 2 44 

uncertainty as to authority to render formal opinions to 

legislative commissions 47 ill 

where facts are insufficient, or public officers do not need 
response to carry out duties. Attorney General will not 
comment on constitutional issues 31 75 

Automobiles: 

no opinion granted pending appeal of federal decision in- 
validating operator's license statute 2 44 

Banks and Banking: 

Banking closely regulated industry since vital to public 

interest 38 86 

Billboards: 

see Highways 

Birth Record: 
see Records 

Bonds: 

public employees required by statute to be covered by 

surety bonds; blanket type bonds prohibited 51 120 

schedule of bond repayment for local school construction 

by Board of Education governed by state 60 141 

Building Code: 
see Inspection 

Campaign Financing: 

see Constitutional Law; elections 

Census: 

approval of instructions for census-taking according to 

constitutional amendment 53 124 

Child Abuse: 

see Parent and Child; records 

City Council: 

see Municipal Corporations 

City Engineer: 

see Municipal Corporations 

Civil Rights: 

Registry of Motor Vehicles prohibited from disseminating 

criminal offender records to unauthorized parties 28 71 

neither individual right to privacy nor statute prohibits 
publication or names of candidates failing to file campaign 
financing reports 55 126 



P.D. 12 181 

OPINION PAGE 

C ivil Service Re-Employment: 
see Work and Labor 

C lerks of Court: 

may issue warrant to search premises anywhere in the 
Commonwealth 6 50 

Collective Bargaining: 
see Labor Relations 

Colleges and Universities: 

autonomous regulatory authority of University of Mas- 
sachusetts notwithstanding Administrative Procedure Act 44 94 
broad fiscal powers of Southeastern Massachusetts Uni- 
versity Trustees includes authority to purchase employee 

liability insurance 72 169 

trust company may not accept deposits on campus with- 
out state authorization 38 86 

Vietnam veterans exempt from tuition at summer and 

evening community college courses 8 52 

Commerce: 

public or non-profit agencies receiving state funding for 
Commonwealth public relations permitted to spend pri- 
vate funds for travel expenses, etc 50 119 

C onservation Commission: 

see Administrative Law and Procedure 

Constitutional Law: 

citizenship requirement of Pharmacy Registration Board 

unconstitutional violation of equal protection 64 151 

constitutional amendment abolishing the Executive Coun- 
cil placed on election ballot 12 55 

executive branch may not refuse to spend funds appro- 
priated by legislature 58 135 

neither individual right to privacy nor state bars publica- 
tion of name of candidates who fail to file campaign 

financing reports 55 126 

only persons who receive substantial compensation for 

lobbying efforts required to register as legislative agents.. 48 1 12 

preemption of state statute by federal election campaign 

law 69 165 

refusal to define "religious society' where factual basis is 

insufficient 31 75 

statutory exception for individual from police officer's 

criteria valid under certain conditions 75 174 

Constitutional Law: 

textbook loans to non-public schools not in violation of 

Establishment Clause ' 65 153 

voluntary associations employing a legislative agency pro- 
tected by First Amendment from mandatory membership 
disclosure 48 114 



182 P.D. 12 

OPINION PAGE 

whether pre-hearing release of names of alleged violators 
of campaign financing law prejudices their right to a fair 
trial must be decided on a case-by-case basis 55 126 

Contracts: 

microfilming of State Secretary's records to competitive 

bidding 63 150 

Counties: 

reimbursement for legal expenses of Treasurer at arbitra- 
tion hearings 67 158 

Criminal Law: 

Registry of Motor Vehicles prohibited from disseminating 

criminal offender records to unauthorized parties 28 71 

Criminal Records: 
see records 

Discrimination: 

see Schools and School Districts 

District Court Special Justices: 
see Judges 

Domicile: 

for purposes of census, means residence and intent to re- 
main for a time 53 124 

Education: 

see Administrative Law and Procedure; Schools and 
School Districts 

Elections: 

amnesty for Vietnam War resisters a public policy ques- 
tion properly placed on election ballot 9 53 

comprehensive land use control legislation a public policy 

question properly placed on election ballot 17 58 

constitutional amendment abolishing Executive Council a 
question of public policy properly placed on election 

ballot 12 55 

gun control legislation a public policy question properly 

placed on election ballot 20 61 

gun control legislation a question of public policy properly 

placed on election ballot 18 59 

initiative petition amending campaign law does not elimi- 
nate Director of Campaign and Political Finance 37 83 

neither individual right to privacy nor statute prohibits 
publication of names of candidates failing to file campaign 

financing reports 55 1 26 

preemption of state statute by federal elections campaign 

law 69 165 

question of adding streetcar line a public policy issue 

properly placed on election ballot 22 63 





183 


OPINION 


PAGE 


19 


61 


15 


57 


13 


56 


14 


56 


21 


62 


16 


58 


11 


54 


10 


54 



P.D. 12 



legislation permitting override of school budget by city or 
town council a public policy question properly placed on 

election ballot 

rent control leigslation a public policy question properly 

placed on election ballot 

resolution to close nuclear power plants a public policy 

question properly placed on election ballot 

resolution encouraging U.S. Congress to pass federal land 
use control legislation for Nantucket Sound Islands a pub- 
lic policy question properly placed on election ballot 

resolution opposing nuclear power plants a public policy 

question properly placed on election ballot 

restriction of public smoking areas a public policy ques- 
tion properly placed on election ballot 

subway station construction a public policy question 

properly placed on election ballot 

telephone rates a public policy question properly placed 
on election ballot 

Eminent Domain: 

compensation to permittees for sign removal under state 

and federal laws 46 99 

Executive Council: 

see Constitutional Law 

Executive Impoundment of Appropriations: 
see Attorney General 

Federal Preemption: 

see Constitutional Law 

Gun Control: 

see Weapons 

Handicapped Persons: 

see Health and Environment 

Health and Environment: 

Architectural Barriers Board regulations making public 

buildings accessible to the physically handicapped 68 159 

Commissioner of Natural Resources has sole authority to 
promulgate regulations; regulatory authority may not be 

delegated to another agency 

compensation to permittees for billboard and sign removal 

under state and federal laws 

legislation restricting public smoking areas placed on elec- 
tion bal lot 

resolution to close nuclear power plants placed on elec- 
tion ballot 

resolution opposing nuclear power plant placed on elec- 
tion bal lot 

Highways: 

authority of Commissioner of Public Works to restrict 

overload permits 47' 111 



71 


168 


46 


99 


16 


58 


13 


56 


21 


62 



184 P.D. 12 

OPINION PAGE 

compensation to permittees for billboard and sign removal 

under state and federal laws 46 99 

truck washing business exempt from Sunday laws 7 51 

Historical Records: 
see Records 

Holidays: 

state employees entitled to only one day for Patriot's Day 

holiday 54 125 

Housing Subsidies: 

see Landlord and Tenant 

Husband and Wife: 

any religious organization complying with statutory re- 
quirements for legal recognition may solemnize marriages 31 75 
child's name may be recorded as hyphenated combination 
of mother's maiden name and father's surname, in any 

order 29 72 

a married woman who has retained her maiden name need 

not use her husband's name for any purpose 5 48 

Initiative Petition: 
see Statutes 

Inspection: 

Commissioner of Public Safety has oversight and en- 
forcement authority of State Building Code; direct re- 
sponsibility for local building inspection rests with local 
inspectors 33 78 

Insurance Commissioner: 
see Attorney General 

Judges: 

may issue warrant to search premises anywhere in the 

Commonwealth 

special justices entitled to statutory cost of living salary 

adjustment 

special justices to be treated as full-time justice for retro- 
active salary adjustment 

Supreme Judicial Court renders decisions when not 
strictly necessary, but of assistance to agency 

Labor Relations: 

application of Public Employee Bargaining law to De- 
partment of State Auditor 34 80 

eligibility of non-reappointed state employees for retire- 
ment benefits 39 88 

see also Work and Labor 

Land Use Controls: 
see Public Lands 



6 


50 


45 


97 


45 


97 


65 


153 



P.D. 12 185 

OPINION PAGE 

Land Use Planning: 
see Zoning 

Landlord and Tenant: 

eligibility of low income persons for state and federal 

housing subsidies 40 89 

rent control legislation placed on election ballot 15 57 

Legislative Agent: 

see Constitutional Law 

Library Extension Bureau: 

see Administrative Law and Procedure 61 145 

Licenses: 

no opinion granted pending action of federal decision in- 
validating operator's license statute 2 44 

state license for master or journeyman plumber not pre- 
requisite to bidding for plumbing installation 35 82 

Lobbyist: 

see Constitutional Law 

Lotteries: 

provisions of statute governing financial reporting within 
state secretariats not applicable to State Lottery 
Commission 23 64 

Marriage: 

any religious organization complying with statutory re- 
quirements for legal recognition may solemnize marriages; 
limitations for non-residents 31 75 

Medical Examiner: 

see Physicians and Surgeons 

Microfilm: 

see Records 

Motor Vehicles: 

see Automobiles 

Motor Vehicle Registry: 
see Records 

Municipal Corporations: 

State Department jointly finding and contracting with city 
for river dredging not required to open project to competi- 
tive bidding 24 65 

city council appointing authority for city engineer 27 69 

Names: 

child's name may be recorded as hyphenated combination 
of mother's maiden name and father's surname, in any 
order 29 72 



186 P.D. 12 

OPINION PAGE 

a married woman who has retained her maiden name need 

not use her husband's name for any purpose 5 48 

mother's maiden name may be recorded as her own on 

child's birth record 29 72 

Nantucket Sound Islands Trust Bill: 

see Public Lands 14 56 

Natural Resources: 

see Health and Environment 

Navigable Waters: 

State Department jointly funding and contracting with city 
for river dredging not required to open project to competi- 
tive bidding 24 65 

Nuclear Power Plants: 

see Health and Environment 

Officers: 

statutory term of office not applicable to major general of 

Air National Guard not a commander of a combat unit ... 25 66 

line officers are commanders of combat units 25 66 

Outdoor Advertising: 
see Highways 

Overload Permits: 
see Highways 

Parent and Child: 

children whose parents' religious beliefs prevent the par- 
ents from providing them medical care are nevertheless 

entitled to medical services 59 139 

child's name may be recorded as hyphenated combination 
of mother's maiden name and father's surname, in any 

order 29 72 

reports of child abuse to Department of Public Welfare 

not limited to cases of serious injury 59 139 

statutory definition of serious injury to child 66 1 57 

written documentation of child abuse by a professional is 
not necessary to establish 'reasonable cause' for Depart- 
ment of Public Welfare 59 139 

Pensions: 

credit given teachers for non-public school service if 

school tuition was supported by Commonwealth 43 92 

Pharmacy Registration: 
see Aliens 



Physicians and Surgeons: 

statutory residence requirement for appointed medical 
examiner 



26 69 



P.D. 12 187 

OPINION PAGE 

Planning and Development Commission: 
see Administrative Law and Procedure 

Plumbers: 

see Licenses 

Police Officers: 

see Sheriffs and Constables 

Political subdivision: 

see Municipal Corporation 

Public Buildings: 

see Health and Environment 

Public Contracts: 

state department contracting with city, and providing half 
funding for river dredging not required to open project to 

competitive bidding 24 65 

statutory permission to adjust price of liquid asphalt in 

construction contracts 41 90 

Public Lands: 

resolution encouraging U.S. Congress to pass federal land 
use control legislation for Nantucket Sound Island placed 
on election ballot 14 56 

Public Policy: 
see Elections 

Public Records: 
see Records 

Public Safety: 

see Inspection 

Public Smoking Areas: 

see Health and Environment 

Public Transportation: 
see Street Railroads 

Public Utilities: 

see Work and Labor 

Records: 

amendment of birth records of transsexuals 62 147 

campaign financing records retained by Director of Cam- 
paign and Political Finance. Secretary of State 37 83 

child abuse reports are confidential unless disclosure is in 

the child's best interest 59 139 

child's name may be recorded as hyphenated combination 
of mother's maiden name and father's surname, in any 
order 29 72 



OPINION 


PAG 


56 


130 


63 


150 


55 


126 


52 


123 



188 P.D. 12 



disclosure of criminal records and social security numbers 
for computer investigation of employment training pro- 
gram applicants 

microfilming of State Secretary's records permissible 

under public records law 

neither constitution nor statute prohibits publication of 
names of candidates who fail to file campaign financing 

reports 

Records Conservation Board permitted to loan state rec- 
ords to private institution 

Registry of Motor Vehicles prohibited from disseminating 
criminal offender record information to unauthorized 
parties 28 71 

Regional Community Colleges: 
see Colleges and Universities 

Registers of Deeds: 

statutory requirement of surety bond; blanket type bond 

not permitted 51 120 

Religious Societies: 

insufficient factual basis and lack of necessity for Attor- 
ney General to reach constitutional issue of defining 
'church' or 'religious organization' 31 75 

Rent Control: 

see Landlord and Tenant 

Right to Privacy: 

see Constitutional Law; Records 

Salaries: 

see Work and Labor 

Schools and School Districts: 

Board of Education has authority to promulgate regula- 
tions under school anti-discrimination statute 1 40 

Board of Education may not refuse funds for an approved 

construction project 30 74 

legislation permitting a two-thirds vote of a city or town 

council to override school budget placed on election ballot 19 61 

schedule of bond repayment for local school construction 

by Board of Education governed by statute 60 141 

textbook loan program to non-public school constitution- 
ally valid 65 153 

Searches and seizures: 

district court judges and clerks actually to issue search 

warrants 6 50 

Sheriffs and Constables: 

statutory exception for individual applicant from police 

criteria constitutional under certain conditions 75 174 



P.D. 12 189 

OPINION PAGE 

Social Security Benefits: 
see Pensions 

Social Security Numbers: 
see Records 

Southeastern Massachusetts University: 
see Colleges and Universities 

State Building Code Commission: 

see Administrative law/ and Procedure 

State Consultants: 
see Taxation 

State Employees: 

see Attorney General 

State Employees Retirement Benefits: 
see Labor Relations 

State Lottery Commission: 
see Lotteries 

Statutes: 

implies repeal of statute empowering Massachusetts 

Aeronautics Commission to regulate Logan Airport 

presumption of constitutional validity; interpretation to 

avoid constitutional questions 

provisions of statute to be construed harmoniously, con- 
sistent with statutory language and administrative practice 
where initiative petition amending campaign statute can 
be harmonized with existing law, repeal will not be 
implied 37 83 

Street Railroads: 

construction issue placed on election ballot II 54 

question of adding a streetcar line placed on election 

ballot 22 63 

Subways: 

see Street Railroads 

Sunday truck-washing business exempt from Sunday Law 7 51 

Taxation members of Real Estate Review Board not em- 
ployees of Department of Public Works for income tax 
withholding purposes 49 115 

Teacher's Retirement Board: 
see Pensions 

Telecommunications: 

telephone rates a public policy question properly placed 

on election ballot 10 54 



3 


45 


65 


153 


61 


145 



190 P.D. 12 

OPINION PAGE 

Towns: 

legislation permitting a two-thirds vote of a city council or 
town meeting to override school budget placed on election 
ballot 19 61 

Transsexuals: 
see Records 

Truck Overloads: 
see Highways 

Trusts: 

trust company not expressly or impliedly empowered to 
accept deposits on university campus without 
Commissioner's approval 38 86 

University of Massachu^.etts: 

see Schools and Scfiool Districts 

Veterans: 

see Colleges and Universities 

Vital Statistics: 
See Records 

War and National Defense: 

amnesty for Vietnam War resisters a public policy ques- 
tion properly placed on election ballot 9 53 

Waters and Water Courses: 

state department contracting with city; and providing half 
funding for river dredging not required to open project to 
competitive bidding 24 65 

Weapons: 

gun control legislation placed on election ballot 18 59 

gun control legislation placed on election ballot 20 61 

Work and Labor: 

salary adjustments of Commissioners of Public Utilities ..4 48 

definitions of 'state employee' and 'state worker' 34 80 

state employee's salary upon demotion 42 91 

Civil Service employees on re-employment list eligible for 

all jobs for which qualified 57 134 

Zoning: 

comprehensive land use control legislation placed on elec- 
tion ballot 17 58 

REQUESTING AGENCY 

Adjutant General 25 66 

Administration and Finance, Executive Office for 41 90 

Administration and Finance, Executive Office for 54 125 



P.D. 12 191 

OPINION PAGE 

Aeronautics, Director of 3 45 

Auditor of the Commonwealth 34 80 

Banks, Commissioner of 38 86 

Building Code Commission 36 83 

Campaign and Public Finance, Office of 37 83 

Campaign and Political Finance, Director of 55 126 

Campaign and Political Finance, OtTice of 69 165 

Children, Office for 59 139 

Children, Office for 66 157 

Civil Service, Division of 27 69 

Civil Service, Dept. of 70 167 

Civil Service, Dept. of 75 174 

Commerce and Development, Department of 50 119 

Community Affairs 32 78 

Corporations and Taxation, Commissioner of 45 97 

Corporations and Taxation, Dept. of 51 120 

Corporations and Taxation, Commissioner of 67 158 

Criminal History Systems Board 28 71 

District Attorney, Southern District, New Bedford 6 50 

Education, Department of 1 40 

Education, Department of 30 74 

Education, Commissioner of 43 92 

Education, Department of 60 141 

Education. Department of 61 145 

Education. Commissioner of 65 153 

Governor 26 69 

Health. Welfare & Retirement Trust Funds Board 57 134 

House of Representatives. Commonwealth of 

Massachusetts, Speaker of 58 135 

House of Representatives, Commonwealth of 

Massachusetts 74 172 

House of Representatives, Commonwealth of 

Massachusetts 76 1 75 

Manpower Affairs, Exec. Office of 56 130 

Massachusetts Commission Against Discrimination 5 48 

Massachusetts Housing Finance Agency 40 89 

Motor Vehicles, Registrar of 2 44 

Natural Resources, Department of 71 168 

Public Safety, Commissioner of 7 51 

Public Safety. Office of 33 78 

Public Safety, Office of 68 159 

Public Utilities, Department of 4 48 

Public Works. Department of 24 65 

Public Works, Outdoor Advertising Board 46 99 

Real Estate Review Board 49 115 

Record Conservation Board 52 123 

Regional Community Colleges. Board of 8 52 

Registration, Division of 35 82 

Registration, Division of 64 151 

Secretary of the Commonwealth 9 53 

Secretary of the Commonwealth 10 54 

Secretary of the Commonwealth 1 1 54 

Secretary of the Commonwealth 12 55 

Secretary of the Commonwealth 13 56 



192 P.D. 12 

OPINION PAGE 

Secretary of the Commonwealth 14 56 

Secretary of the Commonwealth 15 57 

Secretary of the Commonwealth 16 58 

Secretary of the Commonwealth 17 58 

Secretary of the Commonwealth 18 59 

Secretary of the Commonwealth 19 61 

Secretary of the Commonwealth 20 61 

Secretary of the Commonwealth 21 62 

Secretary of the Commonwealth 22 63 

Secretary of the Commonwealth 29 72 

Secretary of the Commonwealth 31 75 

Secretary of the Commonwealth 48 112 

Secretary of the Commonwealth 53 124 

Secretary of the Commonwealth 62 147 

Secretary of the Commonwealth 63 150 

Senate. Commonwealth of Massachusetts 73 171 

Southern Massachusetts University 72 169 

Special Overload Commission 

House of Representatives 47 HI 

Treasurer and Receiver General as Chairman 

of State Lottery Commission 42 91 

Treasurer of the Commonwealth 39 88 

Treasurer of the Commonwealth 23 64 

University of Massachusetts, Office of 

the President 44 94 

INDEX OF CASES 

Answer of the Justices to the Governor, 1973 Mass. Adv. Sh. 

1253..; 73 171 

Answer of the Justices to the Governor, 1973 Mass. Adv. Sh. 

1253 74 173 

Answer of the Justices to the Governor, 1973 Mass. Adv. Sh. 

1253 76 176 

Anton's of Readinf^, Inc. v. Reading, 346 Mass. 575 (1964) ... 65 155 

Armstrong v. WcdHng, 161 F.2d 515 (1st. Cir. 1947) 68 162 

Ashwanderv. 7. P^ ./J., 297 U.S. 288 (1936) 65 155 

Attorney General v. McCabe, 172 Mass. 417 (1899) 27 71 

Attorney General v. Trustees of Boston Elevated Railway, 

319 Mass. 642, 655 (1946) ." 1 41 

Attorney General v. Union Plumbing Co., 301 Mass. 86 (1938) 35 82 

Austin V. Soule, 36 Vt. 645 (1864) 68 160 

Bacon v. Boston Elevated Railway, 246 Mass. 30 (1926) 5 49 

Baker v. Commonwealth, 312 Mass. 490, 493, (1942) 58 136 

Bates w. Little Rock, 36\ U.S. 516 (1960) 48 114 

Berube v. Selectmen of Edgartown, 336 Mass. 634 (1958) 40 90 

Board of Appeals of Hanover v. Housing Appeals Committee, 

1973 Mass. Adv. Sh. 491 ] 27 71 

Board of Appeals of Hanover v. Housing Appeals, 1973 Mass. 

Adv.' Sh. 491...." 65 155 

Board of Assessors of Holyoke v. State Ta.x Commission. 355 

Mass. 223. 243-244 (1969) I 43 

Board of Assessors of Newton v. Pickwick Ltd., 351 Mass. 

621, 625 (1967) 34 81 



OPINION 


PAC 


h5 


154 


65 


154 


25 


67 


68 


162 


68 


161 



P.D. 12 193 



Board of Edmalion v. Allen. 392 U.S. 236(1968) 

Boh Ware's Food Shop Inc. v. Brookline, 349 Mass. 385, 

(1965) 

Brcnnan v. Board of Election Commissioners of the Citx of 

Boston. 310 Mass. 784 (1942) ". 

Brennan v. 07v of Titusville. 153 U.S. 289 (1894) 

Brooks V. State. 198 Ga. App. 3. 90 S.E. 989 (1916) 

Bureau of Old Ai^e Assistance of Natick v. Commissioner of 

Pnhlic Welfare. 326 Mass. 121. 124 1950 .'. 1 42 

Bureau of Old Ai>e Assistance oj Natick v. Commissioner of 

Public Welfare. 326 Mass. 121(1950) 71 169 

Buvarsky. Petitioner. 322 Mass. 335 (1948) 5 49 

Buvarskw Petitioner, 322 Mass. 335 (1948) 29 73 

Castro V. Beecher. 365 F. Supp. 655. 660-662 (D. Mass. 1973). 75 175 

Chapman v. Phoenix National Bank. 85 N.Y. 437 (1881) 5 49 

Chicchetti. et al v. Lucy. U.S.D.C. (D. Mass.) C.A. No. 

73-3188-F 2 44 

Chicopee Co-Op Bank v. Board of Bank Incorporation, 347 

Mass. 744 (1964) ." 38 87 

Chipman v. MBTA. 1974 Mass. Adv. Sh. 1447 65 155 

City of Boston v. Massachusetts Port Authority, 346 Mass. 

741(1970) (rescript) ". 3 46 

City of Boston v. Massachusetts Port Authority. 1974 Mass. 

Adv. Sh. 197 ' 3 47 

Cizenski v. Industrial Accident Board. 1975 Mass. Adv. Sh. 

635 65 154 

Cleary v. Cardullo's Inc.. 347 Mass. 337. 343-344 (1964) 1 42 

Cleaveland v. Norton, 60 Mass. (6 Cus) 380 (1850) 25 68 

Commonwealth v. Diaz. 326 Mass. 525 (1950) 71 169 

Commonwealth v. Lamb, 1974 Mass. Adv. Sh. 713, 717 61 146 

Commonwealth v. Lamb, 1974 Mass. Adv. Sh. 713 65 155 

Commonwealth v. Penta, 352 Mass. 271, 273, (1967) 6 50 

Commissioner of Public Health v. Bessie M. Burke Memorial 

Hospital. 1975 Mass. Adv. Sh. 253 75 174 

Commonwealth v. Thomas. 359 Mass. 386, 387 (1971) 60 144 

Commonwealth v. Welosky, 276 Mass. 398, cert, denied 284 

U.S. 684 (1931) '. 25, 38 68, 87 

Commonwealth v. Woods Hole. Martha's Vineyard and Nan- 
tucket S.S. Authority, 352 Mass. 617, 618 (1967) 61 146 

Continental-Hyannis Furn. Co. v. State Tax Commission, 

1974 Mass. Adv. Sh. 2015, 2016 60 144 

County of Nevada v. MacMillan. 11 Col. 3d. 662; 522 P. 2d 

662 (1974) 55 128 

Cullen V. Mayor of Newton. 308 Mass. 518, 583-584 (1941).... 60 144 

DeBlois V. Commissioner of Corporations and Taxation. 276 

Mass. 437 (1931) 33 79 

Dennis v. Wilson. 107 Mass. 581 (1871) 68 164 

Doherty v. Commissioner of Administration. 349 Mass. 687. 

690(1965) ". 3 47 

Doherty v. Commissioner of Administration, 349 Mass. 687 

(1965) 37 84 

Doherty v. Commissioner of Administration. 349 Mass. 687 

(1965) ." 44 95 



194 P.D. 12 

OPINION PAGE 

John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 

1972 Mass.' Adv. Sh. 1057 46 101 

DiiPont V. Planning and Zoning Commission, 156 Conn. 213, 

240 A. 2d 889(1968) 68 163 

Eisenstadt v. County of Suffolk, 33 1 Mass. 570 ( 1954) 45 97 

Commissioner of Corporations and Taxation v. Chilton Club, 

318 Mass. 285, 288 (1945) 60 144 

Commissioner of Corporations and Taxation v. Chilton Club, 

318 Mass. 285, 288 (1945) 61 146 

Commonwealth v. Certain Lottery Tickets, 59 Mass. 369 

(1850) .' 66 157 

Environmental Defense Fund Inc. v. Ruckelshaus, 439 F.2d 

584, 596-598 (D.C. Cir. 1971) 1 43 

Estesw. Texas, 3S\ U.S. 582 (1965) 55 127 

Finance Committee of Falmouth v. Falmouth Board of Public 

Welfare, 345 Mass. 579(1963) ". 56 133 

First National Bank v. Missouri, 263 U.S. 640 ( 1928) 38 87 

First National Bank of Cape Cod v. Board of Bank 

Incorporation, 1972 Mass. Adv. Sh. 537 38 87 

Fluet V. McCabe, 299 Mass. 173, 178 (1938) 1 41 

Fluetv. McCabe, 299 MdiS^. 173(1938) 44 96 

Forbes v. Kane, 316 Mass. 207 (1944) 27 70 

George A. Fuller Co. v. Commonwealth, 303 Mass. 216 (1939) 1 41 

Gangi v. Salem Board of Appeals, 334 Mass. 183 (1956) 68 163 

Gibson v. Florida Legislative Investigation Committee, 372 

U.S. 539(1963) 48 114 

Graham v. Richardson, 402 U.S. 365 (1971) 64 152 

Green v. Commissioner of Corporations and Taxation, 1973 

Mass. Adv. Sh. 1549, 1554 5 49 

Hershkoffv. Board of Registrars of Voters, 1974 Mass. Adv. 

Sh. 2427 '. 53 125 

Homer v. Dade Land Shopping Center, 229 So. 2d 834 (Fla. 

1970) 68 163 

Howard v. State Board of Retirement, 325 Mass. 211 (1950).. 39 88 

lerardi. Petitioner, 1975 Mass. Adv. Sh. 93, 100 65 154 

lerardi. Petitioner, 1975 Mass. Adv. Sh. 93, 106 76 178 

Illinois Citizens Committee for Broadcasting v. F.C.C., 467 

F.2d 1397, 1401 (7th Cir. 1972) 3 46 

/// Re Chouinard, 358 Mass. 780, 782 (1971) 60 144 

In Re Griffiths, 413 U.S. 717 (1973) 64 152 

Industrial Finance Corp. v. State Tax Commission, 1975 

Mass. Adv. Sh. 967, 977-78 61 147 

Jankovich v. Indian Toll Road Commission, 379 U.S. 487 

(1965) 3 46 

Johnson v. George Highway Express, Inc., 488 F.2d 714 (5th. 

Cir. 1974) .' 67 159 

Koley V. Williams, 256 Mass. 601 (1929) 5 49 

Liberty Mutual Ins. Co. v. State Tax Commission, 1974 

Mass. Adv. Sh. 895-99 61 147 

Loschi V. Massachusetts Port Authority, 354 Mass. 53 (1968). 3 46 

Lynch v. Commissioner of Education, 317 Mass. 73, 79-80 

' (1950) '. 1 42 

Mark v. Kahn, 333 Mass. 517 (1956) 29 73 





195 


OPINION 


PAGE 


61 


145 


3 


47 



P.D. 12 



Marshall House. Inc. v. Rent Control Board of Biooklinc. 358 

Mass. 686. 698-99 (1971) .' 

Massachusetts Port Authority v. Clerk of East Boston District 

Court. 350 Mass. 195, 202 (1966) '. 

Mass. Trustees of E. Gas & Fuel Assoc, v. United States, 

202 F.Supp. 297 (1962), opinion amended 210 F.Supp. 822. 

affd. 312 F.2d 214. affd. 377 U.S. 235 (1964) 6! 145 

Matheuson v. Contributory,- Retirement Appeal Board. 335 

Mass. 610. 614-15 (1957)' 61 146 

Maver v. Boston Metropolitan Airport. Inc. 355 Mass. 344, 

347, n.4 (1969) 3 45 

McCarthy v. Wohurn Housing Authority. 341 Mass. 539 

(1960)." .■ 40 90 

McLauiihIin v. Florida, 379 U.S. 184 (1964) 64 152 

Medeiros v. Board of Election Commissioners of Fall River, 

1975 Mass. Adv. Sh. 862, 869-70 60 144 

Meek v. Pittenger, 421 U.S. 349 (1975) t)5 155 

Merit Oil Co. v. Director, 319 Mass. 301 (1946) 65 155 

Merolevitz, Petitioner, 320 Mass. 448, 450 (1946) 1 

Merolevitz, Petitioner, 320 Mass. 448 (1946) 5 49 

Merolevitz. Petitioner, 320 Mass. 448 (1946) 29 73 

Milligan v. Board of Registration in Pharmacy, 348 Mass. 

491, 500 (1965) ' 44 94 

Multiline Insurance Rating Bureau v. Commissioner of 

Insurance, 351 Mass. 19,22(1970) 1 42 

NAACP V. Alabama, 357 U.S. 449 (1958) 48 114 

New York Times v. Sullivan, 375 U.S. 254 (1964) 55 128 

Opinion of the Justices, 132 Mass. 600 (1882) 25 68 

Opinion of the Justices, 302 Mass. 605, 612-613, (1939) 58 136 

Opinion of the Justices, 309 Mass. 609, 625, 627 (1941) 58 137 

Opinion of the Justices, 313 Mass. 779 (1943) 25 68 

Opinion of the Justices, 313 Mass. 779 (1943) 68 160 

Opinion of the Justices, 330 Mass. 713 (1953) 73 171 

Opinion of the Justices, 330 Mass. 713 (1953) 74 173 

Opinion of the Justices, 330 Mass. 713 (1953) 76 176 

Opinion of the Justices, 341 Mass. 738, 749 (1960) 76 176 

Opinion of the Justices, 349 Mass. 802 (1965) 73 171 

Opinion of the Justices. 349 Mass. 802 (1965) 74 173 

Opinion of the Justices. 349 Mass. 802 (1965) 76 176 

Opinion of the Justices. 1971 Mass. Adv. Sh. 1869 45 99 

Opinion of the Justices. 1973 Mass. Adv. Sh. 535 44 96 

Opinion of the Justices to the House of Representatives, 1974 

Mass. Adv. Sh. 819 53 125 

Opinion of the Justices to the House of Representatives, 1974 

Mass. Adv. Sh. 1015.1029 76 176 

Opinion of the Justices, 1975 Mass. Adv. Sh. 535 72 170 

Opinion of the Justices to the Senate, 333 Mass. 783 (1955)... 73 171 

Opinion of the Justices to the Senate, 333 Mass. 783 (1955) ... 74 173 

Opinion of the Justices to the Senate, 333 Mass. 783 (1955) ... 76 176 

Panghurn v. CAB, 311 F.2d 349 (1st Cir. 1962) 40 90 

Patterson v. Colorado. 205 U.S. 454 (1907) 55 127 

Peachy v. Bosnell, 240 Ind. 604, 167 N.E.2d 48 (1960) 68 160 

Pennsylvania v. Nelson, 350 U.S. 497 (1956) 69 166 

Perez v. Campbell, 402 U.S. 637 (1971) 69 166 



196 p.D. 12 

OPINION PAGE 
Phillips V. Martin Moratta Corporation, 400 U.S. 542, 544-45 

(1971) 5 49 

Pierce's Cose, 325 Mass. 649 (1950) 65 154 

Power V. Board of Examination of Plumbers, 2^\ Mass. (1932) 35 82 

Price V. REA, Inc. 322 Mass. 476. 484 (1948) 60 144 

Public Funds for Public Schools of New Jersey v. Marburger, 

358 F. Supp. 29(E.D. Pa. 1973) .' 65 154 

Randall's Case, 331 Mass. 383 (1954) 45 98 

Real Properties Inc. v. Board of Appeals, 311 Mass. 430 

(1942) 33 79 

Fritz V. Gorton, 83 Wash. 2d 275, 517 P. 2d. 911 (1974) 55 128 

Rosenbloom v. Metromedia, Inc., 403 U.S. 29(1971) 55 128 

Scannell v. State Ballot Law Commission, 324 Mass. 494, 

501-502 (1949) 1 42 

School Committee of New Bedford v. Commissioner of 

Education, 349 Mass. 414 (1965) 1 43 

School Committee of New Bedford, v. Commissioner of 

Education, 349 Mass. 410 (1965) 30 75 

School Committee of City of Springfield v. Board of 

Education, 1972 Mass. Adv. Sh. 1543, 1564 1 43 

School Committee of Springfield v. Board of Education, 1974 

Mass. Adv. Sh. 2031 " 65 154 

Schluckebier v. Arlington Mutual Fire Insurance Company, 8 

Wise. 2d 480, 99 N.W.2d 705 (1959) 56 133 

Sheppardv. Markwell, 384 U.S. 333 (1966) 55 128 

Sherbertv. l/m?(^/-, 374 U.S. 398 ( 1963) 65 155 

State V. Nash, 74 N.J. Super. 510, 181 A. 2d 555 (1962) 68 163 

Stuart V. Board of Supervisors of Elections, 266 Md. 440, 295 

A. 2d 223 (1972) '. S 50 

Sugarman v. Dougall, 413 U.S. 634 (1973) 64 152 

Sullivan v. Worcester, 346 Mass. 570 (1963) 37, 44 85, 96 

Surabain v. Surabain, 362 Mass. 342, n.7 (1972), 1972 Mass. 

Adv. Sh.l461, 1466, n.7 5 49 

Taylor \. Goldstein, 329 Mass. 161 (1952) 68 161 

Tilton V. Haverhill, 311 Mass. 572, 577 (1942) 60 144 

Trustees of the Stigmatine Fathers v. Marchand, Suffolk 

Superior Court Eq. No. 36050 (1974) 58 137 

United States \. Harriss, 347 U.S. 6126 48 113 

United States v. Liebert, 383 F.Supp. 1060, 43 U.S.L.W. 2180 

(E.D. Pa. 1974) 55 128 

United States v. New England Coal & Coke Co., 318 F.2d 

138. 142(Ist. Cir. 1963) 60 144 

Wallace v. Brewer, 315 F.Supp. 431 (M.D. Ala. 1970) 48 114 

Walsh V. Commissioners of Civil Service, 300 Mass. 244 

(1938) ■. 37 85 

Wayman v. Southard, 23 U.S. (10 Wheaton) 1, 44 (1825) 58 137 

Western Waterproofing Co. v. Gevyn Construction, Suffolk 

Superior Court Eq. #93412 67 158 

MASSACHUSETTS STATUTES 

G.L. c. 3, §§39-49 Specifically §39, 41 48 112 

G.L. c. 4, §6 44 96 

G.L. c. 4, §6 60 144 



P.D. 12 197 

OPINION PAGE 

G.L. c. 4. §6 61 146 

G.L. c. 4, §7, as amended by St. 1973. c. 1050. §1 28 71 

G.L. c. 4, §7 55 129 

G.L. c. 4. §7 63 150 

G.L. c. 4, §7 (18) 54 126 

G.L. c. 6, §§167-178 28 71 

G.L. c. 6. §172 (b) 56 132 

G.L. c. 7. §22 63 151 

G.L. c. 8, §IOA 44 96 

G.L. c. 8. §I0A 72 120 

G.L. c. 9. §7, as amended by St. 1975, §10 53 124 

G.L. c. 10. §23 23 65 

G.L. c. II. §6 34 81 

G.L. c. 12. §9 47 111 

G.L. c. 12, §9 73 171 

G.L. c. 12. §9 74 173 

G.L. c. 12. §9 76 176 

G.L. c. 14. §§2. 3 51 120 

G.L. c. 15. §§1F. IG [para. 1.4, 5, 14. 18, 20] 1 41 

G.L. c. 15. §§9, 10, 11, 14 61 145 

G.L. c. 15. §§32. 39 8 52 

G.L. c. 15. §39 as added by St. 1964, c. 737, §1 8 52 

G.L. c. 15, §39 as amended by St. 1973, c. 1189. §1 8 52 

G.L. c. 22, §4a, amended by St. 1974. c. 541, §1 33 79 

G.L. c. 22, §13A 68 159 

G.L. c. 23A. App., §§1-13A 40 89 

G.L. c. 23A, §14 58 138 

G.L. c. 23B, §17 36 83 

G.L. c. 23B, §20, as amended by St. 1974, c. 541, §4 36 83 

G.L. c. 25, §2 34 48 

G.L. c. 26. §8B 76 175 

G.L. c. 29. §§27, 29, 30 72 170 

G.L. c. 29. §30 72 169 

G.L. c. 30, §15 51 120 

G.L. c. 30, §16 51 120 

G.L. c. 30, §18 51 121 

G.L. c. 30, §24A 54 125 

G.L. c. 30. §39M(a) 24 66 

G.L. c. 30. §39M(d) 24 66 

G.L. c. 30. §42 52 123 

G.L. c. 30, §46(8) 42 92 

G.L. c. 30. §46. as amended by St. 1973. c. 428 45 97 

G.L. c. 30, §45 44 96 

G.L. c. 30, §45 70 167 

G.L. c. 30A 68 160 

G.L. c. 30A, §§1(2) (5), 2, 3, 8 1 43 

G.L. c. 30A, §2 36 83 

G.L. c. 30A. §§2-9 44 94 

G.L. c. 31 75 174 

G.L. c. 31, §461 57 134 

G.L. c. 32, §1 43 93 

G.L. c. 32, §3(4) 43 93 

G.L. c. 32, §4(1) (p) 43 92 

G.L. c. 32. §10(2) (b) 39 88 



198 P.D. 12 

OPINION PAGE 

G.L. c. 33, §10 25 67 

G.L. c. 33, §14 25 67 

G.L. c. 33, §15 25 67 

G.L. c. 33, §23 25 67 

G.L. c. 33, §26 25 67 

G.L. c. 35, §11 67 158 

G.L. c. 35, §20 67 158 

G.L. c. 38, §1 26 69 

G.L. c. 40, §8C 71 168 

G.L. c. 46, §1 29 72 

G.L. c. 46, §13 62 148 

G.L. c. 53, §19 9, 10 53, 54 

G.L. c. 53, §19 11 54 

G.L. c. 53, §19 12 55 

G.L. c. 53, §19 13 56 

G.L. c. 53, §19 14 57 

G.L. c. 53, §19 15 57 

G.L. c. 53, §19 16 58 

G.L. c. 53, §19 17 59 

G.L. c. 53, §19 18 59 

G.L. c. 53, §19 19. 20 61, 61 

G.L. c. 53, §19 21 62 

G.L. c. 53, §19 22 63 

G.L. c. 55 69 165 

G.L. c. 55, amended by St. 1973, c. 1173 37 84 

G.L. c. 55, §2A 37 84 

G.L. c. 55, §2A 55 127 

G.L. c. 55, §16 55 130 

G.L. c. 55, §23 55 130 

G.L. c. 55, §24 55 130 

G.L. c. 62B, §1 49 119 

G.L. c. 64D, §3 51 120 

G.L. c. 66, §8, as amended by St. 1974, c. 14 52 124 

G.L. c. 66, §10, as amended by St. 1973, c. 1050, 

§§1 and 3 28 71 

G.L. c. 66, §10 63 150 

G.L. c. 66, §17A 56 133 

G.L. c. 69 1 43 

G.L. c. 69 30 75 

G.L. c. 70, §4 65 153 

G.L. c. 71, §37D 1 43 

G.L. c. 71, §48 65 153 

G.L. c. 73, §§1, 16 44 95 

G.L. c. 75 44 94 

G.L. c. 75A, §7 44 96 

G.L. c. 75B, §1 et seq 72 170 

G.L. c. 75B, §10 44 96 

G.L. c. 76, §§5, 16 1 40 

G.L. c. 78, §19 61 146 

G.L. c. 79 49 117 

G.L. c. 85, §30 47 111 

G.L. c. 90, §9 5 49 

G.L. c. 90, §§4, 20a, 20c 2 44 

G.L. c. 90, §358 inserted by St. 1960, c.756. §1 3 45 



P.D. 12 



199 



OPINION 



PAGE 



G.L. 

G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
G.L. 
St. 1 
St. 1 
St. 1 
St. 1 
St. 1 
St. 1 
St. 1 
St. I 
St. 1 
St. 1 
St. 1 
St. 1 
St. 1 
St. 1 
St. 1 
St. 1 
St. I 
St. 1 
St. I 
St. I 
St. 1 
St. 1 



90. §§35-52 

91, §11 

93. §§29-33 

93D. as amended by St. 

12. §24 

17. §2 

I8E. §2 

19. §51A 

19. §§51A-5IG 

31. §40 

36. §6(44) 

42. §1 

42, §3 

43, §3. amended by St. 
50E 



1971, C.1070 



1973, C.1152, §1 



151A, §64 

67. §§1-10, 60 

68. §§21-23 

72. §§4, 11(a). 26, 48-68. 

75, §il3M 

80 



C.207, 

C.208. 

C.218. 

C.218. 

C.271, 

C.273. 

C.276. 

C.276. 

c.276. 

C.277, 
874, c. 
876, c. 
897, c. 
897, c. 
897, c. 
908, c. 
914. c. 
918. c. 
920. c. 
948, c. 
948, c. 

951, c. 

952, c. 
954, c. 
954, c. 

954, c. 

955, c. 

956, c. 
956, c. 

956, c. 

957, c. 
959, c. 



§§38, 39. 

§23 

§§33, 35. 

§36A 

§43 

§1 

§1 



§100A.. 
§100C .. 

§13 

320 

204, §5.. 
172, §23 
172, §33 
172 



604(93) 

372. §§1.2 

257, §90 

546, §1 

645, §§7, 8 

645, §9(d) 

799 §§1-1 1 (Specifically 1, 3,4) 
556 



590 

681 

403, §6 

693, §1 

465, repeals St. 1951, c.799 

465, §§1-35 (Specifically 3(n), 3(p), 27, 29) 

718, §6 

657 

259, amending G.L.c. 90, §9 



3 

24 
46 
46 
64 
68 
68 
66 
59 
71 
7 

35 
35 
33 
34 
56 
38 
38 
38 
76 
68 
31 
5 
6 
55 
56 
59 
6 

56 
56 
55 
25 
25 
27 
27 
27 
25 
27 
51 
51 
30 
60 
3 

49 
25 
44 
49 
49 
3 
3 

49 
49 
5 



45 

65 

100 

100 

151 

164 

163 

157 

139 

168 

51 

82 

82 

79 

80 

133 

87 

87 

86 

175 

160 

75 

49 

50 

130 

133 

138 

50 

131 

131 

129 

67 

67 

70 

70 

70 

67 

70 

121 

121 

74 

142 

46 

115 

67 

94 

118 

118 

46 

46 

118 

118 

49 



200 P.D. 12 

OPINION PAGE 

St. 1962, c. 226 25 67 

St. 1962, c. 648, amending G.L. c. 75 44 94 

St. 1963. c. 410 3 46 

St. 1963, c. 822, §3 49 118 

St. 1966, c. 601 as amended by St. 1968. c.480 8 52 

St. 1966, c. 690, §3 32 78 

St. 1967, c. 616, §3 49 118 

St. 1971, c. 622 1 40 

St. 1971, c. 1070 amending c. 93 by inserting c. 93b 46 100 

St. 1972. c. 765 49 118 

St. 1972. c. 802 33 78 

St. 1972, C.805 38 

St. 1973, c. 426, §36, amending G.L. c. 25, §2 4 48 

St. 1973, C.426, §§36,48 4 48 

St. 1973. C.760. amending G.L. c.32, §4, by 

inserting (p) to subdivision (1) 43 93 

St. 1973, 6.859, §§1, 2 26 69 

St. 1973, c. 981. §§1-12 (specifically 1.2,4) 48 112 

St. 1973, c. 1038 50 119 

St. 1973, C.1050, §§1. 3 28 71 

St. 1973, c. 1173 55 126 

St. 1973. c. 1189, §3 8 52 

St. 1973, c. 1196 65 153 

St. 1973. C.1215. §15 40 89 

St. 1974, §26 23 64 

St. 1974, c. 408 75 174 

St. 1974, c. 835, §4 57 134 

St. 1974. c. 180 54 125 

St. 1974. c. 859 55 126 

St. 1974, c. 558, §20 45 97 

St. 1974, c. 554 41 90 

St. 1974, c. 851, §3 47 111 

St. 1974, C.361, §1 amending G.L. 30A 44 94 

St. 1974. cc. 313. 423. 431 37 84 

St. 1974. c. 637. §19 32 78 



FEDERAL STATUTES 

49 U.S.C. §1501 3 46 

49 U.S. C. §1718(3) 3 46 

14C.F.R. §§77.1-77.75 3 46 

14C.F.R. §§77. 23(b) 3 46 

LR.C. §3121(b)(7) 43 92 

2 U.S.C. §261 et. seq 48 113 

P.L. 89-285. (23 U.S.C, §131) 46 100 

23 U.S.C. §131 (P.L. 89-285) 46 100 

42 U.S.C. §§401. et seq 43 93 

10 U.S.C. §8852 25 67 

12 U.S.C. 1715L 40 

Internal Revenue Code of 1954. §6109. 

26 U.S.C. 6109. as amended by P.L. 87-361 56 132 

Privacy Act of 1974. P.L. 93-579, 88 Stat. 

1896, 5 U.S.C. A. 552a(7) 56 132 



P.D. 12 



201 



OPINION 

Emergency Jobs and Unemployment Assistance 

Act of 1974. P.L. 93-567, 88 Stat. 1845 56 

Comprehensive Employment and Training Act 

of 1973 (CETA), P.L. 93-208. 87 Stat. 839 56 

Pub. L. 93-247, Child Abuse Prevention and 

Treatment Act 59, 66 

45C.F.R. 1340.3-3(d)(2)( ) 66 

42 U.S.C. §§5101-5106 66 

42 U.S.C. §§4151-4156 68 

2 U.S.C. §403 69 

2 U.S.C. §431 69 

2 U.S.C. §439 69 

2 U.S.C. §591 69 

Federal Election Campaign Act 1974 

P.L. 93-443, §I04(a), 18 U.S.C. §591 (amending 

18 U.S.C. 591) 69 

Federal Election Campaign Act 1974 

P.L. 93-443. §301, 2 U.S.C. §453 (amending 

2 U.S.C. 403) 69 



PAGE 

131 

131 

139, 157 
157 



166 
166 
166 



166 



166 



U.S., MASS. CONSTITUTIONS 

U.S. Const. Art. VI 69 166 

U.S. Const. Amend. 1 47 111 

U.S. Const. Amend. 1 48 114 

U.S. Const. Amend. 1 55 127 

U.S. Const. Amend. 1 65 156 

U.S. Const. Amend. 1 48 114 

U.S. Const. Amend. XIV 55 127 

U.S. Const. Amend. XIV 64 152 

Mass. Const. Art. II, as amended by 

Art. LXXXIX, §6 27 71 

Mass. Const., Pt. 1. Art. XX. XXX 58 136 

Mass. Const., Pt. 2. Art. 11, c. 1 58 136 

Mass. Const., Pt. 2, Art. II, c. 3 73 171 

Mass. Const., Pt. 2, Art. 11, c. 3 74, 76 173, 176 

Mass. Const., Pt. 2, Art. Ill, c. 3 74 

Mass. Const., Pt. 2, Art. IV, c.l 58 136 

Mass. Const., Pt. 2, Art. IV, c.2 58 136 

Mass. Const. Art. CI , 53 124 

Mass. Const., Declaration of Rights, Art. X 75 174 

Mass. Const., Declaration of Rights 48 1 14 

Mass. Const.. Amendments, Art. LXIll. §§2,3,5 58 136 



MISCELLANEOUS 



MacDougall, "Married Women's Common Law Rights to 

their Own Surnames." 

Women's Rights Law Reporter 

Vol. 1, No. 3, 1972-1973, p. 2 5 

Air Force Regulations 35-54 §§23(b) ( 1) and 24 25 

Air Force Regulations 36-15 §2-13(d) (1) and 3-7(d) 25 



50 
68 
68 



202 P.D. 12 

OPINION PAGE 

Air National Guard Regulations 36-02 §§4(1) and 

5(2) and 6(a) (b) (3) and 12(b) (2) and 15 (a) and 16 25 68 

6 Oxford English Dictionary (1961) 380 25 - 68 

Websters 3rd New International Dictionary 25 68 

Dictionary of U.S. Army Terms (Army Reg. 310-25, 

June, 1972) 25 68 

Air Force Dictionary (ed. 1956) 25 68 

Kotin, Lawrence, "Equal Educational Opportunity: 

The Emerging Role of the State Board of Education," 

50 B.U.L. Rev. 211 (1970) 30 75 

Federal Income Tax Regulations 

§31.3401(e)-l(b), 

§31.3401(e)-l(d), (Internal Revenue Code) 49 119 

Report of the Special Commission, H. No. 6164 

(1974) 47 111 

Rule §9K adopted pursuant to G.L. c. 93, §29, 

(July 23, 1969) now 4(g) in Revised Rules 

and Regulations 46 101 

10 V.S.A. §321-345 (Vermont Statutes) 46 107 

House Document No. 3350 of 1962 (Report of the 

Special Commission on Budgetary Powers of the 

University of Massachusetts and Related Matters 44 95 

Resolution of Teachers Retirement Board 

October 17, 1974 43 92 

Administrative Bulletin 72-10 49 115 

Subsidiary Accounts and Expenditure Code 

Numbers for Budgetary Control 49 115 

House Resolution 5823 of April 16, 1975 58 135 

Mass. Reg. 2.16 Criminal History Systems Board 56 132 

I.R.S. Regs. 1.6109-1, 26 C.F.R. 6109 56 132 

29 C.F.R. 94,4(bb), 39 Fed. Reg. 19886 (June 4, 1974) 56 131 

St. 1973, c. 1050 63 150 

S.J.C. Rule 3.22 Disciplinary Rule 2-106 67 159 

S.J.C. Rule 3.22, Disciplinary Rule 5-105 67 159 

41 C.F.R. §101-19. 604A 68 160 

Senate Conference Report No. 93-1438 of Oct. 7, 1974 69 166 

1962 Report of the Special Commission on 

Budgetary Powers of the University of 

Massachusetts and Related Matters 72 170 



>^'